Why you can't be fired. Grounds for dismissing an employee at the initiative of the employer. Dismissal of an employee during a probationary period

You will need

• - Labor Code of the Russian Federation;
• - consultation with an experienced personnel officer;
• - Labour Inspectorate;
• - reports on work, testimonies of colleagues.

Instructions

First, you need to figure out how a dismissal can be formalized. The wording, laws, articles are different, and there are nuances. So, you can be fired “by”, “by agreement of the parties”, “in connection with staff reduction”, “in connection with the liquidation of the enterprise”, “under Article 81 of the Labor Code”. Each of these cases has its own subtleties.

If you are offered to resign voluntarily, the employer expects to get rid of you with little loss, that is, not to pay you what you are owed. “Dismissal at will” is a formulation that suits all employers without exception. Of course, they pay exactly as much as you work when you quit. If the employee does not want to sign the statement, he may be offered “dismissal under the article.”

If you intend to, offer the employer dismissal “by agreement of the parties” and write down your terms in the agreement. In the conversation, you can hint that you know how difficult it is to fire a person “under the article”, and what strong evidence your employer must have. It’s great if you belong to a preferential category of citizens: you are pregnant, raising a child alone, or if you are a mother of many children. Then it is almost impossible to fire you.

If the employer does not agree to these conditions, you should remember whether there were any violations or miscalculations in your work history over the last month or two. What you should pay special attention to: you must not be late, your absence must be documented appropriately, and the performance of your duties must clearly comply with the employment contract you signed. Do not sign papers without looking; when going on a business trip, get a travel certificate.

If you are fired due to staff reduction (clause 2 of Article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer is obliged to notify you of dismissal in advance, offer you another job, identify beneficiaries, report the layoff to the employment service and pay you severance pay in the amount of several salaries upon dismissal.

If you want to be fired upon liquidation of the enterprise, you must also be notified of this no later than 2 months before the dismissal. You have every right to resign early, having received your salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties occurs in accordance with Article 77 of the Labor Code of the Russian Federation, paragraph 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with your employer. A written agreement is concluded that states when you will be fired and what monetary compensation you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You can be fired if the owner of the enterprise changes (Article 81, paragraph 4) if you are the general director, deputy general director or chief accountant. You may be fired for inadequacy for the position held (Article 81, paragraph 3). Then they should assemble an certification commission for you, which will come up with a test task for you. Even if you fail to cope with it, they cannot fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your job duties. Remember, in order to be fired, the violations must be regular and without good reason. In addition, you must have formal disciplinary action.

You may also be threatened with dismissal for absenteeism or tardiness under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is only possible if you did not provide any documents explaining why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles under which you can be fired are “Theft and Embezzlement” and “Loss of Trust.” They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you do get fired, you have every right to continue to fight. Within a month from the date of dismissal, you can sue your employer. You also need to contact the labor inspectorate and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

note

1. If you do not come to work, be sure to confirm the validity of the reason for your absence.

2. Read your employment contract and job descriptions again.

3. Don't be afraid to stand up for your rights.

Helpful advice

If you feel that clouds are gathering, document every step and decision you take.
- Avoid disciplinary action.
- Avoid being late.

Sources:

• How to competently fire an employee?

It's always unpleasant to lose a job. And it doesn’t matter for what reasons this happened. Someone gets laid off, someone is fired for some professional or job inconsistency, someone submits a letter of resignation themselves. But time passes, and the search for another job begins.

You will need

• - summary;
• - covering letter

Instructions

Resist the temptation to constantly feel sorry for yourself. And don't let the guilt of losing your job overwhelm you. This happens to almost everyone. Even if you are not sure that this is always a fair decision on the part of the authorities. But let such thoughts remain in your head only for a short time. This is already in the past. The next step is to find a new place. You need to take this event very responsibly. Simply put, the search for a new job itself needs to be turned into a kind of work.

Think about your priorities and areas of desired work. You may need to broaden your search beyond just your previous major's profile. Based on your experience, education,... If you can't find a permanent job, a good solution is to get a temporary one.

Prepare. If you've never created one, seek professional help or look at examples online. A well-written resume that reflects all your professional skills can be a decisive factor in accepting a new position. If possible, take a cover letter or references from your previous job. You can agree with your work team to recommend you as a specialist if the need arises.

Look for work through labor exchanges, employment newspapers, Internet sites, employment services, and also take advantage of personal connections and acquaintances. If you're stuck, don't waste time: try to learn something new. Go study and learn the basics of another specialty.

If you were fired for any violation of labor discipline or administrative misconduct, this may have a negative impact on getting a new job. But at the interview you can explain in more detail the reasons for the situation that has arisen. You shouldn't talk about this in advance. It is quite possible that it is in your new job that you will be able to show all your talents and abilities.

