Why fire an employee? How to force an employee to quit voluntarily or by agreement

The relationship between employer and employee is not always good. There are situations when the only way to avoid conflict is to be fired. It can be initiated by both the employee and the employer.

In the first case, everything is quite simple. According to general rules, an employee writes a statement, works for 2 weeks and leaves the enterprise. Concerning dismissal of an employee at the initiative of the employer, there are many subtleties here. Later in the article we will try to deal with them.

Why can they get fired?

Reasons for dismissal of an employee at the initiative of the employer quite a bit of. Meanwhile, any action related to the termination of the contract must be justified and documented.

Main reasons for dismissal of an employee at the initiative of the employer it could be considered:

• Unsatisfactory certification results.
• Non-fulfillment by the employee of his duties properly, negligent It is worth saying that in this case, the dismissal of an employee at the initiative of the employer is allowed only after a number of measures have been completed. In particular, the employer is obliged to warn the employee about the inadmissibility of such behavior in writing, to apply other disciplinary sanctions. If all these measures do not bring results, then dismissal follows.
• The commission by an employee of actions that cause damage to the enterprise. This, in particular, is about the disclosure of information protected by law, theft, and so on. In all these cases, there must be evidence of the guilt of the employee.
• Doing something incompatible with the job. For example, dismissal threatens a teacher who humiliates the dignity of students.
• Appearance at the enterprise in a drunken state.
• Provision of knowingly forged documents when applying for a job.
• Liquidation of the enterprise (cessation of work of individual entrepreneurs), staff reduction.

If the organization changes the owner, then you can dismiss the accountant and director. The rest of the employees should stay at work, unless, of course, there are others grounds for dismissal. At the initiative of the employer with the employee the contract is terminated only in extreme cases. At the same time, in some situations, dismissal is a right, and in others it is an obligation of the employer.

Process Nuances

The Labor Code contains instructions for an employer who wants to part with an employee.

At dismissal of an employee at the initiative of the employer the latter is obliged to warn the employee in writing about upcoming events. The notice should reflect the reasons for making such a decision with references to the labor legislation.

The employee, in turn, can prevent dismissal. His actions will depend on the nature of the reasons why the contract is terminated with him. In many cases, in practice, the parties manage to resolve the conflict. In such situations, you can contact the labor inspectorate, whose representatives will assist in resolving the dispute. If it was not possible for the employer and employee to come to a consensus, it is better to terminate the contract.

Guilty misdemeanors

May be due to employee misconduct. The main violations include the following:

• Systematic tardiness, absenteeism.
• Refusal to comply with the rules of the order in the enterprise.
• Failure to comply with the requirement to undergo a medical examination, training in safety rules, evading certification, if these procedures are mandatory for the employee.
• Disclosure of information classified by law as a commercial, official or other secret.
• Violation of safety rules, if this caused serious consequences or the threat of their occurrence.

Certification

In the course of its passage, the compliance of the competence of the person with the position he occupies is determined. The law establishes the procedure for conducting an attestation test. The procedure includes:

• Approval of the Regulations on certification. It describes the conditions, the frequency of the procedure, the evaluation criteria, the composition of the commission, the rules for issuing the conclusion.
• Issuance of an order for certification. It should indicate the time and place of the event, information about the certified employees.
• Commission formation.
• Employee testing.
• Making a conclusion. In it, the commission formulates conclusions about the suitability of each employee.

If during the certification an insufficient qualification of an employee is revealed, the manager can send him for training or dismiss him. In any case, with a negative conclusion of the commission, a citizen cannot continue working in the same position.

Employee committing a crime

Dismissal of an employee at the initiative of the employer just because the employee is being harassed is not allowed. In Russia, there is a presumption of innocence. Until the guilt of a person is proved, he is considered not involved in the act. Even a citizen placed in custody continues to be registered in the state. However, it should be noted that during this period the employee is not at the enterprise and does not fulfill his duties. As a result, he does not receive any income.

