One-time gross violation by an employee. For three gross violations of traffic rules will be deprived of rights for a year and a half. What is the meaning of the new bill? Gross violation of labor discipline

"HR service and enterprise personnel management ", 2010, N 10

Understanding the intricacies of litigation tactics<1> helps the employer and the employee not only to competently participate in the trial, but also to objectively assess the court's conclusions set out in the court decision, analyze their behavior during the trial and use the experience gained, including negative ones, in the future. However, it is better to learn from someone else's experience. For this, an analysis of the court decision rendered by the court on labor dispute on a claim for the reinstatement of an employee who was dismissed on the grounds provided for in paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

<1> According to clause 10, part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation by the head of the organization (branch, representative office), his deputies job responsibilities.

When considering a labor dispute, it is necessary to have an idea of \u200b\u200bwhat circumstances are relevant to the case, since it is they that are subject to proof. Their correct qualifications often make it possible to independently determine the validity of the application of disciplinary measures, including in the form of dismissal.

In some cases, this makes it possible to make a competent decision before the court settles the labor dispute, which helps to reduce the "employer" risks. It should be noted that the outcome of consideration and resolution of a labor dispute largely depends on the choice of the disputing parties of the position of the defense, methods of proving the circumstances that are important for the case. To do this, you need to know your procedural rights, namely: the ability to promptly and competently file petitions, submit objections, give explanations on the merits of the dispute, bring comments on the protocol, appeal against decisions (ruling) of the court. Failure to use their right often entails negative consequences.

Fable

By the decision of the district court of the city of Ufa, the Republic of Bashkortostan, S. dismissed on the grounds provided for by paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation (one-time gross violation of labor duties), was reinstated at work, in his favor from the defendant LLC "B" the average earnings for the period of forced absenteeism for the period from 10/29/2009 to 01/29/2010 in the amount of 130,091 rubles were collected; compensation for moral damage in the amount of 5,000 rubles. and the cost of paying for the services of a representative in the amount of 6,000 rubles.

S. worked at LLC "B" as Deputy Director for Economic Security since 01.02.2006. By order of 10/16/2009, he was dismissed from work for a single gross violation of labor duties under paragraph 10 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. Disagreeing with the employer's decision, S. went to court with a claim for reinstatement at work, recovery of average earnings during the forced absence, and compensation for moral damage.

Employee position

During the trial, S. indicated that he considered his dismissal to be illegal, since the employer did not follow the procedure for dismissing him, namely:

• the order does not indicate what kind of violation of labor duties he committed;
• before the dismissal, he was not asked for an explanation;
• the work book on the last day of work was not issued to him;
• the employer refused to give any explanation about the reasons for the dismissal under paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Defendant's position

The employer's representative did not acknowledge S.'s claims. In his opinion, the plaintiff's claims for reinstatement at work and the recovery of average earnings during the forced absence from work are unfounded. S. was dismissed legally due to the fact that he committed a gross violation of his job duties.

For S.'s work, under a power of attorney, a Ssang Yong Kyron DJ car was provided, purchased by the employer under a lease agreement concluded with CJSC "E", which presented the defendant with a demand to return the car by sending a written notice to him. However, the plaintiff refused to return the car entrusted to him, which forced the employer to apply on 14.10.2009 to the Internal Affairs Directorate for S. district of Ufa to initiate a criminal case on this fact.

In support of his arguments, the defendant submitted the following documents to the court:

• notification of JSC "E", which contained a request to return the car and a warning about the imposition of penalties for failure to fulfill the obligation to return the car;
• an agreement with the plaintiff on full individual material liability;
• a decision to refuse to initiate a criminal case, which contains information that the plaintiff did not return the car that is the subject of the lease agreement.

However, the court of first instance refused to admit the said documents to the defendant as written evidence.

Established by the court (during the trial)

The court, in the course of considering the labor dispute, found that S. was dismissed from work by order of 16.10.2009 for a single gross violation of labor duties under paragraph 10 of Part 1 of Art. 81 of the Labor Code of the Russian Federation.

Position of the court and reasoning of its decision

Recognizing S.'s dismissal unlawful, the court reasoned its decision as follows.

Firstly, according to the court, the defendant (employer) did not present any evidence confirming the fact of the plaintiff's admission of a gross violation of labor duties, which could lead to property damage to the organization. Meanwhile, the duty to prove that such a violation actually took place and was of a gross nature lies with the employer. In addition, the defendant did not provide evidence that the employment contract had imposed obligations on S. that could have caused property damage to the organization.

Secondly, the order to dismiss S. from work does not contain any information about what kind of violation of his labor duties S. committed, which does not allow the court to determine the presence (absence) of a legal basis for termination with the plaintiff employment contract on the grounds specified in the order.

In connection with the above, the court concluded that there was no legal basis for the dismissal of S. on the grounds provided for in paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation (one-time gross violation by the head of the organization (branch, representative office), his deputies of their job duties). On this basis, the court came to the conclusion that the employee was reinstated in his previous job, since it is not possible to consider this dismissal to be legal, while satisfying all the claims made by the employee and his representative.

Analysis

Evaluating the judgment, it should be said that the court examined the legality of S.'s dismissal solely from the standpoint of the presence (absence) of the grounds for his dismissal, provided for by law.

Arbitrage practice. In accordance with paragraph 49 of the Resolution of the Plenum The Supreme Court RF of 17.03.2004 N 2 (as amended on 28.12.2006) "On the application by the courts Russian Federation Labor Code Of the Russian Federation "(hereinafter - Resolution No. 2), the employer has the right to terminate the employment contract under clause 10, part 1 of article 81 of the Code with the head of the organization (branch, representative office) or his deputies, if they committed a single gross violation of their labor duties.

Guided by the above explanation, it was no coincidence that among the circumstances to be proved, the court determined the fact of the plaintiff S.'s admission of a gross violation of labor duties. In accordance with Part 2 of Art. 56 Code of Civil Procedure of the Russian Federation, the duty of the court to determine what circumstances are relevant to the case.

At the same time, the concept of "gross violation" provided for by labor legislation is of an evaluative nature, i.e. is subject to assessment by the body considering the labor dispute (in the situation under consideration, by a court using judicial discretion).

Judicial board for civil affairs The Supreme Court of the Republic of Bashkortostan, during the consideration of the labor dispute at the cassation instance, agreed in this part with the conclusions of the court of first instance, indicating that the question of whether the violation was gross is decided by the court taking into account the specific circumstances of each case.

Arbitrage practice. In accordance with clause 49 of Resolution No. 2, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, regard the failure to fulfill the duties assigned to these persons by the labor contract, which could lead to harm to the health of employees or the infliction of property damage to the organization.

In the opinion of the Judicial Collegium for Civil Cases, the district court of Ufa of the Republic of Bashkortostan quite rightly imposed the obligation to prove the existence of a gross violation of labor duties - a circumstance that is significant for the case - assigned to the defendant (employer).

This is fully consistent with the provision provided for in Part 2 of Art. 56 of the Code of Civil Procedure of the Russian Federation, according to which the court determines which party is to prove the circumstances relevant to the case.

Guided by the explanations of the Supreme Court of the Russian Federation, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan supported the position of the court of first instance with regard to the distribution of responsibilities for proving circumstances relevant to the case. At the same time, the cassation instance concluded that the district court of Ufa of the Republic of Bashkortostan correctly concluded that LLC "B" did not provide the court with evidence that the deputy director for economic security of the company S. committed a single gross violation of his job duties, paying special attention to the fact that that the representative of the defendant in the course of the proceedings admitted that he did not have documents confirming the violation by the plaintiff of his job duties.

