The dismissal of an employee is labor. For which an employee can be dismissed according to the law - all the reasons and design features. Unlawful dismissal by an employer

Aida Ibragimova, head of the personnel department of KSK group

08 February 2016

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them using a case study from practice.

Almost in all organizations there are employees who do not do their job well: they are often late, do not meet the deadlines for completing tasks, violate established rules. Managers don't know how to deal with such employees. When the verbal remarks of the boss do not work, it is necessary to apply disciplinary sanctions: a remark, a reprimand, an extreme measure - dismissal.

In Art. 81 of the Labor Code of the Russian Federation indicates the reasons why the contract may be terminated on the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of their job responsibilities (Clause 5 of Article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be fired for a systematic violation of labor duties, what conditions are important to take into account and how to correctly draw up the imposition disciplinary actionso that the court recognizes the dismissal as lawful and does not give an opportunity to reinstate the employee in his post

Offenses for which you can dismiss under the article

Dismissal under the article is possible if the employee commits actions that are prohibited by the employment contract, job description, local regulation, by order of the employer, norms labor legislation and other regulatory legal actscontaining provisions labor law, or, conversely, if the employee does not perform the actions specified in these documents.

Clause 35 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004, No. 2 "On the application by the courts Russian Federation Of the Labor Code of the Russian Federation "such violations include:

Absence of an employee without good reason at work or workplace;
- Refusal of the employee without valid reasons from the performance of labor duties in connection with a change in the established order of labor standards, since by virtue of the labor contract, the employee is obliged to perform the labor function specified in the labor contract, to comply with the internal rules of the organization work schedule;
- Refusal or evasion without good reason from a medical examination of workers of certain professions, as well as the refusal of an employee to undergo work time special training and passing exams on labor protection, safety and operating rules, if this is a prerequisite for admission to work.

This list is given in the resolution of the Plenum of the RF Armed Forces and, of course, is not exhaustive. Such violations can include any non-performance or improper performance by an employee without a valid reason of his work duties. Upon dismissal for repeated failure to perform labor duties, the employer must have a clear position and irrefutable evidence of the employee's guilt. The obligation to provide evidence of the legality and validity of the application of disciplinary sanctions to the employee, as well as evidence of compliance with the procedure for its application, is imposed on the employer (Appeal ruling of the Smolensk Regional Court of February 24, 2015 in case No. 33-631 / 2015).

Conditions required for dismissal

Before the application of a disciplinary penalty in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. Requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee was familiarized with the documents establishing requirements and prohibitions against signature. As part of the activities of KSK groups, we provide consulting services, and often customers receive complaints that their employees do not comply job duties... We always draw the attention of our clients to the fact that it is necessary to bring all personnel documentation in accordance with the norms of labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The presence of an outstanding disciplinary sanction of the employee

A disciplinary sanction or reprimand must not be withdrawn ahead of schedule and its validity period must not expire (one year from the date of the order on the application of the penalty). The disciplinary sanction can be formalized as a remark or as a reprimand. One outstanding disciplinary sanction is enough for dismissal, for the second one can already be discharged. If an employee has several disciplinary sanctions, then this will strengthen the employer's position, since it indicates that the employee was given a chance to improve. In this case, dismissal is an extreme measure, because the previous disciplinary sanctions on the employee did not work.

3. The severity of the offense and the circumstances of its commission

In accordance with paragraph 53 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004, No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation", in the event of a dispute, the employer will need to provide evidence that:

- the employee has committed a disciplinary offense;

- when imposing a penalty, the severity of this 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 were taken into account.

This means that the offense must be proportionate to the punishment. You cannot apply a disciplinary sanction in the form of dismissal for an employee's delay by 15 minutes, if there were no complaints about the employee's work earlier. It is also forbidden to apply multiple disciplinary sanctions for the same act. For example, one cannot reprimand an employee for one delay and fire him for the same. It will be unlawful for the employer to behave if he “accumulates” the employee’s lateness and in one day announces a reprimand and dismiss the employee.