Video on the topic

due to inadequacy for the position held, do not engage in self-flagellation, analyze your work in the organization, perhaps you were lazy a lot, wasted time, treated your work carelessly. Understand the reasons that caused such an attitude towards work; perhaps you chose an unsuitable field of activity, or you were not satisfied with the organization of work in the company. Take this into account when searching for a job in the future, ask questions that interest you immediately during the interview, so that the situation does not repeat itself next time. If you do not agree with the reason why you were fired, go to court. But the employer cannot fire you without good reason. After your dismissal, rest for a few days and put your thoughts in order. If possible, contact us to better understand yourself. As soon as you have rested, start looking for a new job: write a resume, post it on employment sites, study the labor market, respond to vacancies that interest you. Perhaps dismissal from your current job will serve as an impetus to radically change your field of activity, take care of your health or business. In such a situation, it is very important not to withdraw into yourself, but to choose a goal and gradually achieve it.

For most employees, dismissal without explanation is a rather strange and most often unexpected event that frightens them and causes a lot of misunderstandings. And they have a question about whether such dismissal is possible and whether the law allows termination of an employment contract without sufficient grounds? Is it possible to challenge dismissal without cause and how to do it correctly? This and much more regarding dismissal without explanation will be discussed in today’s article.

Some reasons for leaving.

Many people probably know that it can be severed by the parties for a variety of reasons. In general, all of them can be divided into three large groups - by decision of the employer, by the initiative of the employee, and for reasons beyond the control of the parties.

Let us consider and characterize each of them in more detail. For example, dismissal on the initiative of the boss can be attributed to a gap due to the following reasons:

1. The employee commits guilty actions - theft, insults, fight, and so on;
2. Constant absenteeism;
3. Untimely or poor quality work;
4. Inconsistency between the employee’s qualifications and the vacancy, and so on.

There are other reasons for dismissal in which the employer unilaterally has the right to terminate relations with the employee. Their full list is listed in the Labor Code of the Russian Federation.

The reasons why an employee can terminate a contract include only personal desire. However, at the same time, personal desire can be justified by a variety of circumstances, which the employee is not obliged to inform his superiors about.

For example, an employee is not satisfied with the work schedule, it seems to him that the salary is very low or there is no opportunity for career growth. In addition, there may be other reasons, for example, the employee was given a more favorable job offer. All these and many other reasons can be reduced to voluntary dismissal.

Separately, it is worth mentioning about dismissal due to circumstances beyond the control of the parties, for example, due to the liquidation of the staff. Dismissal is also possible for other reasons provided by law.

In addition, they can be terminated by agreement of the parties. For example, if the employer is not satisfied with the employee for personal reasons, and the employee benefits from dismissal in financial terms, since usually such a severance of relations between the parties is accompanied by the payment of additional monetary compensation to the employee.

In general, the law lists more than 30 reasons for dismissing an employee. But the law does not speak in the most precise way about dismissing an employee without explaining the action. That is why this topic is quite difficult and incomprehensible for a large number of both employees and employers.

And it is precisely because of ignorance or misunderstanding of the law that it is most often violated. Although situations of intentional violation of the law are not uncommon nowadays. In view of this, many employers dismiss employees without reasons, and the latter do not defend their rights.

It is important to understand that illegal dismissal or dismissal carried out in violation of the rules entails not only the responsibility of the manager or legal entity, but also the opportunity for the employee to be reinstated in the workplace.

In addition, the employer will be required to pay a fine, the amount of which is determined individually in each situation, as well as pay all the remuneration due to the employee for the period of forced downtime. In addition, the employee may demand payment of moral compensation, as well as costs of legal proceedings (for example, compensation for hiring a lawyer, etc.).

For employers, in turn, it should be noted that dismissing an employee without reason can develop not only into administrative, but also into criminal liability. Therefore, it is important to dismiss an employee correctly and in compliance with all legal norms. ,

Is dismissal without cause always within the law?

You can't fire someone without reason.

For many employees, being fired without cause is strange, to say the least. And this is quite reasonable. After all, Article 81 of the relevant code clearly outlines the entire range of reasons for which an employer can dismiss an employee.

And dismissal without cause is generally not covered by the provisions of the law.

However, dismissal without reasons is still considered in Article 278. It is, first of all, an additional basis for the dismissal of a certain category of employees, namely management.

That is, if there are sufficient grounds for the dismissal of the head of the enterprise (the reasons for the dismissal of this category of workers differ from those provided for in Article 81), then such dismissal is possible. However, this requires a certain set of circumstances.

In order to dismiss the head of a company, the following reasons may be put forward:

1. Change of founder or owner of the company;
2. Making decisions by the manager that harmed the organization;
3. Committing guilty actions, for example, disclosing trade secrets;
4. An employee running a kindergarten or school has committed an immoral act;
5. or a branch entirely and so on.

Thus, the grounds for dismissal of an ordinary employee and management overlap to some extent, however, for the dismissal of the head of the company there are other, more significant and extensive reasons, due to which the employee can be dismissed without explanation.