Arbitrage practice. In accordance with paragraph 49 of Resolution No. 2, the duty to prove that such a violation actually took place and was of a gross nature lies with the employer.

Appealing against the decisions of the district court of Ufa of the Republic of Bashkortostan, based on the provision provided for in paragraph 49 of Resolution No. 2, the defendant indicated that there is reason to regard S.'s failure to fulfill the obligations imposed on him by the employment contract as a gross violation of labor duties by the Deputy Director for Economic Security.

S. refused to return LLC "B" vehicle, which served, according to the defendant, the basis for property liability, which LLC "B" bears under the lease agreement concluded with CJSC "E", in the form of the cost of the car in the amount of 1,379,331, 35 rubles. and penalties stipulated by this agreement. It is this circumstance, according to the defendant, that proves the infliction of property damage on him. This is the gross violation of labor duties committed by S.

However, in the opinion of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan, this argument cannot affect the legality of the decision in terms of recovery at work for the following reasons.

Firstly, when considering the labor dispute in the court of first instance, the defendant did not submit documents confirming the fact of imposing certain labor duties on S., which could lead to property damage to the organization.

Referring to the provisions of Art. 347 Code of Civil Procedure of the Russian Federation, the court of cassation assessed the written evidence available in the case. The court of the cassation instance has the right to evaluate the additionally presented evidence only if it recognizes that they could not be presented by the party to the court of first instance. Thus, in the opinion of the Supreme Court of the Republic of Bashkortostan, the agreement on full financial liability submitted to the cassation instance cannot be taken into account, since it was not presented to the first instance court, while nothing prevented the defendant from submitting it to the first instance court ...

Secondly, the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Bashkortostan came to the conclusion that the defendant's argument, set out in the cassation appeal, on the submission of documents confirming the fact of gross violation of his labor duties (requirement to LLC B "return the car and impose penalties, an agreement with the plaintiff on full individual financial liability and a decision to refuse to initiate a criminal case, which indicates that the plaintiff did not return the car, which is the subject of the lease agreement), which were not attached to the written materials of the case by the court first instance, for the following reasons.

According to the minutes of the court session, it follows that the representative of the defendant N. to the questions of the court on 09.10.2010 answered the following: “No, according to the act of acceptance and transfer, the car of Sang Yong S. was not transferred, from job description this does not follow, there is no written evidence, there is only oral evidence. No, I have no evidence that S. has committed a gross violation of labor duties. "

In accordance with Art. 231 of the Code of Civil Procedure of the Russian Federation, the persons participating in the case, their representatives have the right to familiarize themselves with the protocol and, within five days from the date of its signing, submit in writing comments on the protocol indicating the inaccuracies and (or) its incompleteness.

Meanwhile, comments on the minutes of the court session on these circumstances were not submitted by the defendant. Consequently, what was recorded in the minutes of the court session of 09.02.2010 is true and correct, that is, the defendant admitted the absence of documents, did not file any requests for the attachment of documents.

Assessment of the situation (conclusions)

Guided by the explanations of the Plenum of the Supreme Court of the Russian Federation (Resolution No. 2), it is possible to conduct self-analysis the legality of the dismissal of an employee on the grounds provided for in clause 10, h. 1, Art. 81 of the Labor Code of the Russian Federation.

In this regard, it is necessary to analyze the employer's compliance with two fundamental points stipulated by labor legislation:

1. dismissal should be reasonable, i.e. the basis chosen by the employer must correspond to the actual circumstances taking place;
2. when dismissing an employee, it is necessary to comply with the requirements established for the procedure for terminating labor relations with him, i.e. it should be legal.

To determine the existence of a legal basis in the situation under consideration, first of all, it should be remembered that the dismissal of an employee is allowed only if there is a disciplinary offense. Therefore, first you need to check its presence.

Disciplinary misconduct consists of elements of fundamental importance. The absence of at least one of them allows us to assert that there is no corpus delicti (disciplinary offense) in general and, accordingly, there is no legal basis for terminating the employment contract.

Disciplinary misconduct consists of four elements: subject, object, objective side, subjective side.

Let us analyze what elements of the misconduct are present (proven in the course of the trial) in the case under consideration.

The first element is the subject of the offense; it means an employee who has committed a violation of labor duties.

According to clause 10, part 1 of Art. 81 of the Labor Code of the Russian Federation, not any employee can act as such a subject, as is typical, for example, for the cases provided for in paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, but only the one who holds the position provided for by the list contained in this legal norm.

So, for a single gross violation of their labor duties, an employment contract can be terminated with the head of the organization, the head of the branch or representative office of the organization, and their deputies. The list of persons provided for by the analyzed article is closed and is not subject to broad interpretation. Consequently, if a gross violation of labor duties was committed by a financial director who, by his status, performs the functions of a deputy head of the organization, but does not occupy the position provided for by the list of this article, he is not the proper subject of this offense. Then there is reason to assert that there is no corpus delicti and, accordingly, a legal basis for dismissal on the grounds provided for in paragraph 10 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. So dismiss cFO on the basis under consideration it is impossible. Even if they have committed a gross violation of labor duties.

The Plenum of the Supreme Court of the Russian Federation draws attention to this, which in paragraph 49 of Resolution No. 2 emphasizes that within the meaning of the content of paragraph 10 of part 1 of Art. 81 Labor Code supervisors of others structural units organizations and their deputies, and chief Accountant organizations cannot be dismissed on this basis.

Arbitrage practice. In paragraph 49 of Resolution No. 2, the Supreme Court of the Russian Federation emphasizes that, within the meaning of the content of paragraph 10, part 1 of Art. 81 of the Labor Code, heads of other structural subdivisions of the organization and their deputies, as well as the chief accountant of the organization, cannot be dismissed on this basis.

Meanwhile, S. held the position of Deputy Director for Economic Security, therefore, in relation to the grounds for dismissal under consideration, he is a proper subject of a disciplinary offense.

The second element of the composition offense is an object, i.e. what the violation is aimed at. Therefore, it is necessary to check and assess what was violated, what conditions are stipulated by law, local regulations, employment contracts, etc. Is this employee properly familiar with the conditions (rules) that he violated, or was he obliged to know what is provided for, for example, regulatory legal acts... In other words, the object of the offense is a rule established at the legislative level, at the employer's level, at another level that the employee must either know or with which he must be properly familiarized.

If the employer has not established such a rule, or the employee has not been properly acquainted with it, there are grounds to assert that there is no object of the offense and, therefore, the absence of its composition as a whole. This has consequences similar to the absence of a proper offender.

In the situation under consideration during the trial, the court made efforts to clarify the object of the offense, i.e. what documents stipulated the obligation of employee S. to use the car purchased by the defendant from a third-party organization, what norms stipulate the obligation to return the car transferred to him, other circumstances.

Without documents confirming or refuting the existence of the object, it is difficult to say whether the object of the offense took place or not. The employer is obliged to confirm its presence. Consequently, he needs to indicate the object of the offense in the content of the order to bring the employee to disciplinary responsibility, including in the form of dismissal. In other words, the order must indicate the object of the offense, i.e. make a reference to the provision that was violated by the employee.