4. Terms of application of disciplinary sanction

A disciplinary sanction can be applied within one month from the date of discovery of the offense and six months from the date of its commission (based on the results of an audit of financial and economic activities or an audit - no later than two years from the date of the commission of a disciplinary offense). The day of discovery of the misconduct is the day when it became known about the commission of the misdemeanor.

Please note that the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted for the application of a disciplinary sanction.

Procedure for imposing a disciplinary sanction

Dismissal for repeated failure to perform labor duties presupposes strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on failure to perform labor duties

The employee's misconduct must be recorded by the immediate supervisor in a memo addressed to general director... The memo confirms the fact of violation of labor duties by the employee and is the basis for the application of disciplinary action.

2. Act on the commission of a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded by an act. The act is drawn up by three employees, including the immediate manager and a specialist in the personnel department. The employee must be familiarized with the act against signature.

3. Notice of Submission of Written Explanations

An explanation must be requested from an employee before a disciplinary action is taken. In order to confirm in the event of a dispute that an explanation was requested, such a notice must be drawn up in writing and handed to the employee against signature. In case of refusal to receive a notification, it must be read out to the employee and an act of refusal to receive a notification must be drawn up.

If after two working days from the date of requesting an explanation from the employee, he did not provide it or refused, then an act is drawn up. If there is an act and a document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation of the employee.

4. Taking into account the opinion of the representative body

Dismissal of workers who are members of the trade union, under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is made taking into account the motivated opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of an employment contract with an employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation should be guided by the general rules for dismissal. It is necessary to draw up the following documents: an order to terminate an employment contract, a note-calculation, work book, personal employee card.

Case study

A client contacted us for a personnel audit. As part of our audit service, we also advise clients on all issues related to the application of labor legislation. One of the company's employees was a single mother and “actively” used it. When checking the employee's personal file, we found a large number of memorandums about her failure to perform her work duties. Previously, the client tried to lay off the employee, but in response she filed a complaint with labor inspection and went to court (although labor contract has not been terminated). The position of the employer was a losing one, since it is legally impossible to lay off a single mother, and the procedure itself was not executed correctly.

We advised the client to issue an order to suspend the employee layoff procedure, as well as notify that her position will be retained. Despite this, the question of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the employer's comments, she used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace ahead of schedule, unauthorized without warning went on vacation.

The personnel audit showed that the client's company kept personnel records with serious violations and many obligatory documents were absent, as a result of which it was impossible to present a claim to the employee.

We have drawn up a plan for the client for the restoration of personnel documents and instructions for behavior in relation to the problem employee:

Draw up a detailed job description for a sales manager, which should describe all responsibilities and indicate to whom the manager reports;
- install in job descriptionthat the sales manager is obliged to fulfill the instructions of the immediate supervisor and the general director;
- establish monthly sales plans to be followed by all sales managers.

Only upon approval and familiarization of the employee with all the specified personnel documents disciplinary action is possible. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of an employee.

As a result, two disciplinary sanctions were drawn up on the employee, when she committed the third offense - the dismissal procedure followed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. The employee asked to give the opportunity to quit by on their own, because she did not want such an entry in the work book. The employer met her halfway, and the employment contract was terminated.

Such situations are not uncommon at an enterprise when the manager is forced to fire an employee under the article. There is no such thing legally. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for the removal of an employee from office can have an extremely negative effect on his future organization. Consider further some labor clauses on dismissal.

Reduction or liquidation

This is one of the reasons why a dismissal can be made. According to article 81, paragraph 4, only the chief accountant, the head and his deputy can be dismissed in the event of a change in the owner of the company. This provision does not apply to other (ordinary) specialists of the enterprise. With the reduction of staff, some categories of professionals cannot be dismissed from office by law. Such "untouchable" employees are those who have a long and uninterrupted experience in this company or are the only breadwinners in the family.

Inconsistency

As the saying goes Labor Code, dismissal under Article 81, paragraph 3 may be carried out due to incompetence with insufficient qualifications of a specialist, confirmed by the results of certification. To identify the fact of non-compliance, a special commission is organized. It usually includes:

Director of the enterprise.
Human Resources Representative.
Subject's immediate superior.