Based on this, we can draw the appropriate conclusion: only a manager can be fired without reason, and only if there are sufficient grounds for this.

You cannot terminate an employment contract with an ordinary employee without reasons. Moreover, these reasons must correspond to those specified in the Labor Code.

Thus, if you believe that you were fired for no reason or for an inappropriate reason, you can contact your boss for clarification of the situation. Or complain to the company’s senior management - no one needs conflicts with the law and, most likely, the issue can be resolved at the initial stage under the most favorable conditions for both parties.

Termination procedure

The employee is given a work book.

The procedure for terminating an employment relationship may vary depending on what category of employee is leaving. In general, the standard gap consists of the following points:

• a decision by one of the parties (or both at once) on the need to terminate cooperation;
• issuing a corresponding order and notifying the employee against signature;
• carrying out all accounting calculations;
• issuance of funds due to the employee;
• making appropriate entries in the employee, his personal file and other regulatory accounting documents;
• handing over to the employee all documents and a work book.

If necessary, the procedure may change, depending on why the employee is leaving. For example, when dismissal due to the commission of guilty actions or disciplinary offenses by an employee, the manager will need to additionally collect evidence. That is, sufficient grounds for terminating the employment contract.

In addition, it may be necessary to assemble a commission to assess the qualifications and competence of the employee.

Thus, we can conclude that the procedure for terminating a relationship, regardless of the reasons for which it is carried out, is generally quite standard and differs only in some nuances that may be required in a given situation or circumstances.

Is it possible to challenge management's decision?

The employee can go to court.

For many employees, the question of whether it is possible to challenge the decision of the management team on the need for dismissal or on the dismissal that has already taken place is interesting.

It is impossible to answer this question unambiguously, so let’s try to understand it in more detail and consider all possible options for what is happening.

For example, if the dismissal was carried out for insufficient reasons (the employee was once late for work by 10 minutes, and he was fired for), or if violations were identified during the procedure (an act on administrative violations or guilty actions was not drawn up), then the dismissal may well be considered illegal.

But in the case when the dismissal occurs by decision of the employee himself and everything is done correctly from the legal side, then it is almost impossible to challenge such termination of relations.

In any case, if an employee believes that he was fired illegally or without sufficient grounds, he has the right to file a complaint or petition for reinstatement to the appropriate competent authorities.

In particular, an employee can complain to the following organizations:

1. Prosecutor's Office of the Russian Federation;
2. Labor Inspectorate;
3. Rospotrebnadzor and so on.

The choice of authority depends not only on the circumstances of the incident, but also on the preferences of the employee. Some begin to file complaints with the most “loyal” organizations, and some immediately turn to higher authorities.

In general, both approaches are quite effective, the only difference is the response time and the operating methodology of one or another institution.

There are also situations in which you can try to resolve the matter peacefully, for example, if you “fell under the hot hand” or have committed a serious act for the first time, you may well try to come to an agreement with your superiors and continue working in the company.

For example, someone who has committed a guilty offense can promise that this will not happen again in the future, and if it does happen, he will resign of his own free will. Often such solutions are the most profitable and convenient and allow you to avoid unnecessary conflicts and litigation.

From this video you will learn about the reasons for dismissal.

Form for receiving a question, write yours

Hello, dear friends!

Today I have positive news, my friend called who was laid off, remember? He passed the second stage of the interview and actually got a new job. I keep my fingers crossed for him and hope that everything works out in his favor. You and I have already touched on the topic of staff reduction several times, but I can’t help but think that we haven’t done enough work. Specifically, we have not discussed the nuances of who cannot be laid off.

Taking advantage of people's ignorance of their rights, many employers act, to put it mildly, unsightly, or rather, illegally. It is your responsibility as professionals and employees to know your rights and pass this information on to other employees. Money is good, but you can't buy a reputation.

Let's consider:

• Which category of employees is not subject to staff reductions?
• Under what conditions does an employee have benefits to retain his job?

The topic is small and simple, but important for understanding and assimilation. I do not encourage you to cram what is written below, but you need to read and understand, believe me, this information will be useful to you more than once in your work and in life. Ready? Let's begin!

Who cannot be fired due to staff reduction?

Sometimes downsizing is inevitable. But even in this case, the employer does not have the right to lay off some employees. Who, when and why has special rights and “privileges” during staff reductions?

We recently wrote about what rights an employee has if a company is reducing staff, and how you can defend these rights: What do you need to know about dismissal due to staff reduction? But some employees have special “privileges” when staffing or staffing is reduced.

Simply put, the employer does not have the right to fire them due to staff reduction. True, the workers themselves often do not even suspect that they have any special rights. Therefore, before you get upset about the upcoming layoff, you must first make sure that you really do not have any benefits, and the employer has the right to lay you off.

