In connection, remove from office. Suspension from office of a suspect or accused. Requirements of authorized bodies and employees for suspension


The Labor Code lacks a precise definition of suspension from service. But it can be formulated on the basis of the available judicial practice.

Suspension is a temporary refusal to provide work under a service contract. Keyword - "temporarily". It is this condition that distinguishes suspension from dismissal.

The purpose of the procedure is to prevent possible company risks that may arise during the employee's further activities. The grounds for dismissal are listed in Article 76 of the Labor Code of the Russian Federation. The head of the organization cannot determine the reasons independently and, on their basis, remove employees. All of them are specified in the law and regulations. During the period of suspension of employment, wages may not be paid.

Reasons for the removal of the chief accountant and director

In the TC, there are no reasons for the removal of the chief accountant and the director. Only listed common grounds suspension of cooperation:

  • Appearance in the service in a state of intoxication of various forms: narcotic or alcoholic. It is important to confirm the employee's unacceptable condition. For this, medical reports, testimonies, recordings from video cameras are used. The employer is not obliged to remove the employee. He can also give a reprimand, make an official remark. The capital punishment is dismissal under the relevant article.
  • The employee did not pass certification in his specialty. That is, there is an official confirmation that the employee does not correspond to the position held. Another possible measure under the circumstances is dismissal.
  • Detection of contraindications regarding the position held in the process of medical examination. The grounds for the suspension of employment must be confirmed by a medical certificate. Suspension is performed until the elimination of the found contraindications. The period of suspension of cooperation may be determined by the employer independently. If it is less than 4 months, the employee should be given another position for which there are no contraindications.
  • Suspended the special right required for execution job functions, for a period not exceeding two months. These rights include, for example, a license to drive a vehicle, the right to use weapons.
  • Requirements of officials due to laws and regulations. For example, the judicial authorities and the labor inspection can demand the dismissal of an employee.
  • Quarantine.

IMPORTANT! The period of suspension will be included in the length of service provided that several conditions are met: the employee was subsequently reinstated in office and the suspension of labor relations was due to a medical examination that was not passed through no fault of the employee. The last rule is specified in article 121 of the Labor Code of the Russian Federation.

Peculiarities of Suspension in Connection with Suspension of a Special Right

Removal from office on the basis of suspension of a special right has some peculiarities. Suspension of labor relations is possible only under the following circumstances:

  • The temporary loss of the right entails the impossibility of performing official functions.
  • The employer does not have the opportunity to transfer the employee to another position.

The employer is obliged to offer the employee all vacancies in the area where the organization is located. Occasionally, an employer may offer an employee a position in a different locality, but this must be stipulated in collective or labor agreements.

IMPORTANT! If the period of suspension of the special right is more than two months, the employee may be dismissed on the basis of clause 9 of Art. 83 of the Labor Code of the Russian Federation.

Suspension procedure

Removal from office of the chief accountant or director is carried out according to the following algorithm:

  1. Obtaining an official document on the basis of which the suspension of labor relations is carried out. For example, it might be a requirement official, medical report.
  2. A suspension order is issued.
  3. The issued order is registered in. Its shelf life is 5 years.
  4. The employee must be familiarized with the issued order. After familiarization, the employee puts his signature. The date is also stamped when the order was presented to the employee.
  5. The employee can refuse to familiarize himself with the official documentation. In this case, an act of refusal is drawn up, signed by the originator and two witnesses.
  6. Registration of the act in the corresponding journal.
  7. Drawing up a timesheet.
  1. Issuance of an order on admission to work after the expiry of the period for suspension of cooperation.
  2. Registration of the order in the corresponding journal.
  3. Familiarization of the employee with the order. The employee signs at the end of the document.
  4. If the employee refuses to take the order in hand, it is required to prepare an act of refusal, signed by two witnesses. It is registered in a special journal.

All these points are mandatory. If, for example, an employee is not familiar with the orders and there are no corresponding acts, he has the right to contact labor inspection with a complaint about unlawful suspension.

Nuances of dismissal of the chief accountant

Dismissal or removal of the chief accountant is a rather complicated process, since this is a specialist high level, in whose hands the key affairs of the organization are concentrated. He is obliged to transfer cases. The following persons can accept them:

  • Director of company.
  • A person temporarily acting as chief accountant on the basis of an order.

A detailed act of transfer of cases is drawn up, on which both parties put their signatures. It should reflect all the nuances. This will protect the manager from transferring cases in an inappropriate manner. If there are many cases transferred, a commission with the appropriate competence or auditors can be involved in the process.

IMPORTANT! The accountant, after being removed from office, retains responsibility for violations that were committed by him during his service. It cannot be removed again, however, it can be brought to administrative responsibility.

The nuances of removing the director

The suspension of an employment relationship with a director is often carried out at the request of the court or officials. For example, similar situation may arise when an employee is accused of inappropriate spending of budget funds. The TC and the Criminal Procedure Code do not contain instructions regarding the algorithm for removing the director. This procedure can be carried out on the basis of the following standards:

  • Of the rules stipulated by the constituent documents.
  • Of the rules specified in the charter of the JSC.
  • Normative acts regulating such situations.

If the listed norms are absent, you can be guided by the general principles of the law. The algorithm that is applicable to the chief accountant may well be applied to the director: an order and an act are drawn up. All executed documents are registered in the journal.

ATTENTION! The cases in which employees receive payments during the period of forced downtime are listed above. If this situation does not fall under this list, then no salary is paid to the employee.

In the practice of personnel officers, in a number of cases, a problem arises with the implementation of the instructions of the investigation (inquiry, court) on the dismissal from work of both the head of the organization and another employee involved as a suspect (accused) in a criminal case. As a rule, it is necessary to solve the following questions: who and how should formalize the fact of suspension of an employee from work, is it possible to provide another paid leave for the period of suspension, is it permissible to transfer to other jobs, because suspended persons are not allowed to pay for temporary downtime, which can drag on for an indefinite period? Etc. These questions are considered by the author of the article on the example of the removal of the head of an organization from work.

Reasons for suspension

First of all, we recall general requirements labor legislation regarding the removal from office.

According to Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend from work (not allow to work) the employee:
- appeared at work in a state of alcoholic, drug or toxic intoxication;
- who did not undergo training and testing of knowledge and skills in the field of labor protection in the prescribed manner;
- not passed in the prescribed manner, mandatory preliminary or periodic medical checkup;
- if contraindications are identified in accordance with the medical opinion for performing work stipulated by the employment contract;
- at the request of bodies and officials authorized federal laws and other regulatory legal acts;
- in other cases stipulated by federal laws and other regulatory legal acts.

What additional payment can a personnel officer qualify for,

In these cases, the employer suspends (does not admit to work) the employee from work for the entire period of time until the elimination of the circumstances that were the basis for the suspension from work or non-admission to work.