The certification is confirmed by the corresponding order. The subject receives a task that does not go beyond his job description and corresponding to his qualifications and specialization. If the task, in the opinion of a specialist, was not drawn up in accordance with his duties, then the results of the certification can be challenged. For this, a complaint is written to the labor inspectorate within the time period established by law and a claim is filed with the judicial authority. Based on the results of the certification, a final report is drawn up.

Transfer to another position

Dismissal under Article 81 is allowed if it is impossible to send a specialist with his written consent to perform other professional tasks at the enterprise. This can be a free, corresponding to the qualifications of an employee, and a lower or less paid position, which can be performed by him taking into account his health. Tenant in in this case is obliged to offer all vacancies that meet the above requirements and are available in a specific location. The manager is obliged to propose activities that need to be performed in another territory if this is expressly provided for in an employment, collective or other contract or agreement. The specialist can refuse the provided options. In this case, the manager can fire him.

Non-performance of duties

Dismissal under Article 81, paragraph 5 has a number of features. In particular, the manager may dismiss an employee if the former repeatedly fails to fulfill his duties, without good reason, and at the same time a disciplinary sanction is imposed on him. The latter is allowed in the form:

reprimand;
remarks;
dismissal from office.

If there are valid reasons for non-performance of duties, the employee must state them in writing.

Absenteeism and lateness

The specialist may be absent on site for different reasons... If they are respectful, then they must be confirmed by appropriate papers. For example, if an employee is sick, he provides sick leave... If the reasons for the absence are disrespectful, then this is called truancy. All the circumstances for which the specialist was not at work shall be stated in writing. The decision on recognizing or not recognizing them as respectful is made by the head. If it becomes necessary to be absent from the enterprise, you must first write a corresponding application. It is drawn up in 2 copies, on which the director puts a note "I do not mind". The situation with delays is somewhat more complicated. As a single entry gross violation the absence of an employee at the workplace for more than 4 consecutive hours during the shift (day) will be considered. Thus, if a specialist is late for an hour, then he cannot be dismissed for this reason. But in the case of repeated such violations, a disciplinary sanction may be imposed with subsequent dismissal.

Waste and embezzlement

These reasons are considered one of the most indisputable of all the circumstances for which dismissal can be carried out under the Labor Code. When committing theft, including petty property of someone else (in this case, belonging to an enterprise or other employees), its waste, damage or destruction, established by a resolution of the body or officialsauthorized to consider cases on administrative offenses, or by a court verdict that came into effect, the specialist is dismissed from his position.

As can be seen from the text of the norm, an appropriate act is required, which, in fact, is the result of an investigation. However, often in practice, management is lenient and offers voluntary dismissal. The article in this case will be different. Theft or other serious violation can damage not only the reputation of the employee himself (even if he is innocent), but also the enterprise itself. The consequences in such situations are almost always dismissal. Under what article to dismiss an employee from office - the choice of a manager.

Drunkenness

The legislation notes several significant nuances to the dismissal procedure for this reason. In this case, a number of conditions must be met. First of all, the fact of being intoxicated directly at the workplace should be recorded, and not just the use of alcohol. Also, the reason will act as a significant circumstance only if the employee appeared at the enterprise in this form during the shift. Thirdly, intoxication is considered not only a condition after taking alcohol, but also any other condition that occurs when using narcotic or other toxic substances.

Loss of trust

For this reason, only financially responsible employees can be dismissed. These, in particular, include those who have access to money or other values \u200b\u200bof the enterprise, carry out their reception, distribution, storage, etc. Such financially responsible persons may be:

Cashier.
Warehouse Manager.
Accountant.
Economist.
Seller.
Forwarder and so on.

Loss of trust may be the result of willful misconduct or negligence, neglect of one's duties. As with truancy, the employee's guilt must be proven. A memorandum, an act of audit or inventory can confirm the employee's illegal actions.

Dismissal of their own free will: article of the TC

This is the most common way to terminate a contract. Every day, many employees, of their own free will or on the recommendation of their superiors, vacate their positions in this way. However, since legal point view it will always be a dismissal of their own accord. Article of TC No. 80 regulates this procedure. It should be noted that it does not present such difficulties as in other cases. So, if an employee commits any disciplinary offenses, his guilt must be proven.