However, as can be seen from the case file, the employer, when issuing an order to bring S. to disciplinary responsibility, did not indicate this in his order. Consequently, the employer has very limited opportunities to prove it. This circumstance was reflected in the judgment of the district court of Ufa, issued on 09.02.2010.

The third element, which is usually given the most serious attention and importance, is objective side an offense, which in labor law, as a rule, refers to the unlawful behavior of an employee. It is these circumstances that the participants in the labor dispute are mainly trying to prove or disprove in the course of the trial.

In this case, the employee built the defense position as follows: he argued that he did not know why he was fired, thus insisting on the absence of not only the object of the offense, but also the objective side, since, in his opinion, they were not allowed any offenses.

In contrast, the position of the employer's defense seems to be less successful, since the circumstances to be proved were chosen by him incorrectly.

The behavior of an employee that violates any legal norms provided by law can be considered illegal. In particular, the failure of the employee to fulfill the labor obligations stipulated by the employment contract constitutes a violation of his obligations under Part 2 of Art. 21 of the Labor Code of the Russian Federation. In addition, the Internal Rules work schedule contain such an obligation for employees who work for a specific employer on the terms of an employment contract. The obligation to comply with the Internal Labor Regulations arises from the content of Art. Art. 15, 21 of the Labor Code of the Russian Federation.

In the case under consideration, the employer was obliged to prove the unlawfulness of the employee's behavior, i.e. what was the violation of labor duties by the employee. In other words, it was necessary to prove that the employee was obliged to return the car to the employer, that this obligation was provided for certain norms (terms, conditions) that these norms govern labor relations (and not civil law, for example).

The existence of an agreement on full material liability concluded with S. raises at least questions, the main of which is the validity of the conclusion of such an agreement.

It is known that by virtue of Part 2 of Art. 244 of the Labor Code of the Russian Federation, such an agreement can only be concluded with an employee who holds a position or performs work stipulated by the corresponding Lists, approved. Resolution of the Ministry of Labor of Russia of December 31, 2002 N 85<1>.

<1> See the Decree of the Ministry of Labor of Russia of December 31, 2002 N 85 "On approval of the Lists of positions and jobs replaced or performed by workers with whom the employer can conclude written agreements on full individual or collective (brigade) material liability, as well as standard forms agreements on full liability "// Bulletin of normative acts federal bodies executive power. 2003. N 12.

There are only two of them:

• The list of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full individual financial liability for shortages of entrusted property;
• The list of works, during the performance of which full collective (brigade) financial liability for the shortage of the property entrusted to employees can be introduced.

If the work performed by S. does not fall under the List of works, during the performance of which full collective (brigade) material liability for the shortage of property entrusted to the employees may be introduced, then the conclusion of an agreement with him on full material liability has no legal significance for recovering material damage from him in full size.

With regard to this case, the agreement on full liability concluded with S. is irrelevant in the case, since the subject of the dispute is not the recovery of material damage caused to the employer by the employee in the performance of his job duties, but challenging the legality of his dismissal for committing a gross violation of labor responsibilities.

Thus, the representative of the defendant incorrectly identified the circumstances relevant to the case, which are subject to proof. On the contrary, the court of first instance absolutely reasonably refused to attach to the written materials of the case an agreement on full liability from the standpoint of the relevance of the evidence provided for in Art. 55 Code of Civil Procedure of the Russian Federation. This document confirms the possible infliction of property damage to the employer in accordance with the norms of civil law, i.e. circumstances that are not relevant to the case.

The Plenary Session of the Supreme Court of the Russian Federation, citing as an example an offense that can be classified as a gross offense, made an attempt to orient the participants in labor relations regarding the determination (assessment) of the nature of the offense, since it is not possible to define the concept of "gross violation" in relation to any situation ... It is evaluative and subject to appropriate assessment by a court of general jurisdiction.

In particular, in accordance with clause 49 of Resolution No. 2, it is proposed to regard as a gross violation of labor obligations by the entities indicated in the list, the failure to fulfill the obligations imposed on these persons by the employment contract, which could lead to property damage to the organization. However, what is stated in Resolution No. 2 does not indicate the absolute need for the employer to prove the possible losses that he may incur as a result of S.'s behavior, which consisted in not returning the car to him. The circumstance that is significant for the case is, first of all, S.'s commission of unlawful behavior, which the employer had to prove.

As indicated by the defendant in the cassation appeal, he was denied the stated requirement to attach a number of documents, the assessment of which allows us to state the following.

These documents do not relate to the labor dispute considered by the court. Notification received from CJSC "E" containing a requirement for LLC "B" to return the car, and a threat to impose property liability in case of non-fulfillment, including the imposition of penalties, an agreement with the plaintiff on full individual material liability, as well as an order to refuse to initiate a criminal case, which indicates that the plaintiff did not return the car, which is the subject of the lease agreement, do not confirm the fact of the employee's illegal behavior.

The employer needed to prove another circumstance that is directly relevant to the case. He had to confirm that S., refusing to return the car, had violated certain rules (conditions) with which he was familiarized and which he was obliged to comply with (observe). In other words, it was required to prove that S.'s behavior was unlawful, i.e. it violated certain (specific) rules of conduct. Moreover, it was also necessary to prove that the violation committed by S. was gross. Only at this stage it made sense to be guided by the explanations set out in this issue in Resolution No. 2.

Instead, the defendant's representative directed all efforts to prove that property damage was caused to him (the possibility of such consequences). However, these circumstances are relevant to another dispute, for example, a dispute over compensation for material damage caused by an employee.

Taking into account the above, the court refused to attach these documents quite reasonably. At the same time, there is no reason to assert that the court in this situation violated the principle of adversariality and equality of the parties, provided for in Art. 12 Code of Civil Procedure of the Russian Federation, who did not accept the evidence presented by the defendant.

The fourth element disciplinary offense is guilt an employee committing illegal behavior. However, in view of the fact that the court established the absence of such elements of the offense as its object and objective side, which serves as the basis for the assertion that there is no corpus delicti in the employee's behavior, there is no need to establish the presence (absence) of the employee's fault.

It should be noted that the court disregarded issues related to the employer's compliance (violation) of the procedure for dismissing an employee. However, this is of great importance for the case on the claim for the reinstatement of an employee at work, the dismissal of which is the application of disciplinary measures, since a violation of the procedure for terminating an employment contract serves as a basis for recognizing such dismissal as illegal.

In accordance with paragraph 53 of Resolution No. 2, the court was obliged to check the employer's compliance with the procedure for terminating the employment contract. In other words, it was necessary to check compliance with the requirements for the procedure for bringing him to disciplinary responsibility in the form of dismissal at the initiative of the employer, incl. taking into account the severity of the offense and the circumstances under which it was committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the employee's previous behavior, his attitude to work. If, when considering the case for reinstatement at work, the court comes to the conclusion that the misconduct really took place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

Arbitrage practice. According to paragraph 53 of Resolution No. 2, the employer must provide evidence showing not only that the employee has committed a disciplinary offense (that is, there is a legal basis for dismissal), but also the employer's compliance with the procedure for terminating the employment contract. In other words, it is necessary to check compliance with the requirements for the procedure for bringing him to disciplinary liability in the form of dismissal at the initiative of the employer, incl. taking into account the severity of the offense and the circumstances under which it was committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the employee's previous behavior, his attitude to work. If, when considering the case for reinstatement at work, the court comes to the conclusion that the misconduct really took place, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

Evaluating the statement of the defendant's representative contained in the cassation appeal regarding the explanations given by him on the claim, in particular, that he did not make statements during the court session that formed the basis of the reasoning part of the court decision and served as the basis for S.'s reinstatement at work, it should be noted following.