During the period of suspension from work (non-admission to work), the employee's salary is not charged, with the exception of cases provided for by federal laws.

Note! Previously, only an accused who was an official could be suspended from office. However, since the entry into force of the Federal Law of 04.07.03 No. 92-FZ "On Amendments and Additions to the Criminal Procedure Code of the Russian Federation", which in Part 1 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, the words “if an official is involved as an accused and, if necessary, his temporary suspension from office” were replaced by the words “if it is necessary to temporarily remove a suspect or accused from office”, the circle of persons who are subject to the requirements of this article was significantly expanded by the legislator and is not limited to the categories listed in the footnote to Art. 285 of the Criminal Code of the Russian Federation (see Review of the supervisory practice of the Judicial Collegium for Criminal Cases The Supreme Court RF for 2004)

In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection, or a mandatory preliminary or periodic medical examination through no fault of his own, he is paid for the entire period of suspension from work as for idle time.

Temporary removal of a manager from office

In practice, the need to remove the head of an organization from work (position) at the request of bodies and officials authorized by federal law arises when the head is involved as a suspect (accused) in a criminal offense.

Can be removed from work as a manager budgetary organization, accused, for example, of misappropriation of budgetary funds (Art. 285 of the Criminal Code of the Russian Federation), and the head of a commercial organization, suspected, for example, of illegally obtaining a loan (Art. 176 of the Criminal Code of the Russian Federation).

According to the current criminal procedural legislation, only the court, including in the course of pre-trial proceedings, is authorized to initiate the temporary removal of a suspect or accused from office (subparagraph 10, paragraph 2, article 29 of the Criminal Procedure Code of the Russian Federation). The court can do this on the basis of Art. 111 and 114 of the Code of Criminal Procedure of the Russian Federation at their own discretion or in order to satisfy the request of the inquiry officer or investigator agreed with the prosecutor, if they consider it necessary to apply this measure of procedural coercion to the head.

In accordance with paragraph 3 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, the court, having issued a resolution on the temporary removal of the suspected (accused) manager from office, must send him to the place of work with which the investigation is connected. A temporary suspension from work can be canceled only on the basis of a resolution of an inquiry officer, investigator, prosecutor (hereinafter - law enforcement agencies), issued by them when there is no need to apply this measure (clause 4 of article 114 of the Criminal Procedure Code of the Russian Federation).

Due to the fact that a long period of removal of the manager (hereinafter referred to as the director) from office is possible, we will consider the following situation from the point of view of the consequences that may result from suspension from work both for himself and for the organization.

So, the judge, guided by the procedural rules and taking into account Art. 20, 273-275 of the Labor Code of the Russian Federation, sent the employer a copy of the court order to dismiss the director. The law enforcement agency initiating the removal of a director from office through the court is not itself entitled to enforce the court's decision, so this must be done by the authorized representative of the organization that is the director's employer.

It should be borne in mind that in some cases the term of the preliminary investigation may be repeatedly extended, therefore, formally, the removal from office can be quite lengthy (Article 162 of the Code of Criminal Procedure of the Russian Federation).

However, the problem is that neither the Labor Code of the Russian Federation, nor the Code of Criminal Procedure of the Russian Federation contains a detailed procedure (mechanism) for removing a director from office. There is one more difficulty: the legislator allows the organization to be managed in various ways, for example, by its only participant (founder), a managing organization (manager), an executive collegial body, which can also take any decision that entailed a violation of criminal legislation.

If the procedure for removing the director is not provided for in the constituent documents of the organization, then the court decision will need to be executed, applying the provisions of regulatory legal acts regulating similar relations, and in the absence of such norms, proceed from the general principles and meaning of the legislation.

However, I think that it will be enough to refer to the charter of the joint-stock company, which, accordingly, must meet the requirements of Federal Law No. 208-FZ dated 26.12.95 “On joint stock companies”(Hereinafter - the Law on JSC).

QUOTING THE LAW

1. Obtaining by an individual entrepreneur or the head of the organization of a loan or preferential terms of lending by submitting to the bank or other creditor knowingly false information about the economic situation, or financial condition individual entrepreneur or an organization, if this act caused major damage, -

shall be punishable by a fine in an amount of up to two hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of up to eighteen months, or by arrest for a term of four to six months, or by imprisonment for a term of up to five years.

2. Unlawful receipt of a state targeted loan, as well as its use not for its intended purpose, if these acts have caused major damage to citizens, organizations or the state, -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to two years, or by imprisonment for a term of two to five years.

Article 176 of the Criminal Code of the Russian Federation

1. Expenditure of budget funds by an official of the recipient of budget funds for purposes that do not meet the conditions for their receipt, determined by the approved budget, budget schedule,

a notice of budgetary appropriations, an estimate of income and expenditure, or another document that is the basis for receiving budget funds, committed on a large scale -

shall be punishable by a fine in the amount of one hundred thousand to three hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to two years, or by arrest for a term of four to six months, or by imprisonment for a term of up to two years, with deprivation of the right hold certain positions or engage in certain activities for up to three years or without.

2. The same act committed:
a) by a group of persons by prior agreement;
b) on an especially large scale, -

shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by imprisonment for a term of up to five years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years or not.

Note. A large amount in this article, as well as in article 285.2 of this Code, is recognized as an amount of budgetary funds exceeding one million five hundred thousand rubles, and an especially large amount - seven million five hundred thousand rubles.

Article 285.1. RF Criminal Code

Based on the content of par. 3 p. 4 art. 69 of the Law on JSCs, the competence to suspend the powers of a director is usually vested in the board of directors ( supervisory board) of the company (hereinafter - the board of directors). Simultaneously with the above decision, the board of directors must also make a decision on the formation of a temporary sole executive body of the company (hereinafter - the interim director), as well as on holding an extraordinary general meeting shareholders to resolve the issue of the need for early termination of the powers of the dismissed director and the election (appointment) of a new director or the transfer of powers of the director to the managing organization or manager. Such a decision is made by a three-fourths majority of the board of directors, and the votes of the retired board members are not taken into account.

The procedure for convening and holding meetings of the board of directors is determined by the charter of the company or its internal document. Moreover, the decision of the board of directors can also be made based on the results of absentee voting, if it is provided for by the charter or internal document of the company (Article 68 of the Law on JSC). In any case, the document that suspends the director's activities at the request of law enforcement agencies is the protocol.

The protocol should indicate for what period and at whose request the director is removed from work.

Payment of benefits, possibility of work and use of vacation

Considering the fact that for the period of suspension from work (non-admission to work), the employee's wages, as a rule, are not charged, the employer needs to make sure that this case the exceptions provided for by federal laws do not apply (part 3 of article 76 of the Labor Code of the Russian Federation). In the example under consideration, the Law on JSCs does not provide for exceptions, just as they were not found in other federal laws concerning the activities of government organizations.