If the dismissal is made of his own free will, the article of the Labor Code of the Russian Federation requires only to observe the procedure according to which the specialist must notify the employer 2 weeks before the expected date of leaving about his intention. In general, the procedure for obtaining dismissal from office in such cases is not difficult. As in other situations, a corresponding entry is made in the labor document: "Dismissal under Article 80". To start this procedure, the specialist must write a statement. The employee has the right not to explain the reasons for his decision. The article of the Labor Code "Dismissal on one's own" does not bear any negative consequences. However, you should be prepared for the fact that when applying for a new job, the head of another company or a representative of the personnel department will be interested in the reasons for this decision.

Design features

The procedure for dismissal under the article should be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be followed. There are different stages for each case. However, in any situation, failure to comply with any of it can lead to negative consequences. In particular, the employee can appeal against the misconduct of the employer.

Attestation of fact

If there is any violation, this step is considered mandatory. As mentioned above, for dismissal due to drunkenness, it is necessary to witness drunkenness directly during working hours, and not just the direct fact of drinking. Theft is proven in 3 stages. In particular, the legislation requires documentary evidence of the misconduct, as well as the order or sentence. Only then can the dismissal be made.

Warning

This stage also has its own characteristics, which depend on the reason for which the employee leaves. For example, in the event of the liquidation of a company with the subsequent dissolution of the state, in case of any other change in the routine of activities at the enterprise and the reduction in the number of employees, the employer must notify the specialists 2 months before the date on which these activities will be held. The same conditions are observed when an unqualified employee is dismissed from office or when his certification results are unsatisfactory. In the event that an employee commits a violation (failure to fulfill his duties, absenteeism, non-compliance with the routine of the enterprise, etc.), the employer must take a written explanation from him. After that, the supervisor has a month to apply disciplinary action to the employee if the reasons are considered disrespectful. Only one penalty can be applied for each violation. If, for example, a remark was made for absenteeism, then the employee cannot be fired for the same offense.

Familiarization with a specialist

This stage consists in notifying the employee and presenting him with the appropriate order. The latter indicates the reason why he is dismissed from office, the basis and the date. The legislation requires a mandatory signature of a specialist on this document. If you refuse to certify the order, an act is drawn up in the presence of witnesses.

Explanatory

The need for this paper has already been mentioned above. The employer must demand from the employee a written explanation of his behavior. At the same time, the legislation does not oblige the employee to write this paper. He has the right to refuse the employer. Nevertheless, the absence of an explanatory sentence does not relieve him of disciplinary action. It will be rendered in any case 2 days after the above requirement has been submitted.

Order

Legislation requires the issuance of two such acts. The first order must confirm the imposition of a penalty in the form of dismissal, and the second acts as a basis for terminating the employment contract. In most cases, a second edition is sufficient. Everything must be attached to this order regulations... These include, in particular:

Details of acts and reports.
Explanatory (if any).
Other papers that confirm the existence of a valid reason for dismissing an employee from his position.

Dismissal of one's own free will (Article 80) provides for the application of a specialist as a mandatory application. In this case, you do not need to write an explanatory note, you should only notify the employer of your intention in time.

Personal documents

The employer is obliged to issue the employee his work book on the last day of the employee's stay at his enterprise. There should be a corresponding mark in it. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the decision of the manager. To do this, he needs to contact the labor inspectorate, the court.

Compensation and payments

They are relied on depending on what the article of dismissal is worth. For childcare, in the event of staff reduction, liquidation of the company, on the personal initiative of the employee, the specialist is entitled to certain payments. In particular, he should be paid a salary for the time worked in the month of dismissal. The last day of work acts as the date of dismissal. The employee is entitled to a payment for unused vacation, benefits.