The defendant's representative did not fully exercise the procedural rights granted to him as a party to the labor dispute. He did not use his right to familiarize himself with the contents of the court record, to bring appropriate comments to the record in a timely manner, which deprived him of the right to protect rights, freedoms and legitimate interests the person (employer) represented by him properly.

I. A. Kostyan

department of Labor Law

Moscow State University M.V. Lomonosov,

Dismissal from the enterprise of an employee for repeated violation of elementary obligations is possible. And this applies to negligent employees who simply do not want to work, but are looking for a way to make simple money, while not wanting to receive a salary.

What concerns a breach of duty?

In the process labor activity there are all sorts of nuances. Unfortunately, it also happens when it is necessary to fire an employee from the enterprise.

There are no more options, he repeatedly does not fulfill his labor duties, starts the working day in an inadequate state, or simply does not fulfill the functions assigned to him.

List of grounds for dismissal:

1. ... Absence from the workplace for more than half of the work shift or more than 4 is considered absenteeism. If the employee does not appear at the workplace in due time, then the employer can safely prepare an administrative document on his dismissal;
2. The employee, acting in accordance, came to work drunk or under the influence of drugs. He runs the risk of being fired from the enterprise, regardless of his labor achievements;
3. If the person with whom the employment contract is concluded has committed, then this case is submitted to the employer for consideration. According to the Labor Code of the Russian Federation, if the amount of theft in monetary terms does not exceed the average monthly, then the manager can issue an administrative document on withholding the amount of damage from the employee's salary, but if the amount of damage exceeds the average monthly salary, then everything is decided by a court decision;
4. Disclosure of state secrets or confidential information, the non-disclosure of which he signed in the employer's documents, can also become a reason for dismissal;
5. Failure to comply with the requirements, if this entailed a violation of health and a threat to the life of other persons carrying out activities in accordance with the employment contract.

All cases are considered individually and may be grounds for dismissal.

Details about truancy

Absence without reason for more than 4 hours.

If an employee was absent without a valid reason during the entire working day at the workplace, then such a circumstance is regarded as absenteeism.

In the outdated edition of the Labor Code of the Russian Federation, absenteeism was considered absenteeism for 4 hours or more, but when considering this provision, a slight inaccuracy was made, namely, not all workers had a working day of 4 hours. As a result of these circumstances, absenteeism is considered absence from work for 4 hours.

The reason for dismissal from the enterprise is:

1. The employee does not fulfill his job duties, even if he is present on the territory of the enterprise, and the manager at this time cannot find him;
2. Unauthorized leaving the place of work without prior warning to the administration;
3. Untimely communication to the employer about what to take. The time is given for two weeks so that the manager can correctly orient himself and recalculate the workforce;
4. Leaving on trade union leave without a corresponding document, in which it was necessary to sign;
5. The use of previously worked time for personal needs without a formal application.

As an example, such a factor can be cited, for example, an employee previously applied to his immediate supervisor with a request for time off, since he needs to undergo a technical inspection, but his supervisor did not give official permission for the time off and signed the application for a number of reasons. The employee did not show up for work the next day, and this action became the reason for dismissal from the enterprise.

But there are different circumstances, for example, an employee was absent from the workplace due to injury.

In this case, the manager should not rush to dismiss, since it is necessary to find out where his subordinate was after all. It is possible that he will bring a certificate from a doctor.

Drunk appearance at work

There is a norm for the presence of alcohol in the blood.

According to labor legislation, intoxication can occur not only as a result of the use of alcoholic beverages, but also as a result of the use of drugs and toxic substances.

To determine exactly whether a person is drunk or not, it is necessary to conduct a medical examination. Based on the results of the examination, a decision is made on admission to work or suspension from the performance of official duties.

With all such a tough approach in resolving the issue, you should know that at the rate of 80 kg of mass in the presence of 0.5 ppm in human blood, this is about half a liter of beer or 0.75 mg of vodka, an employee cannot be fired. If this dose is exceeded, then you should act in accordance with the letter of the law.

An important caveat: the manager cannot force the employee to undergo this examination, but the employee's refusal also casts doubt on his condition.

Therefore, in practice, it is rather difficult to fire a person for this violation, for this there must be compelling circumstances.

Theft of property

It is necessary to prove the fact of theft.

Labor legislation states that theft of property is an administrative responsibility. An employee who has repeatedly come across this is subject to dismissal from the enterprise.

List of reasons for dismissal:

• the material damage amounted to an amount not exceeding the average monthly earnings of the employee. This circumstance was clarified after an independent examination. As a result, according to the issued administrative document, the amount determined by the commission is withheld from the employee;
• the employee caused material damage to the employer in an amount exceeding his average monthly earnings. After the peer review this circumstance was confirmed. According to the inspection, the employer must go to court, where a decision will be made to deduct a certain amount from the employee's salary;
• the employee, as a result of his incompetence, allowed the loss of the employer's property, which affected the cost of production. For example, he did not take measures to close the valves, while water from the tap flowed out in a large volume. This case needs to be proven, but it also refers to the loss of wealth.

Repeated theft or failure to comply with elementary requirements that have caused damage to the employer's property is a reason for dismissal, but only the employer can make this a reality, in this case he solves many issues, including those related to dismissal.

Disclosure of classified information

The condition is written in the employment contract.

Many specialties and positions provide for mandatory familiarization with classified materials. For this, the assignment of a special stamp is provided.

When familiarizing with the documents, covering information about state secrets, special departments preliminarily acquaint with the non-disclosure documents against signature. The same documents prescribe what will happen if the secret is brought to the attention of third parties.

If these requirements are violated, the employee is automatically dismissed from the enterprise. But before that, an independent check is carried out. If, according to the results of the investigations, the fact of disclosure is confirmed, then an administrative document is issued and the employee is removed from office within a short period of time.

Along with the state secret, there is confidential information and trade secrets. Any enterprise should develop special Regulations on non-disclosure of information, as well as a procedure for the issuance of this information to third parties.

Such cases are subject to investigation and, upon evidence of the fact of disclosure, the employee is considered as a candidate for dismissal.

It is possible that after the information recorded by the employer about the disclosure of classified information, trade secrets or confidential information for the first time, the manager, at his discretion, will make a decision on punishing the employee, and if a repeated violation is revealed, dismissal will follow.

On violation of labor protection requirements

The employee must comply with labor protection requirements.

And special attention is paid to safety measures today. The instructions clearly state what the employee should do and where he should not interfere.

In large organizational structures in addition, health and safety standards can be developed, in which special attention is paid to violations of health and safety. The OSH system can work as follows:

1. The employee is reprimanded for non-fulfillment of elementary requirements. This remark can be included in the list of comments on the first stage of control, while the employee must be familiarized with the indicated defect against signature;
2. If the fact of violation is repeated, the next step will be the deprivation of bonuses. Everything is reflected in the administrative document for the enterprise, it also indicates that with further comments of the same nature, the employee will be fired;
3. If the remark is issued for the third time, then documents for the employee's dismissal are prepared and an Order is prepared.