Therefore, if the court satisfies the petition of law enforcement agencies to remove the head from office on the basis of Part 6 of Art. 114 of the Code of Criminal Procedure of the Russian Federation, a suspect or accused director temporarily suspended from office is entitled to a monthly allowance in the amount of five minimum amounts wages (Minimum wage), which is paid to him in accordance with clause 8 h. 2 Art. 131 of the Criminal Procedure Code of the Russian Federation. Considering that the base amount,

used in the calculation of scholarships, benefits and other compulsory social payments, is in accordance with the Federal Law of 19.06.00 No. 82-FZ "On the minimum wage" 100 rubles., the amount of the specified allowance will be equal to 500 rubles.

The allowance is paid by order of an inquiry officer, investigator, prosecutor or judge, or by a court ruling (part 3 of article 131 of the Code of Criminal Procedure of the Russian Federation).

Taking into account the fact that the director is removed from office only by a court order, the judge must formulate it clearly and reasonably enough, in particular, indicate the date from which this manual assigned.

If the judge did not indicate the payment of benefits, then the investigator has the same right, who, according to Art. 476 of the Code of Criminal Procedure of the Russian Federation is obliged in the form of Appendix No. 142 to issue a resolution on the payment of procedural costs. He must send this decision to the financial authority that makes payments of budgetary expenditures, while simultaneously notifying the suspected (accused) director of the decision.

The allowance is paid from funds federal budget according to the rules stipulated by the decree of the Council of Ministers of the RSFSR dated 14.07.90 No. 245 “On approval of the Instruction on the procedure and amount of reimbursement of expenses and payment of remuneration to persons in connection with their summons to the bodies of inquiry, preliminary investigation, prosecutor’s office or court”. Nevertheless, directors who are held criminally liable and suspend labor activity the authorities should take into account that the state (represented by law enforcement agencies) often does not fulfill the “increased” obligations contained in this resolution. Moreover, this decree still does not indicate the costs of paying benefits to persons suspended from work. Therefore, the resolution of the Plenum of the Supreme Court of the Russian Federation dated 10.10.03 No. 7 "On introducing the draft Federal Law" On introducing an amendment to Article 131 of the Criminal Procedure Code of the Russian Federation "to the State Duma of the Federal Assembly of the Russian Federation" contains a proposal to supplement this article with part 4 of the following content : "The procedure for reimbursing procedural costs and the amount of the amounts paid are established by the Government of the Russian Federation."

The Supreme Court of the Russian Federation, apparently, assumes that if the Government of the Russian Federation itself establishes the procedure for compensation and the amount listed in Art. 131

QUOTING THE LAW

1. Procedural costs are expenses related to the proceedings in a criminal case, which are reimbursed at the expense of the federal budget or funds of the participants in criminal proceedings.

2. Procedural costs include: ...

8) monthly state allowance in the amount of five times the minimum wage,

paid to an accused who has been temporarily removed from office in accordance with the procedure established by part one of Article 114 of this Code.

3. The amounts specified in part 2 of this article shall be paid by order of an inquiry officer, investigator, prosecutor or judge, or by a court ruling.

Extracts from Art. 131 of the Criminal Procedure Code of the Russian Federation

Code of Criminal Procedure of the Russian Federation of procedural costs, then it will not only be burdensome for the state treasury, but also effective. Moreover, according to Art. 132 of the Code of Criminal Procedure of the Russian Federation, all temporary procedural costs incurred by the federal budget (except for the payment of an interpreter and a defender by appointment) associated with a specific process are recovered from convicts. However, to date, the legislator has not eliminated the gaps in the listed legislative norms, and the payment of this allowance is problematic.

Having satisfied the petition of the investigating authorities, the judge, in accordance with Part 6 of Art. 114 and art. 477 of the Code of Criminal Procedure of the Russian Federation, which determines the form of the decision on the temporary suspension of the accused from office (the suspect is not taken into account in the form - see Appendix 13. - Ed.), Is obliged to fill out clause 2 of the operative part of this form on the appointment of a monthly state benefit in the amount of 5 minimum wages from the moment deprivation of the head of livelihood.

Note one more inconsistency in paragraph 8, part 2 of Art. 131 of the Criminal Procedure Code of the Russian Federation and part 6 of Art. 114 of the Criminal Procedure Code of the Russian Federation - the suspect is also not included here. In practice, this makes it possible for a “conscientious” judge (interrogator, investigator) to exclude a suspect from the number of persons who are entitled to receive state benefits, using the wording “not allowed”.

Does a manager have an opportunity to earn money in any way in case of long-term suspension from work?

With the literal interpretation of the relevant provisions of the law, the prohibition of law enforcement agencies to hold leadership positions does not formally exclude the right to hold this enterprise non-management positions or perform other work, and also does not limit the opportunity to temporarily get a job in another organization for employment contract, provide services under a civil law contract or engage in private business.

In my opinion, there is also no problem with the use of vacation - neither the Labor Code of the Russian Federation, nor the Code of Criminal Procedure of the Russian Federation contain such restrictions. The director is an employee of the organization, and although the length of service, which gives the right to an annual

BTW TO SAY ...

The legislator, in my opinion, ignored such a concept as a living wage, and did not take into account that the suspect (accused), in the event of the termination of criminal prosecution, has the right to compensation for losses during the implementation of rehabilitation measures. In addition, it would be nice to take into account that, based on the provisions contained in the Decree of the Government of the Russian Federation of 11.04.05 No. 205 “On the minimum standards of nutrition and material and welfare of convicts

to imprisonment, as well as on food and living standards for suspects and those accused of committing crimes who are in the detention facilities of the Federal Service for the Execution of Punishments and the Federal Security Service of the Russian Federation, for peacetime ”, According to my rough estimates, it turns out that the persons listed in it, who are kept under the “patronage” of the state, spend a similar amount per week, not a month.

As practice shows, a judge, going to meet the person investigating the case, often issues a resolution dismissing the director not from his position, but with the wording “remove from managerial positions”, which practically makes it impossible for the director to work for any other leadership position (for example, a site foreman or a sector chief) in this organization

basic paid leave, the time of absence of the employee at work without good reason, which include the suspension from work under Art. 76 of the Labor Code of the Russian Federation, this does not deprive him of the opportunity (in the absence of restrictions in the law) to use the vacation due to him.

It follows that neither house arrest and related restrictions (Article 107 of the RF Code of Criminal Procedure), nor the territorial restriction due to recognizance not to leave the country and proper behavior (Article 102 of the RF Code of Criminal Procedure) hinder (since there are no such restrictions in the legislation) or to him, nor to the organization to exercise the right to paid vacation due to the director.