Consequences for the employee

They can be different and depend on the article that is indicated in the work book. This can become the reasons for the emergence of all sorts of problems during the subsequent device at another enterprise. The reasons for dismissal are conventionally divided into three categories. Each of them provides for certain consequences. Thus, the articles are distinguished:

Related to the reorganization of the company. If the enterprise complies with the norms of the law, the employee should be assisted in finding a new place. In this case, the consequences for him are only positive.
Not listed in the work book. For example, there may be a mark that an employee vacated his position on his own initiative, but in fact his serious misconduct simply did not receive publicity in order to avoid a scandal. In this case, no particular negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
Indicated in labor. They can significantly damage your reputation. But in some cases it is more expedient to be honest.

Appeal against the decision of the head

When an employee is dismissed without sufficient or legal reason for this, he has every right to go to court. The authorized authority, in turn, at the request of the employee, can make a decision to recover compensation for moral damage from the employer. If the actions of the manager are recognized as unlawful, the employee has the right to ask for a change in the wording of the reason for "dismissal on his own." In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he will be given a duplicate. In this case, all the records that were present in it are transferred to the book, with the exception of the one that was recognized as illegal. The procedure for appealing against a decision of the head is established in Art. 394. In addition to the court, an employee can apply to the labor inspectorate and initiate an internal audit at the enterprise for compliance with the law. As practice shows, such litigation does not happen so often. Usually, employees are fired without conflict or noise.

Every able-bodied person strives to find a decent job and earnings. To do this, he can change his place of work countless times. And this process is associated with dismissal.

But not always leaving previous place work is voluntary. Some employers may fire an employee they dislike for no reason and illegally.

Unfortunately on modern market illegal dismissal of labor has become commonplace. If you have been fired and you do not agree with the unfair decision of the management, it is better to file a claim with the judicial authorities.

The procedure for dismissal of your own free will

To terminate an employment contract of his own free will, an employee must submit a written statement to management 14 days prior to the date of dismissal.

At the same time, it is necessary to clarify in the application that you are leaving of your own free will. The letter of resignation is valid only after it is received by the administration of the organization, and not from the moment it is written by the quitting employee.

The procedure for dismissal of one's own free will has many nuances and subtleties. If the employee found new job, and he cannot work out for 2 weeks, then there are two ways of development of events.

First, an employment contract can be terminated by mutual agreement of the parties.
Secondly, if consent cannot be found, the quitting employee can go on sick leave.

An employee can receive a work book on the day of dismissal.

If the work book is not issued for any reason, then this is a reason for the employee to go to court to protect his rights and interests.

If you are caught in a similar situation, then you can contact our legal advice... Our competent lawyers will answer all your questions and help you solve the problem.

Unlawful dismissal by an employer

If you were fired illegally, and you want to bring your employer to administrative responsibility, then you need recommendations and advice from experts who know all the intricacies of this case.

You can collect documents and submit them with the claim in person, but without knowing the legal basis, it will be quite difficult to win the process. In this case, the employer can accuse the employee of libel.

Competent specialists will help you draw up a statement of claim correctly and competently. At the same time, they will help to collect the evidence base and obtain a certificate of violation.

Often, unscrupulous employers resort to dismissal after he does not pass certification. At the same time, the certification is planned in advance so that the employee will not be able to pass it.

After that, the employer can safely terminate the employment contract with the unwanted employee, citing the discrepancy in the level of qualifications. Illegal dismissal the employer can appeal in court.

Dismissal under article

The employer often resorts to the practice of dismissing an unwanted employee under Article 192 of the Labor Code of the Russian Federation. The article is entitled "Disciplinary Penalties". According to this wording, a person can be fired if he is late for the workplace, in his "piggy bank" there is a remark or a reprimand.

Dismissal under the article is possible only if the employee does not fulfill his job duties, which entailed a disciplinary penalty.

The rest of the reasons that the employer can indicate are illegal.

In this case, the following must be attached:

late acts
explanatory on the fact of delay
an act of refusal if the employee does not want to write an explanation
the reprimand must be signed by the punished employee

The procedure is repeated for every delay. If there is not at least one document that confirms the delay, then the dismissal under the article is considered illegal.

Reorganization of enterprises is permitted in Russia. By law, this procedure has specific legal ...