In the event of an employee's conviction, the termination of the contract with him is carried out solely on the basis of a court decision in accordance with Article 81 of the Labor Code . Dismissal of an employee at the initiative of the employer in this case, it may be due to a loss of trust or the commission of an immoral act.

Medical contraindications

If they are available, the manager must either terminate the contract, or offer the employee another activity that he can carry out without harm to health. The relevant rules are fixed by the Labor Code of the Russian Federation.

Dismissal of an employee at the initiative of the employer in these cases, it is possible only after the manager has offered the employee all the vacancies available to him in the given area. The employer must offer positions in another territory, if it is provided for by the collective agreement or labor agreement.

The presence of contraindications must be confirmed by the conclusion of the medical commission. For employees of certain categories, passing a medical examination is mandatory. These include, for example, catering staff, teachers, health workers. It is during the examinations that possible contraindications are identified. If a citizen evades a mandatory medical examination, he may be fired.

Circumstances beyond the control of the parties

Termination of the contract may be due to the following reasons:

• Conscription into the army, implementation of activities related to the passage of alternative service.
• Restoration in the place occupied by an employee of a citizen previously dismissed, but reinstated in the state by decision of the labor inspectorate or court.
• End of the contract.
• The death of an employee or his recognition as missing.
• Extraordinary circumstances that create obstacles to the further implementation of labor activity.
• Lack of access to information constituting a secret protected by law.
• Recognition of the decision of the labor inspectorate or court on the reinstatement of a person at work as invalid.

Termination of the contract with a partner

Dismissal at the initiative of the employer of an employee who combines positions may be associated with the return to work of the main employee. For example, a citizen was on long-term treatment or on a business trip.

The procedure for dismissal of an employee at the initiative of the employer in such cases is similar to the rules that apply to other general cases. The only nuance that should be mentioned concerns making an entry in the work book. If the combination took place at different enterprises, then the information in this document is indicated by an employee of the personnel department of the enterprise, which is the main place of work of the person.

Step-by-step instructions for dismissing an employee at the initiative of the employer

The stages of the procedure may be adjusted depending on the circumstances leading to the termination of the contract. In case of violation by the employer, step-by-step instructions for dismissing an employee at the initiative of the employer includes:

• Fixing information about the violation committed.
• Clarification of circumstances.
• Application of measures.

At each stage, relevant documents are drawn up. It must be said that, in accordance with the Labor Code, the dismissal of an employee at the initiative of the employer is allowed no later than 6 months. from the date the employee committed the misconduct.

Fixing a violation

If it is revealed that an employee has committed an unlawful act, it is advisable to immediately form a commission that will study all the circumstances. You can fix the violation in different ways. Most often this is done by composing:

• Act of infringement. This document must be drawn up in the presence of at least 2 witnesses.
• Reporting note. It can be written by a colleague or immediate supervisor of the employee.
• Commission conclusions. As a rule, this option is used for serious violations.

Familiarization of the employee with documents

When the commission confirms the guilt of the employee, one copy of the conclusion is provided to him for review. At the same time, he, having read the contents of the document, must sign. The employee has the right to refuse this. In this case, an act is drawn up.

After reviewing the claims, the employee is given 2 days to respond. He needs, in other words, to write an explanatory note. The employee may refuse to explain his actions. Then you also need to draw up an act. In practice, in such cases, as a rule, dismissal of an employee. At the initiative of the employer a special commission may be convened, which includes representatives of the labor inspectorate and the trade union. At a joint meeting, they decide on the situation that has arisen.

If after 2 days no explanation has been received from the employee, the employer has the right to terminate the contract with the employee unilaterally.

Order

Only on its basis occurs, according to Labor Code of the Russian Federation, dismissal of an employee. At the initiative of the employer Whether it happens of its own accord, it doesn't matter. The termination of the contract is always preceded by the issuance of an order.