Of course, each case is individual, and sometimes it is more profitable to “downsize”, look for a new job and at the same time receive financial compensation from the previous employer. But situations are different, and knowing your rights is, in any case, useful.

So, which employees are considered “irreducible” under Russian law? All of them are listed in the Labor Code.

"Non-redundant" employees

By the way, not only individual positions, but also entire divisions, divisions, and departments may be subject to staff reductions. The employer has every right to do this. But, in any case, when laying off workers, the rights of workers must be respected, and those who cannot be laid off must remain in the company. If it is planned to reduce an entire division, then “non-redundant” employees must be transferred to other departments of the organization.

The employer does not have the right to dismiss the following categories of employees due to staff reduction:

1. workers who are temporarily disabled - part 6 of Article 81 of the Labor Code of the Russian Federation (medical certificates will be required to confirm disability);
2. workers who are guaranteed job security during their absence. For example, this includes women on maternity leave (Part 4 of Article 256 of the Labor Code of the Russian Federation), as well as other employees on leave (this includes a variety of types of leave: educational leave, main leave, additional leave, leave without pay) ;
3. pregnant women (the exception is the case when the entire enterprise is completely liquidated) - on the basis of Article 261 of the Labor Code of the Russian Federation;
4. women raising children under three years of age; single mothers raising a child under 14 years of age or a disabled child under 18 years of age, and other persons (this includes guardians, foster parents, etc.) who are raising such children without a mother (an exception to this rule is, again same, liquidation of an enterprise or the commission of guilty actions by these persons) - on the basis of Article 261 of the Labor Code of the Russian Federation;
5. members of trade unions (their rights are described in paragraphs 2, 3 and 5 of Article 81 of the Labor Code of the Russian Federation);
6. employee representatives who conduct collective bargaining;
7. participants in the resolution of collective disputes.

If an employee belongs to any of these categories and was nevertheless dismissed due to redundancy, restoration through the court occurs easily, one might say, almost “automatically”.

Workers with "privileges"

In addition to workers who cannot be laid off, there are also workers who have advantages over their colleagues. First of all, this applies to a situation where an employer is forced to lay off one of two identical positions. For example, out of two accountants working with the “bank, cash desk” section, only one should remain. Who to choose for redundancy? It would seem that the choice depends entirely on the employer. But it is not so.

The Labor Code prescribes to the employer who he should “sacrifice” last. This information is contained in Article 179 of the Labor Code of the Russian Federation. If there are two identical positions, then employees with higher labor productivity and higher qualifications should be retained in the company.

What if the productivity and qualifications of employees are equal? In this case, the employer must take other factors into account. Of the two employees, one of whom is subject to dismissal, the right to remain in the organization has:

1. employees who have a family with two or more dependents;
2. employees in whose family there are no other self-employed workers;
3. employees who received a work injury or occupational disease while working for this employer;
4. employees who improve their skills at the direction of the employer without interruption from work;
5. disabled combatants in defense of the Fatherland.

So, the Labor Code does not assume that “in the face of layoffs” all workers are equal. There are employees who should not be laid off, as well as those who should be laid off only as a last resort. If you fall into one of these categories, you should remember your rights.

What if you are not among the “privileged” and they have every right to lay you off? In this case, the employer must pay sufficient monetary compensation to the employees.

Source: http://www.zarplata.ru/a-id-32187.html

Who cannot be fired due to reduction?

Before making changes to the staffing table, the manager must make a choice about who he can and should keep in the workplace and who will have to leave. The criterion for this is not only an indicator of efficiency, but also certain standards established by law. There are employees who cannot be fired by law, as well as those who have a preferential right to a workplace.

The following categories of citizens cannot be dismissed due to a reduction in the number and staff of workers (Article 261 of the Labor Code of the Russian Federation):

• pregnant women,
• women with children under three years of age,
• single mothers raising a child under 14 years of age (disabled child under 18 years of age),
• other persons raising these children without a mother.

The following categories of citizens have a preferential right to a workplace when laying off employees of an organization (Article 179 of the Labor Code of the Russian Federation):

employees with higher labor productivity and documented qualifications (data on meeting production standards, quality of work, a diploma of higher professional education, obtaining a second education, having an academic degree, academic title, etc.)
with equal labor productivity and qualifications, the following have an advantage:

• family in the presence of two or more disabled family members with full support of the employee;

The following are considered incapable of work:

• children, brothers, sisters and grandchildren who have not reached the age of 18 or are studying full-time in educational institutions, regardless of their organizational and legal form. The exception is institutions of additional education. The norm is valid until the end of such training and until the age of 23 years. Children, brothers, sisters and grandchildren over this age if they became disabled before the age of 18 and have limited ability to work. At the same time, brothers, sisters and grandchildren are recognized as disabled family members, provided that they do not have able-bodied parents;
• one of the parents or spouse, grandfather or grandmother, regardless of age and ability to work. A brother, sister or child who has reached the age of 18 if they are caring for children, brothers, sisters or grandchildren under 14 years of age and are not working;
• parents and spouse, if they have reached 60 or 55 years of age (men and women, respectively) or are disabled people with limited ability to work;
• grandfather and grandmother, if they have reached the ages of 60 and 55 years (men and women, respectively) or are disabled people with limited ability to work, in the absence of persons who, in accordance with the legislation of the Russian Federation, are obliged to support them (Article 9 of the Law of the Russian Federation “ On labor pensions in the Russian Federation");
• persons in whose family there are no other independent workers;
• employees who received a work injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and combat operations to defend the Fatherland;
• employees who improve their qualifications in the direction of the employer without interruption from work;
• other categories of workers provided for by the collective agreement.