Concluding the presentation of the topic, we draw the readers' attention to the legal consequences for the director, which are associated with the termination of the criminal case and criminal prosecution. In accordance with Part 2 of Art. 212 of the Criminal Procedure Code of the Russian Federation in the presence of the grounds contained in Ch. 4 of the Criminal Procedure Code of the Russian Federation, in particular in paragraphs 1 and 2 h. 1 tbsp. 24 and clause 1 of part 1 of Art. 27 of the Code of Criminal Procedure of the Russian Federation, the investigator or prosecutor accepts the provisions of Chapter. 18 of the Code of Criminal Procedure of the Russian Federation, measures for the rehabilitation of a person subjected to criminal prosecution. The right to rehabilitation of persons involved as suspects or accused includes, among other rights, the right to compensation for property damage and restoration in labor rights.

According to Art. 135 of the Code of Criminal Procedure of the Russian Federation, after the recognition of the right to rehabilitation (Articles 133 and 134 of the Code of Criminal Procedure of the Russian Federation) and the satisfaction of law enforcement agencies with the request of the rehabilitated person for compensation for property damage, the director is supposed to compensate, in particular, wages and other funds that he lost as a result of criminal prosecution. In case of dissatisfaction with the amount of payments determined in the resolution of law enforcement agencies, the director can appeal them in the manner prescribed by Chapter. 16 of the Criminal Procedure Code of the Russian Federation. Based on Art. 136 of the Criminal Procedure Code of the Russian Federation, he is also entitled to a whole range of measures to compensate for moral damage.

As for the restoration of labor rights, it is carried out in the manner prescribed by Art. 399 of the Code of Criminal Procedure of the Russian Federation, and in case of disagreement with the adopted judgment the rehabilitated person has the right to apply to the court by way of civil proceedings.

BTW TO SAY ...

In some cases, the payment of benefits can be made through the organization where the person dismissed from office works, if this organization is funded from the federal budget, that is, when the treasury is the same. This follows from the explanation of the Ministry of Finance of Russia, in which, when asked about which article of the economic classification of budget expenditures (ECRB), the monthly allowance is paid to the accused federal civil servant (presumably, to the director of the FSUE or other organization financed from the federal budget), temporarily detached

from office, the following answer was given: “The costs associated with the payment of the monthly state allowance in accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation to an accused temporarily dismissed from office in the amount of 5 minimum wages (clause 8 of part 2 of article 131 of the Code of Criminal Procedure of the Russian Federation) are reflected in sub-article 110110EKRB “Payment for civil servants” until he is found guilty of a crime. ”

It is necessary to draw the readers' attention to the fact that in the response of the Ministry of Finance of Russia only the accused is indicated and the suspect is absent, which is due to the inconsistency of the provisions contained in the Criminal Procedure Code of the Russian Federation.

Dismissal from work is an atypical action that employers do not often face. So, unfortunately, there are a lot of mistakes in this area. Therefore, in order not to get into a mess, let's take a look at the main ones. Moreover, in a number of cases established by law, the employer is obliged to remove the employee from work.

IN Labor Code RF of the special concept of "suspension from work" has not been established. Suspension from work means a compulsory prohibition of an employee to perform his job duties, initiated by the employer or other authorized person.

Suspension cases

The employer is obliged to suspend the employee from work in cases (Article 76 of the Labor Code of the Russian Federation):

  • his appearance at work in a state of alcoholic, drug or other toxic intoxication;
  • if the employee has not undergone training and testing of knowledge and skills in the field of labor protection in the prescribed manner;
  • if the employee has not passed, in the prescribed manner, a mandatory medical examination (examination), as well as a mandatory psychiatric examination in cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
  • identifying, in accordance with the medical opinion, contraindications for the employee to perform work stipulated by the employment contract;
  • suspension for up to two months of the employee's special right (license, right to manage vehicle, the right to bear arms, other special rights), if this entails the impossibility of the employee to fulfill his obligations under the employment contract and if it is impossible to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or work corresponding to the qualifications of the employee, and a vacant lower position or lower-paid work), which the employee can perform taking into account the state of his health;
  • requirements of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;
  • in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation;
  • as well as for a period of up to four months - in case of establishing, on the basis of a medical opinion, the need to transfer an employee if it is impossible to carry out such a transfer. This obligation arises for the employer, regardless of the reason for such impossibility of transfer (the employee's own refusal to transfer or the lack of appropriate work for the employer). Suspension is carried out for the entire period specified in the medical certificate, with the preservation of the place of work (position) (Article 73 of the Labor Code of the Russian Federation).

Question in topic

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In our store there was a theft (or rather, the appropriation of the entrusted property). The employee who is accused of this is the financially responsible person. A preliminary investigation is underway. The leader, fearing further criminal actions from the outside this employee, gave personnel service an instruction to suspend him from work. As far as I understand, we have no right to do this? How can we secure ourselves against the possibility of a repeat of the crime? The employee does not insist on dismissal, and the employer does not want to dismiss him until the preliminary investigation is over and all the circumstances of the case are clarified.

Yes, you have no right to suspend an employee from work. The employer has established only the obligation to remove him in cases provided for by the Labor Code of the Russian Federation. Theft or embezzlement of entrusted property is not included in the list of grounds for removal (Article 76 of the Labor Code of the Russian Federation). The only reason suitable for your situation is the removal of an employee at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation. Such a body in the conduct of preliminary investigation is the court. According to Art. 114 of the Code of Criminal Procedure of the Russian Federation, the investigator, with the consent of the head of the investigative body, as well as the inquirer, with the consent of the prosecutor, initiates a corresponding petition before the court at the place of preliminary investigation. However, such actions are wholly and entirely the initiative of the preliminary investigation bodies, and not the employer. Of course, no one forbids the employer to intercede with the investigator about this. But whether your petition will be satisfied is a big question. In any case, you can restrict the access of the guilty employee to material assets, not trusting him with them, and direct his actions to perform other functions in accordance with his job duties. For example, for the formation of statements, archival cash documents, etc. And there is no removal, and at the same time, values \u200b\u200bare temporarily not entrusted. The employer has achieved the goal and the law has not been violated.

Suspension terms

Suspension period lasts from the moment the above circumstances are revealed and until they are eliminated (Article 76 of the Labor Code of the Russian Federation). If the circumstances in connection with which the legislator connects the employer's obligation to suspend the employee from work are not immediately identified by the employer, but after a lapse of time, the employer is obliged to suspend the employee immediately upon revealing these circumstances.

Question in topic

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An employee who has received a medical opinion on the need to transfer to light work hides this due to the fact that he knows that the employer does not have the opportunity to transfer him to another job. In addition, there is a possibility that he will receive a more stringent medical opinion in the future - about the need for constant transfer to another position. The employer accidentally found out about this, but he does not have supporting documents about the employee's health. What should an employer do? Is he obligated or entitled to remove such an employee from work?