For gross violations of labor protection requirements, both section managers and shop managers are dismissed, who issued a task that entailed injury to the employee or death.

A whole investigation is carried out and, based on the results, the head is fired. In this case, an order for the enterprise is mandatory, after which they familiarize all employees with this document in order to prevent this situation from happening in the future.

Violation and non-fulfillment of official duties

You must follow the job description.

The development of proper instructions for employees is mandatory, but in some cases it can be useful, therefore the employer seeks to streamline the process of developing and familiarizing with job responsibilities, so that when controversial issues there was no doubt what to do. In total, there are two categories of workers - engineers and workers.

The actions of the management in case of non-fulfillment of their functionality may be as follows:

• for engineering and technical workers, job descriptions are developed, which clearly spell out the rights and obligations. If an employee categorically refuses to perform or simply does not perform the work assigned to him, then after repeated warnings, administrative documents are created.

They are sure to familiarize the employee with signature. The content should include a warning in the event of a repeated violation.

That is, if he once again did not fulfill his duties, he is subject to automatic dismissal from the enterprise. Dismissal is made in an order form;

• it is not necessary for a worker to develop a job description, all of his functional responsibilities recorded in ETKS. He should be introduced to what he has to do during the shift.

For the worker, there is also a system for issuing shift-daily assignments. In case of systematic non-fulfillment of production tasks, the worker is made comments from the management, then a warning Order is drawn up indicating what has not been fulfilled and what will happen in case of a repeated similar violation.

In case of subsequent failures, the worker is dismissed from the enterprise in an orderly form.

All employers need to think carefully about the legality of their actions, since the employee has the right to go to court. To prevent this from happening, it is necessary to clearly state the information in the job description and correctly draw up orders.

To avoid mistakes, all developed draft documents should be submitted for consideration to lawyers and to the trade union committee. If there are comments on their content, then they must be eliminated and only after the document is signed by interested parties and approved by the employer.

Not in all cases it is possible to fire an employee with ease and peace of mind, but it is extremely necessary.

In this video, you will learn about the dismissal for embezzlement.

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Repeatednon-performance by the employee without good reason of his labor duties, if he has a disciplinary sanction (paragraph 5 of Article 81 of the Labor Code of the Russian Federation).

One-time gross violationan employee of labor duties (clause 6 of Article 81 of the Labor Code of the Russian Federation).

List of gross violations of labor duties

is exhaustive and is not subject to broad interpretation:

and) absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift).

b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, narcotic or other toxic drunkenness.

in) disclosuresecrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee.

d) commission at the place of work theft(including small) other people's property, embezzlement, deliberate destruction or damage established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses.

e) violation of requirements labor protection,entailing grave consequences (industrial accident, accident, catastrophe) or knowingly creating a real threat of such consequences.

adoption unreasonable decisionthe head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).

single gross violationthe head of the organization (branch, representative office), his deputies of their job duties (paragraph 10 of Article 81 of the Labor Code of the Russian Federation). ... in particular, failure to fulfill the obligations assigned to these persons by the employment contract, which could result in property damage to the organization or harm to the health of employees.

the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to loss of confidenceto him from the employer (clause 7 of Article 81 of the Labor Code of the Russian Federation);

commission by an employee performing educational functions, immoral offenseincompatible with the continuation of this work (paragraph 8 of Article 81 of the Labor Code of the Russian Federation).

repeated within one year gross violation of the charter educational institution according to clause 1 of article 336 of the Labor Code of the Russian Federation. What is considered a gross violation of the charter, the legislation does not define. This is the prerogative of the head of the educational institution. Most often this term

- physical violence in the form of deliberate injury and / or injury to a child, which causes serious (requiring medical attention) violations of physical, mental health, developmental delay;

- mental violence in the form of threats, insults and humiliation of dignity, excessive demands, systematic unfounded criticism, etc.

Everyone knows that certain circumstances can put bosses before the choice to keep workplace employee or fire him. Dismissal on the initiative of the management in such cases is often recorded by an entry in work book employee. When hiring, HR employees pay close attention to the entries in this document. Therefore, most personnel specialists and employees of personnel departments carefully study the Labor Code of the Russian Federation, especially those parts of it that regulate the procedure for hiring and firing an employee. This is especially true of Article 81, which describes the rules for termination of employment contracts and those cases when dismissal occurs in the event of a single gross violation of labor duties by an employee.

Termination of an employment contract

This issue is covered in detail by Art. 79 of the Labor Code of the Russian Federation. A fixed-term employment contract, as you know, is terminated when its validity period ends. At the same time, the management is obliged to notify the employee 3 days in advance of its completion, this is important, because not all contracts have a specific termination period. Some of them are not determined by date, for example:

• The contract can be concluded while the deputy is performing, job duties absent employees. In this case, the contract ends with the entry of the main specialist to work.
• A contract may be concluded for the time required to complete specific works - it will end upon completion of work.
• Seasonal contracts can also be attributed here, they are concluded for certain period and are completed upon completion.

Termination of contracts initiated by the employer

This process is regulated by Article 81 of the Labor Code of the Russian Federation. It lists the grounds sufficient for terminating contracts, for example:

• Liquidation of an organization;
• Minimization of IP activities;
• Reduction of the company's staff;
• Inconsistency of the specialist with the position or work that he performs;
• Insufficient qualifications of a specialist;
• The inability to confirm the certification or its inconsistency with the knowledge and skills of a specialist recorded by the certification commission;
• Change of company ownership;
• Absenteeism;
• Violation of job descriptions;
• Disciplinary action;
• Presence at work in alcoholic, narcotic, intoxication;
• Disclosure of secrets protected by law;
• Property damage or theft;
• Loss of confidence in the employee;
• Committing moral misconduct (especially if a specialist performs educational functions);
• Making unreasonable decisions (this mostly concerns the management staff of the enterprise);
• Providing falsified documents or false information when concluding a contract. And other misconduct.

There are other circumstances under which the contract can be terminated. And all of them are established by the legislation in force in the Russian Federation. The Labor Code lists several such criteria:

• The applicant may not pass the interview, test or test for professional aptitude (Art. 71);
• The management who led the enterprise to bankruptcy can be removed from work (Article 278);
• Such a decision in relation to the management of the company can be made by the owner (Article 278);
• The teacher can be dismissed for repeated (within one year) violation of the charter (Article 336);
• For the use of rudeness and violence as a method of education (Article 336);
• The athlete can different reasons disqualify for 6 or more months (Article 348);

Termination of an employment contract before the deadline

Contract concluded for indefinite term can be broken off at the initiative of the employer only if there are circumstances that fall under Art. 81. It is important to comply with a number of conditions.

• Such an act cannot be committed without the presence of grounds, of those that are recorded by the Labor Code of the Russian Federation.

For example, if an employee does not fulfill his duties without good reason and at the same time he already has a disciplinary penalty (however, you can dismiss an employee for a single gross violation of labor duties). Article 192 deals with disciplinary sanctions and defines them as a reprimand or reprimand. Such punishment may be imposed on every offense. At the same time, for each offense, only one penalty can be applied, and only for a year, after a year has passed, it is canceled, and it is considered that the employee did not have it (Articles 193-194).

• The fact of the employee's misconduct must be recorded in the documents.