The corresponding order is issued after the manager has studied all the circumstances and materials collected during the audit. It is advisable to attach copies of documents related to the incident to the order.

After signing, the dismissed employee must familiarize himself with the order against signature. Three days are allotted for this legislation. If the employee refuses to sign or is absent from the enterprise, an act is drawn up or a corresponding entry is made directly on the order.

Entering information into the work

The fact of dismissal is noted in the work book on the same day on which the order was issued. The entry must contain a link to a specific article and paragraph of the Labor Code. The employee receives the work book on the day the relevant mark is made.

It should be remembered that abbreviations are not allowed in the record.

If, for some reason, the employee cannot pick up the labor, he is sent a notification about the need to come to the enterprise or agree to send the document by mail.

Exceptions to the rules

The legislation provides guarantees for a number of categories of employees. They are not subject to general rules, including those governing the procedure layoffs at the initiative of the employer. employee You cannot be fired if:

• He has a young child (children) under the age of 1.5 years. This rule applies to both mothers and fathers.
• He alone brings up a child up to 14 years.
• He is dependent on a disabled minor.

You can't fire a pregnant woman either.

These prohibitions, however, do not apply to:

• Termination of business activities.
• Repeated violation by the employee of the rules established in the organization (improper performance of duties, absenteeism, etc.).
• Identification of the fact of theft.
• Disclosure of information constituting a secret (commercial, banking, etc.).
• Committing an immoral act.
• Providing upon hiring.

Dismissal of an employee at the initiative of the employer: compensation and mandatory payments

According to the norms, the employer on the day of termination of the contract must make a full calculation of the amounts due to the employee. These include:

• Salary for days worked.
• Supplement to salary
• Compensation for unused vacation.

In cases stipulated by law, severance pay is also paid.

If it is impossible to pay the funds due to the absence of a citizen at work, the due amounts must be issued no later than the next day after they submit a request for payment.

When the organization is liquidated, the employee receives severance pay. Its calculation is based on the average monthly earnings. The employee also receives compensation for the duration of the job search. It is equal to the average monthly salary for 2 months. In exceptional cases, an employee may retain earnings for the third month.

Somewhat different conditions are provided for the chief accountant, director and his deputy. In the event of a change in the owner of the organization, the new owner, upon dismissal of these employees, pays them compensation equal to the average monthly salary for 3 months.

If the contract is terminated due to or the presence of medical contraindications, the citizen receives compensation equal to two weeks' earnings.

The collective agreement may also provide for higher amounts of payments.

It must be said that when dismissal at the initiative of the employer of an employee of retirement age he is also entitled to all payments and compensation. Additionally, the head of the enterprise can encourage the employee for high professionalism.

Finally

At present, it is quite difficult for an employer to terminate a contract with an employee unilaterally. The rules established by law must be followed without fail.

It is worth saying that such a complex procedure operates not only in Russia. Similar rules, for example, are enshrined in the legislation of the Republic of Belarus. The dismissal of an employee at the initiative of the employer in Belarus is also carried out in several stages. In addition to the Labor Code, Decree No. 29 of 1999 is in force in this country, providing for additional measures aimed at improving labor relations and strengthening in enterprises and organizations.

You will need

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

Instruction

First you need to figure out how a dismissal can be issued in general. The wording, laws, articles are different, and there are nuances. So, you can be fired "by", "by agreement of the parties", "due to staff reduction", "due to 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 quit at will, the employer expects to get rid of you with little blood, that is, not to pay you what you are owed. "Dismissal of one's own free will" is a wording that suits all employers without exception. Still, they pay exactly as much as you work out when you quit. If the employee does not want to sign the application, he may be offered "dismissal under the article."

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

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

If you are fired due to a reduction in staff (clause 2 of article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer must give you advance notice of the termination, offer you another job, identify beneficiaries, report to the employment office, and pay you a severance pay of several salaries upon termination.