The law assigned the employer only the obligation to remove from office, without giving him the right to do so. Since you do not have any documents certifying the need to transfer the employee to another position, you, as an employer, should not remove the employee. Removing him from office, you may encounter his resistance, and in the future, possibly - with a dispute over the recognition of the suspension as illegal and the collection of average earnings for the entire period of suspension. However, due to the presence in the legislation of the requirements for a regular medical examination of most categories of workers, the employee can be routinely sent by you for a medical examination, the results of which he cannot hide. When receiving a medical opinion based on the results of a routine examination, feel free to remove the employee, if you do not have the opportunity to transfer him to light work.

An option for an extended suspension period. According to Art. 73 of the Labor Code of the Russian Federation, an employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical opinion, need a temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate work is terminated in accordance with paragraph 8 of the first part of Art. 77 of the Labor Code of the Russian Federation. However, the employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work. for a period determined by agreement of the parties ... Thus, the law contains only one case of an extended (more than four months) suspension period.

Note

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The period of suspension of an employee who has not passed the mandatory medical examination (examination) through no fault of his own from work is included in the length of service, which gives the right to annual paid leave (Article 121 of the Labor Code of the Russian Federation). The specified experience also includes the time of forced absenteeism during illegal dismissal or suspension from work and subsequent reinstatement in the previous job.

However, the length of service, which gives the right to an annual basic paid leave, does not include the time of the employee's suspension from work in the cases provided for in Art. 76 of the Labor Code of the Russian Federation (that is, due to all reasons beyond the control of the employer).

Remuneration for work during the period of suspension

The most important issue for the employee is the payment of the suspension time. By general rule, enshrined in Art. 76 of the Labor Code of the Russian Federation, during the period of suspension from work (non-admission to work), the employee's wages are not charged , except as otherwise provided by law.

Such exceptions installed for the following cases:

  1. In accordance with Art. 114 of the Code of Criminal Procedure of the Russian Federation, if it is necessary to temporarily remove a suspect or accused from office, the investigator, with the consent of the head of the investigative body, as well as the inquirer, with the consent of the prosecutor, initiates an appropriate petition before the court at the place of the preliminary investigation. A suspect or accused who has been temporarily removed from office is entitled to a monthly state allowance, which is paid to him in accordance with paragraph 8 of part 2 of Art. 131 of the Code of Criminal Procedure of the Russian Federation in the amount of five times the minimum wage. In their meaning, these payments are procedural costs that are reimbursed at the expense of the federal budget or funds of the participants in criminal proceedings.

    Note

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    According to the Federal Law of 01.06.2011 No. 106-FZ "On Amendments to Article 1 of the Federal Law" On the Minimum Wage "from 01.06.2011 the minimum wage is set at 4611 rubles per month.

    Analyzing this norm, personnel officers are inclined to make the same mistake: when solving the issue in question, they apply the minimum wage in the amount of 100 rubles. However, in accordance with Art. 3 of the Federal Law of 19.06.2000 No. 82-FZ "On the minimum wage" the minimum wage established by Art. 1 of this law (that is, in the amount of 4,611 rubles), is applied exclusively to regulate wages and determine the amount of benefits for temporary disability, for pregnancy and childbirth, as well as for other purposes of compulsory social insurance. Based on the content of Art. 4 and 5 of the said law, the base amount of 100 rubles is applied when calculating the amount of scholarships, benefits and other compulsory social payments, as well as taxes, fees, fines and other payments, while the monthly state allowance paid to a suspect or accused temporarily dismissed from office by a court decision, does not apply to such payments and payments. This conclusion is confirmed by the Review of the legislation and judicial practice of the Supreme Court of the Russian Federation for the 2nd quarter of 2009, approved by the resolution of the Presidium of the Supreme Court of the Russian Federation of September 16, 2009 (definition No. 84-О09-11).
    It is noteworthy how the point of view on this issue has changed. Thus, the Federal customs Service back in 2007, she pointed out in her letter dated 22.05.2007 No. 01-06 / 18997 (now inactive) that the payment of a monthly allowance in case of temporary suspension from office to a suspect or accused by a court decision of an official in the amount of five minimum wages should be made on the basis of from the base amount equal to 100 rubles. However, in 2010, her opinion changed dramatically. According to the letter of the Federal Customs Service of the Russian Federation of 11.10.2010 No. 01-11 / 49495 "On the amount of benefits for temporary suspension from office by court decision" government agency indicates that the monthly state allowance is intended to compensate for the loss in the salary (pay) of the relevant officials, and therefore the calculation of the monthly state allowance should be made on the basis of the established minimum wage used to regulate labor remuneration, which from 01.01.2009 amounted to 4330 rubles per month (and from 01.06.2011, respectively, - 4611 rubles). However, this calculation is not always applied.

    Arbitrage practice

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    The cassation ruling of the judicial board on civil affairs Of the Saratov Regional Court on November 15, 2007, it was concluded that during the temporary removal of an OVD officer from office in the event that he was brought in as an accused of a crime that makes it impossible for him to execute official duties, the monetary allowance is paid to him in full. The court motivated its conclusion by the provisions of Art. 16 "Regulations on service in the internal affairs bodies of the Russian Federation", approved. Resolution of the Supreme Soviet of the Russian Federation dated December 23, 1992 No. 4202-1.

  2. According to paragraph 2 of Art. 33 of the Federal Law of 30.03.1999 No. 52-FZ "On the sanitary and epidemiological well-being of the population" persons who are carriers of infectious agents, if they can be sources of the spread of infectious diseases due to the peculiarities of the production in which they are employed, or the work they perform , with their consent, are temporarily transferred to another job that is not associated with the risk of the spread of infectious diseases. If it is impossible to transfer on the basis of decisions of the chief state sanitary doctors and their deputies, they are temporarily suspended from work with the payment of social insurance benefits. The social insurance benefit is calculated according to the rules established by the Federal Law of December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood."
  3. Part 2 of Art. 32 of the Federal Law of 27.07.2004 No. 79-FZ "On State civil service Of the Russian Federation "gives the representative of the employer of a civil servant the right to remove from the civil service position being replaced (not to allow job duties) a civil servant during the period of conflict of interest settlement. At the same time, the civil servant retains a salary for the entire period of removal from the civil service position being replaced.

    Note

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    According to Art. 10 of the Federal Law of December 25, 2008 No. 273-FZ "On Combating Corruption", a conflict of interest in the state or municipal service is understood as a situation in which the personal interest (direct or indirect) of a state or municipal employee affects or may affect the proper performance of his ( official) duties and in which a contradiction arises or may arise between the personal interest of a state or municipal employee and the rights and legitimate interests of citizens, organizations, society or the state, which can lead to harm to rights and legitimate interests citizens, organizations, society or state. And under the personal interest of a state or municipal employee, which affects or may affect the proper performance of his official (official) duties, we mean the possibility of a state or municipal employee in the performance of official (official) duties of income in the form of money, valuables, other property or property services. character, other property rights for themselves or for third parties.