It does not matter in what way this will be done, since the TC TF does not specify this. Therefore, the document can be drawn up arbitrarily. Based on the practice of enterprises, it can be office notesin which misconduct is recorded. After this document is drawn up, the guilty employee must write an explanatory note, and if this is impossible, an act is drawn up (for example, if a refusal to write an explanation is received). Then an order is drawn up, which justifies the application of the penalty. If the employee refuses with the order to get acquainted, the following act is drawn up (Article 193).

• If the employer is going to terminate the contract with the employee, he must take into account the category of the dismissed. Some of them do not meet the criteria described in Art. 81

For example, an employer does not have the right to terminate a contract with a pregnant woman, except when the organization ceases to exist (liquidation, termination of activities). Article 81 of the Labor Code of the Russian Federation prohibits terminating an agreement with such persons as:

1. Mothers with a child under the age of three;
2. Single mothers raising a disabled person until the age of 18;
3. Mothers raising a child under 14 alone;
4. Any person raising such children alone;
5. The only working family member, if there are three or more young children dependent;
6. The only working family member where a disabled person is brought up until the age of eighteen;

There are additional rules with regard to layoffs that apply to certain categories of employees. If your employee is less than eighteen years old, you can terminate the contract with him only if consent is obtained from the juvenile commission and the state labor inspectorate (Article 269), the exception to this rule is the same as in previous cases - liquidation and termination of the company.

There are special rules for the dismissal of workers who are members of a trade union (Article 82). It is possible to dismiss such an employee only taking into account the opinion of the trade union organization, and in the manner prescribed by Art. 373.

For employees who have concluded collective agreement, another procedure for the participation of the trade union organization in this process can also be established (part 4, article 82). From the moment the trade union agreed to dismiss the employee, he must be fired within a month.

Trade unions are also required to participate in staff reductions. For this, the organization must be sent a written notification, and no later than 2 months before the start of reductions. But if the downsizing takes on the scale of mass layoffs, then such a notice must be sent three months before the start of the action (Article 82, Part 1).

• Dismissals must be carried out within the time limits established by law. For example, if an employee leaves for systematic failure to perform duties, then they adhere to the following deadlines:

1. The disciplinary sanction itself can be applied no later than one month from the moment of its discovery, while the time that the employee is sick or resting is not taken into account, as is the time it takes for the trade union to formulate its opinion about the event.
2. The day from which the countdown begins is not the day on which the act was committed. The countdown begins from the day when the authorities became aware of the misconduct.
3. From the day the offense was committed, no more than six months must pass (and this period does not include criminal proceedings);
4. The employee has the right to give an explanation (in writing) within two days, if this is not done, you can start drawing up the act (on the third day);
5. The employee has the right to sign the order of the Directorate on disciplinary sanction within three days from the date of its issuance.

In some cases, an employee with whom the contract is terminated can count on compensation and some guarantees (Article 27).

For example, when reducing staff, the directorate must provide the employee with a position according to his qualifications or a lower position in the same locality (Art. 81 and Art. 180). If there is no such vacancy, the employee must be paid severance pay. Its size is one average monthly salary. The dismissed employee is obliged to keep the average monthly earnings for the period of employment (for a period of 2 months from the date of dismissal, severance pay can be counted in 3 months if the employee applied to the employment service and was not employed in two weeks). More details about the payment regulations are stated in Art. 178. The employer, at its discretion, may establish other compensations and guarantees related to dismissal. The main thing is that the rights of the employee and the legislation are not violated.

The main reasons for the termination of the contract

All the reasons for dismissal listed in Article 81 are exhaustive within the meaning of the law, therefore they are not subject to additional interpretation. The most common of them are absenteeism, drunkenness in the workplace and other reasons for the dismissal of an employee for a single gross violation of labor duties by the employee.

Absenteeism

An employee will be credited with absenteeism if he was not at the workplace during the working day. In the old edition labor legislation there was another formulation of this act. It meant the absence of an employee for 4 hours or more in a row during a whole working day. This was inaccurate, since not all employees have a working day of up to four hours. So, for example, students who combine work and study, and are between the ages of fourteen and sixteen, have the right to work only two and a half hours a day. Therefore in new edition absence of 4 consecutive hours and absence of 4 hours during the working day are considered grounds for dismissal. Thus, absenteeism can be counted:

• Absence on site for 4 hours or more without good reasoneven if the employee is on the premises of the organization;
• Leaving the workplace without warning the directorate about dismissal and failure to comply with the two-week warning period;
• Leaving without warning on vacation or time off.

Regarding the last point, we can give an example from law practice. Citizen N, turned to his superiors with an application for time off, in order to undergo a technical examination of the car. Having given prior consent, the supervisor noted that this issue was not within his competence and referred N to the head of the service, where employee N was denied the request in the presence of witnesses. However, H did not show up for work the next day. Therefore, a memorandum and act were drawn up about absenteeism, and an explanatory note was taken from N, CEO made the decision to dismiss the citizen under "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation.

Since N did not agree with the wording, and went to court with demands for compensation and reinstatement at work. His lawsuit was not accepted, explaining this by the reason that he indicated is not so important that the employer was obliged to provide him with time off.

From this we can conclude that there are reasons why the management cannot refuse to provide an employee with time off and leave. An employee, for example, cannot be denied this if he is a donor, since this paragraph is stipulated by Art. 86 and the law on blood donation (a citizen has the right to day off on the day after donating blood or blood components). Or, for example, leave must be provided to participants in the Second World War (35 days without pay). However, the employer can choose the time that is convenient for himself.

Intoxication

If an employee appears at the workplace in a state of intoxication, he must be suspended from work. Moreover, according to the law, it does not matter whether the suspension was made or not. The concept of "intoxication" is interpreted quite broadly, meaning not only alcoholic, but also narcotic or any toxic intoxication. However, in relation to the employee, this condition must be confirmed. health workerswho have the right to do so, and in a special room, or on the road, but with special equipment. If an incident occurs countrysidewhere there are no specialized institutions, an examination can be carried out at a paramedic point.

It should be noted that the mere fact of drinking alcohol, alcoholic intoxication does not mean. Dismissal occurs only on the basis of a state of intoxication. To be drunk, in the medical sense, is possible only in a state that occurs at a certain concentration of alcohol in the blood (0.5 ppm). This is equivalent to 0.5 liters of beer or 75 g of vodka in the blood of a person weighing 80 kg. An employee cannot be fired if this norm is not exceeded.

The employer cannot force an employee to undergo an examination, but can only offer him to do it. Moreover, the employee's refusal can be interpreted as confirmation of guilt. Therefore, the employer often, and not always legally, forces the employee to undergo certification. The most popular method is to call the police or an ambulance. However, the fact of intoxication, even proven, is not a reason to call the Ministry of Internal Affairs, if this condition does not pose a danger to others or to the person himself.

An ambulance, which is also often called in this case, is not the place of examination. Therefore, the actions of the doctor who agreed to the examination may be recognized by the court as unlawful. All this suggests that it is quite problematic to fire workers who abuse alcohol in the workplace, because it is difficult to collect all required documents on dismissal for a single gross violation of discipline in this case.

Divulging secrets

The law protects about 20 state secrets under Art. 283 of the Criminal Code of the Russian Federation. If we are talking about state secrets, then such dismissal most often turns out to be associated with imprisonment. In this case, only one question arises - to terminate the contract with the employee before sentencing or after. On the one hand, the verdict may turn out to be acquittal, and the employee will have to be returned to work. On the other hand, if you wait for a verdict, another problem arises, on what basis the employee should be fired.