In addition, the persons specified in federal laws have a preferential right to remain at work:

1. authors of inventions (Article 35 of the USSR Law of May 31, 1991 No. 2213-1 “On inventions in the USSR”);
2. spouses of military personnel - in state organizations, military units (Article 10 of the Federal Law of May 27, 1998 No. 76-FZ “On the status of military personnel”);
3. citizens discharged from military service, and members of their families at work, where they entered for the first time after dismissal from military service, as well as single mothers of citizens undergoing conscription military service (Article 23 of the Federal Law of May 27, 1998 No. 76-FZ " On the status of military personnel");
4. persons who have suffered radiation sickness and other diseases caused by the consequences of the Chernobyl disaster and associated with radiation exposure. Persons who became disabled as a result of the Chernobyl disaster. Participants in the liquidation of the consequences of the Chernobyl disaster in the exclusion zone in 1986 - 1990. Persons evacuated from the exclusion zone. (Law of the Russian Federation dated May 15, 1991 No. 1244-1 “On the social protection of citizens exposed to radiation as a result of the disaster at the Chernobyl nuclear power plant”);
5. persons exposed to radiation as a result of nuclear tests at the Semipalatinsk test site, who received a total (accumulated) effective radiation dose exceeding 25 cSv (rem) (Article 2 of the Federal Law of January 10, 2002 No. 2-FZ “On social guarantees for citizens exposed to radiation exposure due to nuclear tests at the Semipalatinsk test site").

Provide written notice of layoffs

Two months before dismissal, the employee must be warned against a receipt about the reduction of his position (Part 2 of Article 180 of the Labor Code of the Russian Federation).

If he refuses to familiarize himself with the written notice, then it is sent to him at his home address by registered mail with notification. It is also necessary to draw up an act of refusal to read the written notice. Subsequently, this will help the employer if a former employee goes to court with a claim about the illegality of the dismissal procedure. The employer will be able to document that he did everything to comply with the procedure, and it was the employee who violated it.

Issue a layoff order

The two main documents that launch the process of staff reduction must be drawn up at the first stage of this process. Thus, it is necessary to issue an order to reduce the number or staff of employees, as well as prepare and approve a new staffing table with the date of its entry into force after the completion of the reduction procedure.

Notify employment authorities and trade union

It is necessary to notify the employment service authorities and the elected body of the primary trade union organization in writing about the upcoming release of workers no later than two months before the start of the relevant activities. In case of mass dismissal of workers - no later than three months in advance. It is necessary to indicate the position, profession, specialty and qualification requirements for employees, and the terms of payment for each specific employee.

Dismissal is considered mass if:

1. an enterprise of any organizational and legal form with 15 or more employees is liquidated;
2. The company's staff is being reduced in the following quantities:
   • 50 or more people within 30 calendar days;
   • 200 or more people within 60 calendar days;
   • 500 or more people within 90 calendar days;
3. 1% of the total number of employees is dismissed due to the liquidation of enterprises or a reduction in headcount or staff within 30 calendar days in regions with a total number of employees of less than 5 thousand people.

Industry or territorial agreements may establish other criteria for assessing mass releases.

Offer another position

After the employer has informed the employee in writing about his future layoff, he must take measures to accommodate the employee. The Labor Code requires that each dismissed employee be given the opportunity to be transferred to an existing job in writing (Part 1 of Article 180 of the Labor Code of the Russian Federation). This implies a transfer within one organization, but the employer can assist in the transfer of the employee to another employer. Dismissal due to a reduction in the number or staff of an organization's employees is permitted if it is impossible to transfer the employee with his consent to another job (Part 2 of Article 81 of the Labor Code of the Russian Federation). Failure to comply with this requirement is a violation of labor laws.

The employee must provide a refusal of the proposed position in writing. This will allow you to have documentary evidence of his reluctance to take the proposed position.
The positions offered during internal transfer must be included in the new staffing table. It is mandatory to have approved job descriptions with a list of responsibilities, and the terms of remuneration must also be approved.

If the company does not have a job that matches the employee's qualifications, the employer may offer a lower-level position in the local area. The employer is obliged to offer vacancies in other localities if this is provided for in collective or labor contracts or agreements.