  4. In accordance with Part 6 of Art. 6 of the Federal Law of December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood" in the case of quarantine of an employee who has been in contact with an infectious patient or who has been diagnosed with a bacterial carrier, for the entire time of his suspension from work in In connection with the quarantine, a temporary disability benefit is paid. If children under 7 years of age attending preschool are subject to quarantine educational institutions, or other family members recognized as legally incompetent, the temporary disability benefit is paid to the insured person (one of the parents, another legal representative or another family member) for the entire quarantine period.
  5. In accordance with paragraph 9 of Art. 41.7 of the Federal Law of 17.01.1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation", an employee who has committed a misconduct may be temporarily (but not more than one month) removed from office with a paycheck until the issue of a disciplinary sanction is resolved. Removal from office is carried out by order of the head of the body or institution of the prosecutor's office, who has the right to appoint an employee to the relevant position. During the period of suspension from office, the employee is paid a salary in the amount of official salary, surcharges for class rank and seniority. The same amount is paid for the time of dismissal of the prosecutor for the entire period of investigation of the criminal case initiated against him.
    The time for the suspension of an employee of the investigative committee who committed a misdemeanor until the issue of applying a disciplinary penalty is resolved (but not more than one month) is paid in almost the same amount - in the amount of pay ( monetary allowance), in the amount of the official salary (salary according to position), additional payments for a special rank (salaries according to military rank) and additional payments (allowances) for length of service (parts 9 and 10 of article 28 of the Federal Law of 28.12.2010 No. 403-FZ " On the Investigative Committee of the Russian Federation ").
  6. In accordance with Art. 76 of the Labor Code of the Russian Federation in cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire period of suspension from work as for idle time ... Payment for downtime is regulated by Art. 157 of the Labor Code of the Russian Federation.

Removal procedure

The suspension procedure can be described as a sequence of actions by the employer:

  1. Revealing the circumstances specified in Art. 76 of the Labor Code of the Russian Federation, in connection with the occurrence of which the employer has the obligation to remove the employee. For example, an employee's presentation of a medical certificate.
  2. Search in staffing table other vacancies (for cases where the employer is obliged to offer the employee a temporary transfer). If there is no such obligation in the law, this stage is skipped.
  3. Written notification of the employee about the offered vacancies with the employer (other work). Since the obligation to offer another job for the employer arises only in two cases: in the presence of a medical opinion on temporary transfer for "light" work and when the special right of the employee is suspended, then the passage of the considered stage of the offer by the employer of another job to the employee is provided only in these cases. In case of consent to the transfer, the employer follows the standard procedure for transferring the employee to another position.
  4. In the absence of vacancies and other work that the employee can perform (in cases of passing stages 2 and 3) and in all other cases - issuing an order to remove the employee from office with the obligatory indication of the period of suspension and reasons. The form of the order is arbitrary, since the unified form of this document has not been legally approved.
  5. Familiarization of the employee with the order under a personal signature. In case of his refusal to familiarize himself or certify the fact of acquaintance with his signature - drawing up an act on this.
  6. Actual suspension from work (exclusion from work).
  7. After elimination of the circumstances that caused the employee to be suspended from work - the issuance of an order for admission to work and the actual admission of the employee to work. The legislator has not approved a unified form of the order for admission to work. In any form of the order for admission to work, it is necessary to indicate the date of admission of the employee to work, the reasons that served as the basis for admission. It is also possible, as one of the points, to fix the order of the accounting department of the enterprise to begin calculating the employee's wages in full from the date of his admission to work. The employee must be familiarized with the order under a personal signature. If the employer refuses to sign, the commission draws up a corresponding act.

Dismissal is not a regularity of an employee's suspension from work. Dismissal is possible only in the following cases:

  • the employee's refusal to transfer if, in accordance with the medical opinion, he needs a temporary transfer to another job for a period of more than four months or a permanent transfer (Article 73 of the Labor Code of the Russian Federation). In this case, the dismissal is made in accordance with clause 8 of the first part of Art. 77 of the Labor Code of the Russian Federation;
  • failure to eliminate the circumstances that caused the employee's suspension from work at the end of the suspension period;
  • applying the most stringent disciplinary measure to an employee - dismissal. At the same time, the dismissal is not a consequence of suspension from work, but a consequence of the employee's continuing violation of labor discipline.

Major mistakes when suspending

Since such a procedural measure as suspension is still rare for most employers, mistakes in its application are quite common. Moreover, errors are common in almost all cases. Let's consider the most popular ones.

  1. Application of grounds for suspension, not provided for by Art. 76 of the Labor Code of the Russian Federation. Meanwhile, the absence of a basis for dismissal provided for by law entails the recognition of the order of dismissal as illegal and the collection from the employer of the unearned earnings in favor of the employee. All grounds for suspension are listed in Art. 76 of the Labor Code of the Russian Federation and are not subject to broad interpretation!

    Arbitrage practice

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    An employee may be removed from office only on the grounds provided by law.

    M. applied to the Tukayevskiy District Court to the LLC with a claim to recognize the order on suspension from work as illegal, work book records of dismissal, issuance of a work book, collection of earnings for the time of forced absenteeism and illegal suspension from work and compensation for unused vacation. In support of the claims, M. indicated that she worked in the defendant's branch as a director.<Дата> according to the employer's employees, she was suspended from work (not allowed) on the basis of revealing a shortage in her.<Дата> she submitted a letter of resignation to the employer<дата>, however, on the last day with the order of dismissal, she was not familiarized, the work book was not issued, the calculation was not made.

    Despite the presence in the case of evidence of the notification of the defendant about the date and time of the consideration of the case, the defendant did not appear at the hearing, did not provide evidence, and did not send the requested original documents to the court. On the basis of the documents available in the case, the court established that the plaintiff was unlawfully removed from work. The corresponding order was issued, but the plaintiff was not familiarized with it. Having considered the case, the court found the dismissal of the plaintiff from work illegal due to the absence in Art. 76 of the Labor Code of the Russian Federation, the grounds for dismissal are the identification of shortages. In addition, the suspension procedure was violated. In accordance with Art. 234 of the Labor Code of the Russian Federation, the employer is obliged to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, occurs if the earnings are not received as a result of, inter alia, the unlawful suspension of the employee from work and the delay by the employer in issuing the work book to the employee. The court established that there is an illegal suspension of the plaintiff from work, forced absenteeism in connection with the dismissal of the plaintiff according to her application to date and a delay in issuing a work book to the plaintiff, in connection with which she is illegally deprived of the opportunity to work.

    In connection with the above, M.'s claims against the LLC were satisfied by the decision of the Tukaevskiy District Court of the Republic of Tatarstan dated 05.05.2011 in case No. 2-472. The court declared the order of the LLC to remove the director of the branch M. from his post as illegal; ordered the employer to make an entry in M.'s work book about dismissal by on their own; collected from the defendant in favor of M. earnings for the entire time of illegal suspension from work, for the time of forced absenteeism and delay in issuing a work book.