In Art. 81 of the Labor Code of the Russian Federation indicates the reasons why the contract may be terminated on the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of their labor duties (clause 5 of article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be dismissed for a systematic violation of labor duties, what conditions are important to take into account and how to correctly formalize the imposition of a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated.

Offenses for which you can dismiss under the article

Dismissal under the article is possible if the employee commits actions that are prohibited by the employment contract, job description, local regulatory act, employer's order, labor law and other regulatory legal acts containing the provisions of labor law, or, conversely, if the employee does not perform those stipulated by these documents action.

Clause 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" refers to such violations:

Absence of an employee at work or workplace without good reason;
The employee's refusal to perform his job duties without good reason in connection with a change in the established procedure in labor standards, since by virtue of the labor contract, the employee is obliged to perform the labor function specified in the labor contract, to comply with the internal labor regulations in force in the organization;
Refusal or evasion without good reason from medical examination of workers of certain professions, as well as refusal of the employee to undergo special training during working hours and pass exams in labor protection, safety and operating rules, if this is a prerequisite for admission to work.

Conditions required for dismissal

1. Requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee was familiarized with the documents establishing requirements and prohibitions against signature. As part of the activities of KSK groups, we provide consulting services, and often from clients there are complaints that their employees do not fulfill their official duties. We always draw the attention of our clients to the fact that it is necessary to bring all personnel documentation in accordance with the norms of labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The presence of an outstanding disciplinary sanction of an employee

3. The severity of the offense and the circumstances of its commission

- the employee has committed a disciplinary offense;

4. Terms of application of disciplinary sanction

Procedure for imposing a disciplinary sanction

Dismissal for repeated failure to perform labor duties presupposes strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on failure to perform labor duties

The employee's misconduct must be recorded by the immediate supervisor in a memo addressed to the general director. The memo confirms the fact of violation of labor duties by the employee and is the basis for the application of disciplinary action.

2. Act on the commission of a disciplinary offense

3. Notice of Submission of Written Explanations

4. Taking into account the opinion of the representative body

5. Registration of termination of the employment contract

Case study

A client contacted us for a personnel audit. As part of our audit service, we also advise clients on all issues related to the application of labor legislation. One of the company's employees was a single mother and “actively” used it. When checking the employee's personal file, we found a large number of memorandums about her failure to perform her work duties. Previously, the client tried to lay off the employee, but in response she filed a complaint with the labor inspectorate and went to court (although the employment contract was not terminated). The position of the employer was a losing one, since it is legally impossible to lay off a single mother, and the procedure itself was not executed correctly.

We advised the client to issue an order to suspend the employee layoff procedure, as well as notify that her position will be retained. Despite this, the question of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the employer's comments, she used the argument that she was a single mother. The woman held the position of a sales manager, systematically left the workplace ahead of schedule, and went on vacation without warning.

The personnel audit showed that the client's company kept personnel records with serious violations and many mandatory documents were missing, as a result of which it was impossible to present a claim to the employee.

We have drawn up a plan for the client for the restoration of personnel documents and instructions for behavior in relation to the problem employee:

draw up a detailed job description for a sales manager, which should describe all responsibilities and indicate to whom the manager reports;
establish in the job description that the sales manager is obliged to fulfill the instructions of the immediate supervisor and the general director;
establish monthly sales plans to be followed by all sales managers.

Only with the approval and familiarization of the employee with all the specified personnel documents, it is possible to apply disciplinary sanctions. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of an employee.

As a result, two disciplinary sanctions were drawn up against the employee, when she committed the third offense - the dismissal procedure followed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. The employee asked to be given the opportunity to resign of her own free will, since she did not want such an entry in the work book. The employer met her halfway, and the employment contract was terminated.

Affiliate material

The general procedure for formalizing the termination of an employment contract is regulated. This article contains an algorithm of actions that must be followed.

Termination of an employment contract is formalized by an order (decree) of the employer. Usually used uniform formwhich is approved.

The employee must be familiarized with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

By general rules the day of termination of the employment contract is always the last day of the employee's work, except for cases when the employee did not actually work, but the place of work remained for him.