The law contains Art. 83, which justified the dismissal in connection with the conviction. And theoretically it can be used. But there is Art. 81, where the reason is directly indicated - the disclosure of secrets. Therefore, the employer has the right to use a more convenient wording, since the use of Art. 81 is not the employer's obligation, but his right. Dismissal under Art. 84 of the Labor Code of the Russian Federation does not depend on the desire of the management. When it comes to trade secrets, the dismissal cannot be applied to an employee who, in pursuance of the Law on Commercial Secrets, was not familiarized with the list of information that he cannot disclose on receipt.

Theft

Theft, embezzlement, destruction of property or damage to it are administrative offenses. Anything that did not belong to the kidnapper should be considered as someone else's property. To dismiss an employee on this basis, one must be guided either by a verdict or by an order of the authorities that have the right to do so, and the place of theft of property should be only the place of work.

For dismissal for this reason, it is enough for the competent authorities to establish only the fact of theft; it is not required to bring employees to justice. That is, an employee may be dismissed, even if he does not incur for a number of reasons (remorse, compensation for loss, theft of property for a penny amount, cancellation of the order on administrative responsibility and other reasons) responsibility for what was committed (Article 81, clause 6)

In this article, we examined the specificity of termination reflected in the labor code employment contracts, and dismissal of employees for violation of labor obligations that occur, including at the initiative of the management. Therefore, in order to avoid violation of the Labor Code of the Russian Federation, in each specific case, the issue of compliance with the law must be carefully considered.

Dismissal of a head for a one-time gross violation (clause 10 of part 1 of article 81 of the RF LABOR CODE)

O. SABELNIKOV

A one-time gross violation of labor duties is a sufficient reason for the dismissal of a company manager. But what exactly is recognized as a gross violation? How to fix it correctly and carry out the dismissal procedure so as not to violate the law? After all, the dismissal of the head of the company is a serious step that affects the activities of the entire organization. Minimize possible problems in the event of a legal dispute, compliance with the recommendations given in the article will help.

The head of an organization is a person in charge with an important function of managing the affairs of a company. The success of the organization and the well-being of its employees directly depend on it. Therefore, the requirements for professional and business qualities, as well as the behavior of such a person is increased. The Labor Code provides for a separate basis for terminating a contract with a manager in case he fails to cope with his duties. This reason is a one-time gross violation of labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).
Who is covered by this clause?
1. The head of the organization (branch, representative office).
2. Deputy head of the organization (branch, representative office).
What are the signs of a violation for which you can be fired?
1. A single violation is enough.
2. The violation must be rude.
3. This violation must concern the person’s work duties.

It should be noted that clause 6 of part 1 of Art. 81 of the Labor Code contains a similar basis for terminating a contract with any employee. The difference from clause 10 is that clause 6 contains a list of violations that are considered gross. In the case of the head, there is no such list, therefore, a wider range of violations falls under the scope of this paragraph. Therefore, the main practical question that arises when applying paragraph 10 is - what kind of violation can be considered gross? As the Moscow City Court points out in its Appeal ruling of January 22, 2014 in case No. 33-1488 / 14 and other definitions, this is a descriptive and evaluative concept and is the subject of an assessment of the court considering a labor dispute.
First of all, a comment on this topic is given by the Plenum of the Supreme Court of the Russian Federation in paragraph 49 of its Resolution of March 17, 2004 N 2:
"The question of whether the violation was gross is decided by the court, taking into account the specific circumstances of each case ...
As a gross violation ... one should, in particular, regard the failure to fulfill the obligations imposed on these persons by the employment contract, which could lead to harm to the health of employees or to property damage to the organization. "
It seems that there may be such violations that do not cause property damage to the company and, nevertheless, are significant. For example, a violation that entails harm business reputation, may well be regarded as rude.
The Plenary Session also points out that the employer is responsible for proving the fact and the degree of severity of the violation. Separately, it is noted that the heads of other structural divisions or the chief accountant cannot be dismissed on this basis. For them, there is just paragraph 6 of part 1 of Art. 81.
Another question is whether a manager can be fired under clause 6. There are different opinions on this matter and different court decisions... For example, the Moscow City Court in its Ruling of 02.02.2011 in case No. 33-291 indicated that there were no grounds for dismissal under paragraph 10, since absenteeism was committed, and this is the basis for dismissal under paragraph 6. In that At the same time, based on the interpretation of the Labor Code and Resolution of the Plenum of the Supreme Court No. 2, it seems that the most correct would still be the dismissal of managers in all cases under paragraph 10.
Clause 9, part 1 of Art. 81 of the Labor Code provides for another ground for dismissal, bordering on the considered one, is the adoption of an unreasonable decision that caused damage to the property of the organization (violation of safety, misuse and other). This basis can be applied to the same persons as in clause 10, as well as to the chief accountant. How to distinguish border matters here? Interpreting the law together with the Resolution of the Plenum of the Supreme Court No. 2, we can conclude that paragraph 9 applies where property damage was actually caused, and paragraph 10 - if there was a threat of its causing. In addition, clause 9 can be applied in cases where there was no violation of labor obligations. At the same time, the actual harm caused does not exclude the application of paragraph 10. The decision in each case must be made taking into account the specific circumstances.
What should be considered as part of a manager's job responsibilities? First of all, this is an employment contract and job description. But due to the position and increased responsibility of this person, there are other sources of his duties. These are the constituent documents of the organization, the regulation on the branch, representative office, and other local acts, as well as federal laws other regulations... For example, the manager is obliged to ensure compliance with the Labor Code in relation to the employees of the organization, even if this is not spelled out in his employment contract.
The following should be noted here. In case of violation of labor obligations, which simultaneously contains the composition administrative offense, it may not be profitable for the employee to challenge the dismissal. After all, the refusal to satisfy the claim may ultimately lead to the imposition of an administrative penalty on the employee. The situation is similar with criminal offenses.
Dismissal is a disciplinary action. In accordance with Part 1 of Art. 192 of the Labor Code penalties are applied for the commission of a disciplinary offense. It is understood as non-performance or improper performance by the employee through his fault of the labor duties assigned to him. Thus, to the listed signs of violation, one more sign common to all violations is added - guilt. Guilt can be expressed in the form of direct intent and negligence.
In addition, when imposing a penalty, the following should be taken into account:
- the severity of the offense;
- the circumstances under which it was committed;
- the employee's previous behavior;
- his attitude to work.