  2. Failure to comply with the order of suspension. This violation tends to be expressed in non-compliance by the employer with the requirements of the law to offer the employee to temporarily transfer to another position, to perform other work. Such a requirement is established only for cases where it is necessary to suspend an employee for medical reasons on the basis of a medical certificate, as well as on the basis of suspension of the employee's certain right / -permission to perform work.
    Particularly popular is also the absence of an employee's signature in familiarization with the order of dismissal, as well as the absence of an introductory signature in the order for subsequent admission to work. Meanwhile, the lack of familiarization of the employee with these documents deprives the employer of further evidence in court. An employee who is not familiar with the suspension order, which specifies both the suspension period and the payment procedure, and the employer's requirements, for example, to undergo a medical examination, does not comply with the order's requirements on completely legal grounds. Failure to familiarize the employee with the order for admission to work does not give the employer confirmation that the employee is familiar with the day of going to work. In this regard, his further absence from work cannot be regarded by the employer as absenteeism. If the employee refuses to sign the above documents, it is necessary to draw up a commission act on the employee's refusal to read / sign the corresponding order.

    Arbitrage practice

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    Violation of the order of suspension from work and the misapplication of the provisions were the reason for the recognition of the order of suspension as illegal.

    M.A.A. applied to the court with a statement of claim against LLC "GTSK-Stroy", in which, taking into account the clarifications, he asked to recognize the order to dismiss him from work as illegal, reinstate him as a crane operator, and collect wage arrears. The management's suspicions of the theft of diesel fuel by the plaintiff, as well as the fact that the employee did not have a tractor driver's license allowing him to work on a GROVE crane, served as the basis for issuing an order to dismiss the plaintiff from work. The plaintiff considered the suspension from work illegal, since he was not warned about the suspension from work or about dismissal, the grounds for suspension from work do not meet the requirements of Art. 76 of the Labor Code of the Russian Federation.

    Considering the case, the court indicated that Art. 76 of the Labor Code of the Russian Federation does not provide for such grounds for dismissing an employee from work as suspicion of theft, and therefore the court assessed as unlawful dismissal of M.A.A. from work on the specified basis.

    As for the dismissal of M.A.A. on the second ground (failure to present a certificate of a tractor driver), the court found it also illegal for the following reasons. According to the explanations of the representative of the employer, the plaintiff was hired with probationary period three months, during which he had to undergo appropriate training and obtain the appropriate certificate. The trial period has expired, the dismissal has not occurred, and therefore the plaintiff is considered to have passed the test. The court concluded that the plaintiff was initially admitted by the employer to work for which he had no right. With the removal of M.A.A. the employer violated the order of dismissal, provided for by Art. 76 of the Labor Code of the Russian Federation. M.A.A. suspended from work for indefinite term, and he was not offered another job available to the employer - a vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or a lower-paid job. The employer did not provide evidence of the absence of such work at the enterprise.

    Oktyabrsky District Court of Kaliningrad (decision of 19.03.2009 in case No. 2-139 / 2009) M.A.A. partially satisfied: the order to suspend the plaintiff from work was declared illegal, the employer was recovered in favor of the employee not received wages as a result of illegal suspension from work, as well as compensation for moral damage. By the cassation ruling of the Kaliningrad Regional Court dated 05/27/2009, the decision of the Oktyabrskiy District Court was upheld.

  3. Incorrect payment of the suspension period. As a general rule, for the period of suspension of an employee from work, wages are not charged, except for cases established by law. Usually the employer "forgets" about these exceptions.

    Arbitrage practice

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    The period of suspension for undergoing a medical examination not passed through the fault of the employer must be paid in accordance with Art. 76 of the Labor Code of the Russian Federation.

    M. filed a lawsuit against the District Hospital No. 3 MUZ, demanding the cancellation of the order regarding non-preservation of his wages while undergoing a medical examination, collecting wages for the period of suspension from work, as well as for downtime. In support of M. pointed out that he works in the MUZ "RB №3". By order<> he was removed from office for a period of 2 months and ordered to undergo an extraordinary medical examination for the right to drive a vehicle due to his deteriorating health condition.<Дата> he submitted a medical certificate confirming a medical examination with admission to work in his previous position. Asks to cancel the order<> in terms of non-preservation of wages during the medical examination.

    Having heard the explanations of the plaintiff and his representative, having studied the case materials, the court considers the claims subject to partial satisfaction.

    Taking into account the requirements of the legislation (Articles 328, 212 of the Labor Code of the Russian Federation) upon receipt of information about the deteriorating health of the plaintiff, the employer, by order of the MUZ "RB No. 3", suspended M. from work and ordered him to undergo an extraordinary medical examination for the right to drive a vehicle. The order also stated that M. was offered a vacant position<данные изъяты>, in case of refusal to transfer M., to remove from work until the provision of required documents, with a maximum suspension period of up to two months. Clause 5 of the order provides that in case of resignation<данные изъяты> M. not pay wages. However, no evidence was presented to the court to prove that the defendant had organized a medical examination of M. after the deterioration of his health in the prescribed manner. The case file contains the plaintiff's referral for medical examination, issued after the issuance of the contested order.

    Khabarovsk District Court Khabarovsk Territory By the decision of 27.05.2011 in case No. 2-669 / 2011 M.'s claims were satisfied: clause 5 of the order regarding non-accrual of wages for the period of suspension from work for medical examination was canceled.

  4. Use of suspension in the form of disciplinary action, which is not provided for by any norm of the Labor Code of the Russian Federation.

    Arbitrage practice

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    It is illegal to use suspension from work as a disciplinary measure.

    K. filed a lawsuit against the defendant for reinstatement at work, collection of wages, recovery of average earnings for the time of forced absence, compensation for unused vacation and compensation for moral damage. In support of the claim, K. indicated that she had worked at Royal Mebel LLC. As a result of the next meeting of the founders of this company, she was removed from office for lack of confidence. The plaintiff asked to recognize her suspension from work as illegal and oblige the defendant to admit her to work; recover from the defendant the average earnings for the entire period of illegal suspension from work. It follows from the explanations of the defendant's representatives that the reason for the dismissal of the plaintiff from work was mistrust in her, caused by the violations she made in her work. Thus, the defendant used this measure as a disciplinary sanction, intending to dismiss the plaintiff, but did not comply with all provided for in Art. 193 of the Labor Code of the Russian Federation of mandatory actions to terminate an employment contract. However, as indicated by the court, such a measure is not provided for by Art. 192 of the Labor Code of the Russian Federation, establishing a list disciplinary action... Its application is not provided and Art. 76 of the Labor Code of the Russian Federation, listing cases of possible suspension from work.

    In such circumstances, the removal of the plaintiff from work is illegal. In connection with the above, the Sverdlovsk District Court of the city of Kostroma, by its decision of June 25, 2010 in case No. 2-1931 / 10, satisfied K.'s claims: declared K.'s dismissal from work unlawful, ordered Royalty-Furniture LLC to allow K. to work.