On the day of termination of the employment contract, the employer must:

issue a work book to the employee (if the employee is not at work on the day of dismissal, then a notification is sent to him about the need to pick up the work book or agree to send it by mail);
make a calculation with him in accordance with;
upon written application of the employee, issue certified copies of documents related to the work.

An entry in the work book about the basis and reason for the termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.

There has long been a controversy among HR specialists as to which wording to use: “employee fired”, “employment contract terminated” or “employment contract terminated”? The Labor Code does not give a definite answer to this question, therefore, employers often choose the wording at their discretion.

Grounds for dismissing an employee

1. Dismissal during the probationary period

The establishment of a trial period for employment is regulated by Art. 70 TC. It contains a list of employees for whom a probationary period is not established:

persons elected through a competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of 18;
persons who have received secondary vocational education or higher education by state accredited educational programs and for the first time applying for work in the received specialty within one year from the date of receipt vocational education the appropriate level;
persons elected to an elective position for a paid job;
persons invited to work by transfer from another employer as agreed between employers;
persons who conclude an employment contract for up to two months;
other persons in the cases provided for by the Labor Code, other federal laws, collective agreement.

The trial period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other isolated structural units organizations - six months, unless otherwise provided by federal law.

During the probationary period, personnel officers must record any deviations in the work of a new employee with the help of memoranda, acts. When the trial period ends and the employer evaluates the newcomer's results as unsatisfactory, he must document the validity of his decision.

The employer can terminate the employment contract before the expiration of the trial period if the result is unsatisfactory, but he will need to notify the employee about this in writing (in the format of a notification) no later than three days, indicating the reasons that served as the basis for such a decision. At the same time, one must be prepared for the fact that the employee has the right to appeal against this decision in court.

If the employee refuses to sign the notification, an appropriate act is drawn up, which records the fact that the employee has been familiarized with the notification and the refusal to sign it. On the basis of the notification, order T-8 is issued to terminate the employment contract. If the employee refuses to sign the order, then at the bottom of the order the personnel officer writes by hand that the employee was familiarized with the order, but refused to sign, or a corresponding act is drawn up. In any case, it is important to record the fact that the employee is familiar with the order.

Terminate an employment contract of your own free will for probationary period maybe an employee. To do this, he needs to submit an application, and he should not indicate the reason for dismissal. The notice period in this case, according to Art. 71 TC, will be three calendar days... The dismissal itself is carried out on the basis of (termination of the employment contract at the initiative of the employee).

2. Dismissal of your own free will

Which article of the TC to focus on:.

The employee has the right to terminate the employment contract of his own free will, but he must notify the employer about this in writing no later than two weeks, unless another period is established by the Labor Code or other federal law. Specified period starts the day after the employer receives the employee's letter of resignation. By agreement of the parties, this period may be reduced.

In cases where the dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains the grounds when such an option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. The practice of labor relations shows that there are much more reasons for reducing the notice period. For example, a disease that prevents the continuation of this work, if there is an appropriate medical report; moving to another area ().

The list of valid reasons-grounds for dismissal on the day of filing an application can be fixed in the internal labor regulations of the organization or in a collective agreement.

Before the expiry of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not made, unless another employee is invited in his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be denied to conclude an employment contract. For example, in Art. 64 of the Labor Code states that it is forbidden to refuse to conclude an employment contract for employees invited in writing to work as a transfer from another employer.

Upon expiration of the term of the notice of dismissal, the employee has the right to stop working. On the last day of work, the employer must:

issue a work book to the employee;
issue other documents related to work, upon written application of the employee;
make a calculation with him.

How to arrange documents?

When an employee has the right to reduce the notice period, he writes the date of dismissal, which is mandatory for the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not eligible for a benefit, but asks to fire him earlier. For example, he writes a statement on May 15, and asks to fire him on May 19. The employer in this case can act under Art. 80 TC. If he agrees to dismiss earlier, then he accepts the application and issues an order. If he does not agree, he draws up a notice for the employee in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires two weeks' notice and asks to write a new application.

On the basis of the order, an entry is made in the work book (this is done on the last day before the issuance of the book, so that the employee immediately signs in the book for registering the movement of work books).