Request a reasoned opinion from the trade union

If the former employee is a member of a trade union, then before terminating the employment relationship with him, it is necessary to send there a copy of the order and other documents that contain the rationale for such a decision. It is also worth sending a copy of the dismissal order to the union. It is advisable to carry out these actions after 1 month, in case of mass layoffs - after 2 months from the moment the employee was notified of the upcoming dismissal.

Elected trade union body, in accordance with Art. 373 of the Labor Code of the Russian Federation, considers this issue within seven working days from the date of receipt of the draft order and copies of documents and sends its motivated opinion to the employer in writing.

If the elected trade union body disagrees with the proposed decision of the employer, it holds additional consultations with the employer or its representative within three working days, the results of which are documented in a protocol. If a compromise has not been reached as a result of consultations, the employer, after ten working days from the date of sending the package of documents to the trade union, has the right to make a final decision. It can be appealed to the relevant state labor inspectorate.

Maintain special procedures for certain categories of workers
Dismissal in connection with the reduction of heads (their deputies) of elective collegial bodies of primary trade union organizations (including within two years after the end of their term of office), elective collegial bodies of trade union organizations of structural divisions of organizations (not lower than workshops and equivalent to them), not exempt from their main job, as well as workers under the age of eighteen, are allowed in addition to the general procedure for dismissal in compliance with the provisions of Art. 269, 374, 376 Labor Code of the Russian Federation.

Issue an order to terminate the employment contract

It must be remembered that the dismissal of an employee at the initiative of the employer (except for the liquidation of the organization) during the period of his temporary disability and while on vacation is not allowed.

Each employee is familiarized with the dismissal order due to a reduction in the number or staff of the organization's employees against signature.

Register an order

It is necessary to register the order in the Register of Orders (Instructions).

Pay severance pay

The calculation and payment of wages, severance pay (in accordance with Article 178 of the Labor Code of the Russian Federation) with all payments due to the employee occurs on the day of dismissal. Calculation of monetary compensation for all unused vacations (preparing a calculation note is required).

If the employment contract is terminated due to the liquidation of the organization, or a reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of average monthly earnings. The person being dismissed retains his average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal. This may be due to the decision of the employment service body if, within two weeks after dismissal, the employee contacted this body and was not employed by it.

In accordance with Article 140 of the Labor Code of the Russian Federation, upon termination of an employment contract, payment of all amounts due to the employee from the employer is made on the day of the employee’s dismissal. If the employee was absent on the day of dismissal, then payments must be received by him no later than the next day. In the event of a dispute about the amount of the amount due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the above period.

Termination of an employment contract before the expiration of the notice period

With the written consent of the employee, the employer may terminate the employment contract with him before the expiration of the two-month notice period. This is possible when the employer pays him additional compensation. Its size is calculated from the employee’s average earnings in accordance with the time until the end of the notice period. (Part 3 of Article 180 of the Labor Code of the Russian Federation).

Issue a work book and personal card

The work books of the organization's employees are filled out in accordance with the Rules for maintaining and storing work books, approved by Decree of the Government of the Russian Federation No. 225 of April 16, 2003 and the Instructions for filling out work books (Appendix No. 1 to the Resolution of the Ministry of Labor of Russia of October 10, 2003 No. 69). The work book is issued to the employee on the day of termination of the employment contract.

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

Termination of an employment contract is formalized by order (instruction) of the employer. Usually a unified form is used, which is approved.

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

According to general rules, the day of termination of an employment contract is always the last day of work of the employee, with the exception of cases where the employee did not actually work, but retained his place of work.

On the day of termination of the employment contract, the employer is obliged to:

• issue a work book to the employee (if the employee is not at work on the day of dismissal, he is sent a notice of the need to pick up the work book or agree to have it sent by mail);
• make a settlement with it in accordance with;
• upon written request of the employee, issue certified copies of documents related to work.

An entry in the work book about the basis and reason for 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 dispute among HR specialists regarding which wording to use: “the employee is fired,” “the employment contract is terminated,” or “the employment contract is terminated”? The Labor Code does not give a clear answer to this question, so employers often choose the wording at their own discretion.

Grounds for dismissing an employee

1. Dismissal during the probationary period

The establishment of a probationary period when hiring is regulated by Art. 70 TK. It provides a list of employees for whom a probationary period is not established:

• persons elected through a competition to fill the relevant position, conducted in the manner established 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 in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
• persons elected to an elective position for paid work;
• persons invited to work by way of transfer from another employer as agreed between the employers;
• persons concluding an employment contract for a period of up to two months;
• to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.

The probationary 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 separate structural divisions of organizations - six months, unless otherwise established by federal law.

During the probationary period, HR officers must record any deviations in the work of the new employee using memos and reports. When the probationary period ends and the employer evaluates the newcomer’s performance as unsatisfactory, he must document the validity of his decision.