Main disputes related to suspension

The subjects of workers' claims against the employer related to dismissal are not diverse. There are several typical requirements of employees, which, depending on the specific situation and circumstances of dismissal, can be single or act in conjunction with other requirements from the above list:

  • on the recognition of the order as illegal;
  • on the recovery of unreceived wages for the period of illegal suspension from work;
  • on reinstatement at work (if the employee was fired after the suspension);
  • collection of average earnings for the period of forced absenteeism;
  • collection of sums of money for the period of downtime due to the fault of the employer;
  • changing the entry in the work book on the grounds for dismissal;
  • on the obligation of the employer to dismiss the employee and issue a work book (typical for situations when an employee expresses a desire to quit of his own free will during the period of suspension and the absence of appropriate response from the employer);
  • on the recovery of compensation for moral damage and the cost of paying for the services of a representative.

The study of the statistics of disputes related to suspension allows us to conclude that deliberate unlawful suspension of an employee from work is much less common than errors of the employer caused by legal illiteracy and lack of study of the issue of suspension human resources... Unfortunately, the only option for correcting the mistakes made may be the cancellation of the order (invalidation) with the issuance of an appropriate order to the accounting department of the enterprise to recalculate the employee's wages, including with compensation under Art. 236 of the Labor Code of the Russian Federation. Otherwise, a labor dispute may arise.

An analysis of judicial practice shows that in the presence of mistakes made by the employer in the suspension of an employee from work, the probability of the order of suspension being recognized as illegal and satisfaction of other requirements of the employee is quite high. Disputes related to suspension are almost always confusing and require both an in-depth study of the situation by the court and careful preparation of the evidence base by the employer on its part. It should be noted that the parties to labor relations do not always go "to the end" in these types of disputes. For such disputes, more often than for other labor disputes, it is typical for the parties to reach agreement and conclude an amicable agreement. Thus, the likelihood of resolving a dispute arising from a violation by the employer of the requirements of labor legislation in terms of compliance with the grounds and procedure for dismissal exists in the interests of both parties.

Arbitrage practice

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The wrongness of both sides of the labor relationship demanded that they conclude an amicable agreement.

Plaintiff N. filed a lawsuit against the defendant OOO Malakhit with a demand to declare illegal the order to dismiss him from his job as a driver and recover compensation for moral damage. N. motivated his arguments by the fact that when he came to work on 03.03.2010, an explanatory letter was demanded from him about the failure to fulfill yesterday's request. After his refusal to give explanations, he was asked to resign, to which he also refused. After that N. was removed from work. The plaintiff considers the suspension to be unlawful, and therefore appealed to the court with the above requirements.

From the testimony of the employer's representatives, the court established that the plaintiff had been inappropriately fulfilling his duties for a long time. An explanatory letter was demanded from him regarding the last failure to fulfill his obligations, to which the plaintiff refused. Then the employer did not allow N. to work. There was no order of suspension from work, which means that there was no suspension from work either. But on March 4 and in the following days N. did not appear at work.

During the trial, the parties came to an amicable agreement. The defendant LLC "Malakhit" dismisses N. from 01.04.2010 at his own request with payment from March 3 to March 31 wages at the tariff. Plaintiff N. asks to terminate the proceedings in connection with the conclusion of an amicable agreement. By the ruling of the Chernushinsky District Court of the Perm Territory dated 06.04.2010 in case No. 2-268 / 2010, the specified terms of the settlement agreement were approved.

Footnotes

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Article 76 of the Labor Code of the Russian Federation does not list all the grounds for the temporary suspension of an employee from work. Other grounds are contained in other articles of the Labor Code of the Russian Federation, federal laws and other regulatory legal acts (paragraph 8, part 1, article 76 of the Labor Code of the Russian Federation).

Grounds for dismissal of an employee from office

These grounds include, in particular:

  1. non-observance by workers employed on underground works, safety requirements or their non-use of personal protective equipment (Article 330.4 of the Labor Code of the Russian Federation);
  2. the grounds specified in the Decree of the Government of the Russian Federation of 10.03.1999 No. 263 "On the organization and implementation of industrial control over compliance with industrial safety requirements at a hazardous production facility";
  3. settlement of conflicts, verification of the reliability and completeness of information on the income of civil servants (clause 2 of article 32 of the Federal Law of 27.07.2004 N 79-FZ "On the state civil service of the Russian Federation");
  4. improper performance by the heads of state organizations of their duties during the state of emergency (Article 13 of the Federal Constitutional Law of 30.05.2001 N 3-FKZ "On the state of emergency").

The grounds for dismissal from office must be specified in federal laws and other regulatory legal acts, other grounds are not allowed. In the event of an appeal to the court or the state labor inspectorate of an employee who was dismissed on grounds not enshrined in legislation, the employer's decision is recognized as illegal. In this case, the employer is obliged to pay the employee the average wage for the entire period of suspension.

Procedure for registration of temporary suspension from office

The order on dismissal from office is drawn up by the employer in any form, since the legislation has not established a unified form. In the line "Base", you should indicate a link to normative act, which was the reason for the employee's suspension. If the expiration date of the suspension is known when the order is issued, then it must be indicated in the order.

Removal from office implies that the payment of wages to the employee is suspended. At the end of the period specified in the document, or after the elimination of the reasons that are the grounds for suspension, the employee must be allowed to work. The employer draws up an order for admission to work in any form and acquaints the employee with it against signature.

Suspension time in the timesheet ( uniform form T-12 or T-13) is marked by affixing an alphabetic (NB) or digital (35) code (prohibition to work for reasons stipulated by law). Employment book entry is not done.

Suspension from office

Suspension of an employee in other cases provided for by federal laws and other regulatory legal acts of the Russian Federation

Procedure

Obtain an official document that contains the decision to suspend an employee

Suspension of an employee may be applied at the request of the competent authority (official) to suspend an employee. Such bodies as, in particular, the state labor inspectorate, the court, and also the bodies exercising state sanitary and epidemiological supervision have the right to make a decision on suspension. Such a requirement is formalized in the form of a decision, protocol, resolution, etc. After receiving such a document, the employer has the obligation to immediately suspend the employee from work.

Familiarize the employee with the suspension order

The order should be printed out and familiarized with the employee against signature - at the bottom of the order, the employee must sign and put the date of familiarization.

Pay suspension time as simple

The period of suspension from work is paid as a simple period if the employee has not passed the mandatory medical examination or labor protection measures through no fault of his own. Downtime is included in the seniority, which gives the right to an annual basic paid leave

In the time sheet, the suspension period is marked by affixing an alphabetic (NB) or digital (35) code.

In addition to issuing an order, it is necessary to give an order to the accounting department to resume the payment of wages to the employee

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