3. Dismissal by agreement of the parties

Which article of the TC to focus on:.

Grounds for dismissal "by agreement of the parties" entered the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." No matter how perceived such a basis for dismissal, it is necessary to proceed primarily from the fact that the very word "agreement" testifies to a peaceful basis for termination of labor relations.

Despite the fact that the agreement is not provided for by the Labor Code, this is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to the expiration of the employment contract

Which article of the TC to focus on:.

The grounds on which a fixed-term employment contract is concluded are spelled out in Art. Most often - for the duration of the duties of the absent employee, who retains the place of work.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a specific date, which is prescribed in the contract itself. Three days before this date, the employer is obliged to notify the employee of the expiration of the term by means of a notice.

Sometimes the expiration date of the employment contract cannot be set in advance, in which case the contract does not indicate the expiration date, but the condition. In this case, it is not necessary to notify about the termination of the employment contract, since the very fact of the main employee's employment means termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code spelled out how to issue a disciplinary penalty. The algorithm of the employer's actions in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, in which the fact of the violation is recorded, all the circumstances in which it was discovered, the date, and the witnesses. Then a written explanation is required from the employee (the deadline for submitting the document is two working days). The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. In the presence or absence of an explanation, the employer makes a decision based on his assessment of the employee's actions.

The timing of the application of the penalty must be taken into account - no later than one month from the day the offense was discovered, not counting the time of the employee's illness, his stay on vacation, and the time required to take into account the opinion of the representative body of employees. The disciplinary sanction cannot be applied later than six months from the date of the misdemeanor.

A memorandum on the commission of a disciplinary offense is sent to the director (a person who can make decisions on this issue). And the employee is given a notice against signature with the requirement to provide a written explanation. If he does not provide it, then an act is drawn up.

If a misconduct has been proven, disciplinary action is applied. In case of “mild” violations, the employee is first reprimanded. At the same time, the order on the application of a disciplinary penalty contains references to all documents that confirm the grounds for the application of a penalty.

7. Dismissal of a long-term absent employee

Legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to treat a person's long absence from work if there is no knowledge of the reasons for this absence. At the same time, he has no right to dismiss an employee before establishing the fact of violation of labor legislation.

Registration of such a situation begins with drawing up an act for each working day stating that a person is absent from work for an unknown reason (the first act indicates the time of absence "from ... to", and in the rest - "during the whole working day").

Employee absence certificates should first be drawn up daily, if long absence - as of the day of delivery of the next time sheet.

Letters are sent to the employee with a request to explain the reasons for the failure to appear (must be sent by registered mail with a list of attachments).

If for more than a year there is no news from the missing employee, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, can through the court recognize a missing employee as missing. According to Art. 42 of the Civil Code of the Russian Federation, at the request of interested persons, a citizen may be recognized by the court as missing if, within a year, there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements for recognizing the missing employee as missing, the employer will be able to terminate the employment contract with this employee under paragraph 6 of Part 1 of Art. 83 of the Labor Code of the Russian Federation.

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The dismissal of an employee is labor. For which an employee can be dismissed according to the law - all the reasons and design features. Unlawful dismissal by an employer

Offenses for which you can dismiss under the article

Conditions required for dismissal

Procedure for imposing a disciplinary sanction

Case study

Reduction or liquidation

Inconsistency

Transfer to another position

Non-performance of duties

Absenteeism and lateness

Waste and embezzlement

Drunkenness

Loss of trust

Dismissal of their own free will: article of the TC

Design features

Attestation of fact

Warning

Familiarization with a specialist

Explanatory

Order

Personal documents

Compensation and payments

Consequences for the employee

Appeal against the decision of the head

The procedure for dismissal of your own free will

Unlawful dismissal by an employer

Dismissal under article

In this case, the following must be attached:

Offenses for which you can dismiss under the article

Conditions required for dismissal

Procedure for imposing a disciplinary sanction

Case study

Grounds for dismissing an employee

1. Dismissal during the probationary period

2. Dismissal of your own free will

3. Dismissal by agreement of the parties

4. Dismissal due to the expiration of the employment contract

7. Dismissal of a long-term absent employee

The last

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