What violations in judicial practice are recognized as falling under paragraph 10 of part 1 of Art. 81 of the Labor Code? Here are some examples.
1. Doing illegal commercial activities using their official powers (Determination of the Moscow Regional Court of 20.05.2010 in case N 33-9730).
The deputy director organized a paid parking lot in the company's garage. He appropriated money from this activity.
The court determined that this activity was related to the performance of the employee's labor duties. In accordance with the job description, he was in charge of economic and security issues, and the head of the garage reported directly to him. The illegal activity was in violation of these obligations. The property of the organization was used illegally, and cash from such use did not come to her disposal. This caused property damage to the organization. The violation was rude, and the dismissal of the deputy director was legal.
2. Illegal withholding of the constituent documents of the company (Determination of the Moscow City Court dated 17.02.2014 N 4g / 7-551 / 14).
The following conclusion of the court is interesting in this case. The plaintiff stated that the retention of the documents could not entail material damage to the society. The court found this argument untenable and stated that the violation itself was gross and sufficient to dismiss.
3. Illegal receipt of funds in connection with the performance of their job duties (Appeal ruling of the Moscow City Court of 18.11.2013 in case No. 11-32416).
In this case, the fact of violation was established by the verdict in the criminal case. The following points are interesting.
The decision to dismiss was made before the entry into force of the verdict. However, the court found that this did not affect the legality of the dismissal. The grounds for dismissal are established by a memorandum; the verdict was subsequently overturned, and the plaintiff was acquitted due to the lack of corpus delicti. The court indicated that this could not be the basis for reinstatement at work. At the time of dismissal, the employer established the fact of a single gross violation.
4. Violation of the procedure for disposing of the company's funds (Appeal ruling of the Moscow City Court dated 09.24.2013 in case No. 11-30406).
This case is remarkable in that the employee was dismissed during a period of temporary disability. By general rulethat applies to all employees, dismissal during this period is unacceptable. However, the employee hid the fact of temporary disability from the employer. In accordance with paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, this should be regarded as an abuse of the right. It is specified that in such cases, the employer should not be held liable for adverse consequences resulting from the employee's unfair actions. The court has the right to refuse to satisfy the claim to the abused employee, which was done in this case.
5. Inappropriate use of funds intended for the payment of bonuses (Appeal ruling of the Moscow City Court dated March 14, 2013 in case No. 11-8064).
In this case, the funds were not appropriated by the manager. However, their use to improve the qualifications of employees and replenish the material and technical base of the institution was illegal. Thus, gross violation can be expressed not only in obtaining personal gain.

When do courts reinstate dismissed leaders?
1. The appeal ruling of the Moscow City Court of 02/12/2014 in case N 33-664 / 14.
In the first instance, it was established that the director of the branch was fired for a breach of duties, which resulted in the termination of the contract with the client of the organization. The dismissal was considered legal.
However, the appeal revealed that in fact the contract with the client had not been terminated. The client insisted on the proper fulfillment by the defendant of the obligations under the contract. Also, upon dismissal, it was not indicated in what the violation of the employee's labor obligations was expressed. The statement that the employee did not notify management of the client's claims was rebutted by the evidence. The dismissal was found to be unreasonable and illegal. The employee was reinstated at work, he was paid wage during the forced absence and compensation for moral damage.
2. The appeal ruling of the Moscow City Court of 20.11.2013 N 11-37434.
The plaintiff was dismissed for systematic failure to meet the deadlines for the tasks set and the failure of the defense strategy. The defendant presented documents confirming that the plaintiff was appointed responsible for preparing the strategy by a certain date. The deadline was postponed due to the unavailability of the strategy. The task was not completed by the deadline due to the employee's temporary incapacity for work. The plaintiff asked to postpone the defense of the strategy to a later date. Based on the above circumstances, the court found that the defendant did not provide evidence of a gross violation of labor duties by the employee.
In addition, the defendant did not demand an explanation from the plaintiff before dismissal in accordance with Art. 193 of the Labor Code of the Russian Federation. The plaintiff's memo with a request to extend the period for preparing the strategy is not an explanation. Thus, the procedural order of dismissal was violated.
The employee was reinstated and awarded the corresponding payments.
3. The appeal ruling of the Moscow Regional Court dated 15.01.2013 in case No. 33-26703.
The plaintiff worked as a deputy director, performed duties in accordance with the job description. After the change of director, the job description was canceled. Despite this, the deputy continued his work, after which he was fired. The employer argued that the employee allegedly was not present at work, while he was only engaged in performing his duties outside the workplace.
The court recognized that this violation could not have resulted in harm to the health of employees or property damage to the organization. In addition, the employee was not familiar with the order to cancel the job description. The dismissal was declared illegal.
4. Determination of the St. Petersburg City Court N 33-439.
The head of the branch of the enterprise was fired for carrying out business activities on the territory of the organization. Upon dismissal, it was stated that the activity is illegal, poses a threat to the safety of people and violates financial discipline. However, the fact of violation of the employee's duties was not confirmed in court.
The employer's mistake was that the plaintiff was not obliged to monitor the performance of certain contracts with counterparties. The plaintiff did not know about the activities that the employer took for her illegal entrepreneurial activities. Her wrongdoing was to allow such events. However, the disciplinary measures taken were not commensurate with the gravity of the offense. The defendant took into account the circumstances of the misconduct, the previous behavior of the plaintiff and her active and conscientious attitude to work. The plaintiff was reinstated at work.
5. Determination of the Supreme Court of the Russian Federation dated 28.05.2010 N 5-B10-34.
Upon termination of the employment contract with the plaintiff, the legal procedure for dismissal was violated. The court concluded that there had been a single gross violation. However, due to the violation of the procedure, the decision to reinstate the plaintiff at work was recognized as legal.

As can be concluded from the examples given judicial practice, the employer should pay attention to many factors.
1. When concluding contracts with managers and deputies, it is necessary to properly prescribe their labor duties. Including those obligations that follow from laws and local acts are subject to inclusion in the contract. If you list all the duties of an employee in one document, then later there will be less grounds for disputes.
2. Leaders should be dismissed only when they commit really gross violations. Roughness, as mentioned earlier, is evidenced by the possibility of harm. Sometimes the violation itself can be considered gross. However, to be on the safe side, it is better to think over the argumentation in this direction in advance. It is important to take into account the nature of the violation, the degree of guilt, the employee's behavior, his attitude to work and other circumstances.
3. The question of the severity of the violation is in any case decided by the employer. Therefore, a list of violations that will be considered gross can be included in the employment contract. This list should not be kept closed.
4. It is important to take care that the fact of violation and all circumstances significant for the case can be proved.
First of all, written documents are presented in court as evidence of the violation. These can be acts, memos, letters, plans, protocols, contracts and other documents, both official and unofficial.
Evidence is also external acts adopted in relation to the organization or the head: decisions of courts, decisions of administrative bodies, acts of inspections and the like.
In addition, the violation can be proven through testimony.
If possible, it is best to record the violation in writing, and also involve as many reliable witnesses as possible. When drawing up documents, you should pay attention to the correctness of the details and rules of execution (indicate the correct date, time, ensure the signatures of the right persons, and so on).
5. The procedure for dismissal must comply with the law.
It is worth insuring yourself and checking if the employee is in a position of temporary incapacity for work.
It is imperative to demand from the employee a written explanation of the violation in accordance with Art. 193 of the Labor Code of the Russian Federation. If the employee is ready to provide an explanation, it is possible not to make such a request in writing. Otherwise, it is better to draw up a written request and hand it over to the employee against signature. The employee is given two days to give an explanation. If an explanation has not been received, an act about it is drawn up.
When drawing up a dismissal order, the reason for dismissal should be correctly indicated - the commission of a single gross violation of labor duties. It is necessary to indicate which specific obligations were violated, and refer to supporting documents.
It is recommended to draw up two separate orders. One is about overlay disciplinary action with an indication of all the details of the misconduct. The second - on the termination of the employment contract with reference to paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation and the first order. The employee should be familiarized with both orders against signature. When the head of the organization is dismissed, the first order is the decision general meeting members or board of directors.
Dismissal of a manager is a serious step that directly affects the functioning of the company. And if it really is necessary to do this, then the implementation of all the listed recommendations will minimize the problems that may arise. In order for the court to take the side of the employer, it is necessary to take measures and provide conditions for this.

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