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

If an employee refuses to sign a notice, a corresponding act is drawn up, which records the fact that the employee has read the notice and refused to sign it. Based on the notification, order T-8 is issued to terminate the employment contract. If an employee refuses to sign an order, then at the bottom of the order the personnel officer writes by hand that the employee was familiar 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 has read the order.

An employee can also terminate an employment contract at his own request during a probationary period. To do this, he needs to submit an application, but he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TK, will be three calendar days. The dismissal itself is made on the basis of (termination of the employment contract at the initiative of the employee).

2. Dismissal at your own request

Which article of the Labor Code should you refer to: .

An employee has the right to terminate an employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement of the parties, this period may be reduced.

In cases where 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 this option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. Labor relations practice shows that there are many more reasons for reducing notice periods. For example, an illness that prevents the continuation of this work, provided there is an appropriate medical certificate; moving to another area ().

The list of valid reasons for dismissal on the day the application is submitted can be enshrined in the internal labor regulations of the organization or in the collective agreement.

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

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

• issue the employee with a work book;
• issue other work-related documents upon written request from the employee;
• make a settlement with him.

How to prepare documents?

When an employee has the right to reduce the notice period, he writes a dismissal date, which is binding on the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to benefits, but asks to be fired early. For example, he writes a statement on May 15, and asks to fire him on May 19. In this case, the employer can act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, then 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.

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

3. Dismissal by agreement of the parties

Which article of the Labor Code should you refer to: .

The basis for dismissal “by agreement of the parties” was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.” No matter how such a basis for dismissal is perceived, one must proceed, first of all, from the fact that the word “agreement” itself indicates a peaceful basis for termination of the employment relationship.

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

4. Dismissal due to expiration of the employment contract

Which article of the Labor Code should you refer to: .

The grounds on which a fixed-term employment contract is concluded are stated in. Most often - for the duration of the duties of an absent employee, who retains his 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 specified in the contract itself. Three days before this date, the employer is obliged to warn the employee about the expiration of the period by means of a notice.

Sometimes the expiration date of an employment contract cannot be established in advance; in this case, the contract does not indicate the expiration date, but a condition. In this case, there is no need to notify about the termination of the employment contract, since the very fact of the main employee returning to work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code states how to formalize a disciplinary sanction. The employer's action algorithm in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two working days). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. If there is or is no explanation, the employer makes a decision based on its 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 date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense.

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

If misconduct is proven, disciplinary action is taken. In case of “mild” violations, the employee is first reprimanded. At the same time, the order to apply a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The 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 prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until a violation of labor legislation is established.

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

Acts on the absence of an employee should first be drawn up daily, in case of long-term absence - as of the day of submission of the next time sheet.

Letters are sent to the employee asking for an explanation of the reasons for failure to appear (they must be sent by registered mail with a list of attachments).

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

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The labor legislation of the Russian Federation is drawn up on the principle that the priority is to protect the interests of the less protected party of labor relations, that is, employees. Therefore, the dismissal procedure, carried out at the request of the employer, must be followed exactly so as not to face a possible challenge to this decision and unpleasant sanctions.

Let's look at the legal grounds on which an employer has the right to fire an employee.

General requirements for dismissal articles of the Labor Code

With changes in the Labor Code of the Russian Federation, there is a tendency to increase the protection of employers from unscrupulous workers. Thus, in 1918, an employer could dismiss an employee for one of 4 reasons; in 1922, there were already 7 such reasons; in 1971, there were 14 dismissal clauses at the initiative of the employer; and in today’s edition of the Labor Code there are already 18 of them.

The main feature of the list of reasons for dismissing an employee from a position is his finiteness. This means that the dismissal order, as well as the employment contract, cannot contain a reason or article of dismissal other than one contained in the Labor Code. Even if the dismissal occurs by mutual consent.

EXCEPTIONS: special grounds for dismissal are provided for some positions:

• management level (clause 3 of article 278 of the Labor Code of the Russian Federation);
• personnel working for individual entrepreneurs (Article 307 of the Labor Code of the Russian Federation);
• hired workers performing home work (Article 312 of the Labor Code of the Russian Federation);
• employees of religious organizations (Article 347 of the Labor Code of the Russian Federation).

Classification of reasons for dismissal

The priority of the employer’s desire to dismiss an employee who is unwanted or for some reason not suitable for him is reflected in Art. 81 Labor Code of the Russian Federation. Dismissal during liquidation or reorganization of the company itself is provided for in Art. 180 Labor Code of the Russian Federation.

All reasons for terminating an employment relationship can be divided on various grounds.

1. To whom do they apply? Most of the points (clauses 1, 2, 3, 5, 6, 11, 12) of Art. 81 can be fairly applied to almost any category of personnel. Clauses 4, 7, 8, 9, 10, 13 determine the dismissal of special categories listed above in the exceptions. A separate list contains categories to which the employer’s initiative does not apply as a basis for forced dismissal. It can be:
   • any employees (including homeworkers and part-time workers), if they are temporarily disabled and this is documented, or are on any type of leave;
   • women preparing to go on maternity leave (they can only be fired upon liquidation of the company);
   • employees who have not yet turned 18 (they have the right to be dismissed only from a liquidating organization);
   • employees who have young (under 3 years old) children in their care (the reason for dismissing them may be the same liquidation of the company or a serious misconduct of such an employee with proven guilt);
   • single parents whose children have not yet turned 14 (the reasons for legal dismissal may be the same as for mothers of three-year-olds);
   • parents of disabled children (same exceptions);
   • employees of trade union bodies (they are allowed to be dismissed only due to layoffs, inadequacy of the position, or a recorded violation of their duties);
   • members of commissions for resolving labor disputes (you can dismiss if the employee is really guilty of misconduct, or if the relevant body has agreed).
2. Did the employee give a reason? On this basis, all dismissal clauses can be classified into:
   • caused by the guilty actions of the dismissed person;
   • unrelated to his possible guilt.

Specific dismissal articles of the Labor Code

Let's consider the reasons for dismissal at the initiative of the employer, set out in the articles applicable to most categories of personnel, dividing them into groups based on the actual guilt of the employee.

The decisive factor for dismissal is the presence of proven guilt

1. Clause 5 Art. 81 Labor Code of the Russian Federation speaks of a justified reason for getting rid of an employee if he has violated his job duties more than once, which is recorded by a disciplinary sanction. Simply put, the second reprimand is “goodbye.” Violations that can only be forgiven once include:
   • unjustified absence from work or workplace for less than 4 hours;
   • failure to fulfill duties due to changes in labor regulations;
   • evasion of mandatory medical examination, special training, and labor safety certification.
2. Clause 6. Art. 81 Labor Code of the Russian Federation allows dismissal for gross misconduct (once is enough):
   • absenteeism;
   • showing up at work drunk or intoxicated;
   • disclosure of secrets;
   • bad consequences of violating labor safety rules or the threat of their occurrence.
3. Clause 11 Art. 81 Labor Code of the Russian Federation speaks about the legality of dismissal for providing false documentation or knowingly false data during employment (this refers only to documents and information that are of decisive importance when applying for a job).

IMPORTANT! Each clause provides for compliance with specific conditions and a mandatory dismissal procedure for the employer.

An employee who is not at fault is fired

1. Clause 1 Art. 81 Labor Code of the Russian Federation- the most comprehensive, it applies to absolutely any categories of personnel. It provides for the termination of the existence of an organization or the activities of an individual entrepreneur-physical person.
2. Clause 2 art. 81 Labor Code of the Russian Federation allows the dismissal of “unlucky” employees who have been reduced in number or staff. The number indicates the required number of personnel that ensures the functioning of the enterprise, and the staff includes the number of managers, administration and some individual specialists. Dismissal may occur when technological processes are “redrawn” or changed.
3. Clause 3 art. 81 Labor Code of the Russian Federation allows you to legally terminate a contract with an employee who turns out to be unsuitable for his position (for objective reasons of health or the results of certification).

NOTE! Both in the case of a “guilty” reason and without the employee’s guilt, upon dismissal the employer is obliged to adhere to the regulations established by law.

To avoid all sorts of troubles associated with the dismissal initiative, we recommend that you follow the following practice-tested rules.

1. Accurately and strictly follow the dismissal procedure specific to each of the dismissal articles of the Labor Code of the Russian Federation:
   • comply with prior notice periods;
   • do not neglect written confirmation of the facts of misconduct;
   • take care in a timely manner about the employee’s signature on familiarization with all types of dismissal documentation, and in case of refusal to sign, on the relevant act;
   • pay on time and in full the funds due to the employee upon leaving;
   • promptly return his work book with records of dismissal made in accordance with the protocol.
2. If possible, use the wording “at your own request” when leaving. If the dismissed person committed an offense, such a reason indicated in the documents will not cast a shadow on his future reputation. For the employer, the advantage of this article is this. That it cannot be used to challenge the dismissal in court.
3. If it is important for the employer to document the employee’s guilt upon dismissal, he should strictly follow the letter of the Labor Code of the Russian Federation when registering the dismissal.
4. If we consider the judicial practice on challenging the grounds for termination of employment relations, the most problematic for the employer are the following articles of dismissal:
   • for disclosing secrets protected by law (clause B, clause 6, article 81 of the Labor Code);
   • for a decision made by a managerial employee without justification, which resulted in a loss, unlawful use or violation of the safety of assets (clause 9 of Article 81 of the Labor Code).

These grounds may be subject to ambiguity, making it easier for the employee to prove wrongful dismissal. This creates additional problems for the employer, since in the event of an ambiguous interpretation, the court usually gives preference to the “weaker” party, that is, the staff representative.