If you are about to liquidate the enterprise, you must also be warned about this no later than 2 months before the dismissal. You have every right to quit early, having received the 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 the employer. There is a written agreement that states when you will be fired and how much money 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 when changing the owner of the enterprise (Article 81, paragraph 4), if you are the general director, deputy or chief accountant. You may be fired for inconsistency with your position (Article 81, paragraph 3). Then they should assemble an attestation commission for you, which will come up with a test task for you. Even if you can't handle it, they can't fire you right away. You should be offered another position in this organization.

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

You may also be threatened with dismissal or being late under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is possible only if you did not submit any documents 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 for which you can be fired are "Theft and embezzlement" and "Loss of confidence." They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you are still fired, you have every right to continue the fight. Within a month of being fired, 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 did not come to work, be sure to confirm the validity of the reason for the absence.

2. Review your employment contract and job descriptions once again.

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

Useful advice

If you feel the clouds are gathering, document your every step and decision.
- Avoid disciplinary actions.
- Eliminate delays.

Sources:

• How to properly dismiss an employee?

Not a single employee is insured against dismissal, even an experienced, conscientious and skillful one. This can happen for a number of reasons. One way or another, you must know your rights and use them if the leader neglects the law.

The easiest option is if you yourself have already thought about whether to change your boring job. In this case, write a letter of resignation of your own free will, calmly finalize the prescribed two weeks, without conflicting with either the management or former (now) colleagues, and get your work book in your hands.

A more complicated situation: the boss suggested that you quit of your own free will, and you do not want to part with this job at all. Here you need to act taking into account all the circumstances. First of all, try to clearly understand why the manager decided that the organization no longer needs your services. Maybe the company is going through hard times now, there is a reduction in staff, and you are far from the only candidate? Then the logic of the leader is understandable: if a person is fired with the wording of a reduction in staff, then he should be paid the allowance provided for by law, and if of his own free will, then they should not. Politely but firmly refuse.

Remember that from now on you must be extremely careful not to give rise to dismissal for violation of labor discipline. Do not be late for work and do not leave it before the end of the working day. If you need to take time off, write statements in duplicate, date, sign and make sure that the manager not only makes a note “I do not mind”, but also signs. Keep the second copy for yourself. Try to conscientiously and fully fulfill your official duties.

If, despite this, nevertheless, an order was issued for your dismissal with the wording “For a single gross violation of labor discipline” or “For systematic violations of labor discipline”, do not despair. By law, within a month from the date of the dismissal order, you have the right to file a claim with the court at the place of registration of the defendant (that is, your former organization). Demand to be reinstated in the previous position and recover compensation for forced absenteeism. Attach copies of all necessary documents to the statement of claim: orders for the imposition of penalties, a work book and an order for your dismissal. If you are not experienced in jurisprudence, be sure to use the help of a qualified lawyer, moreover, specializing specifically in labor dispute cases.

Related videos

How to fire an employee is a question that is always relevant for the personnel department, along with the admission of new staff, however, there are some nuances in this matter. The most serious is the topic of painless termination of the employment contract for both parties. Unfortunately, this does not always work out - a person can sue the company or go to competitors and deliberately start harming your organization.

How employees are fired: reasons and options

According to the law, there are three types of dismissal:

1. at the initiative of the employer;
2. at the initiative of the employee;
3. by agreement of the parties.

The first type is associated with the dismissal of an employee unilaterally for non-compliance with certain company rules. It can be absenteeism allowed on a permanent basis. Or such a procedure is carried out in case of liquidation of the enterprise or reduction of staff.

If we talk about the second option, in this case, the employee is required to write a letter of resignation of his own free will. Moreover, the employer cannot refuse to satisfy him.

The third type is suitable if the manager is dissatisfied with the hired employee, but he refuses to leave the company, while not giving specific reasons for dismissal.

Option 1.Voluntary dismissal

This type is the most commonly used grounds for terminating activities in a particular company. There are only two steps here:

1. The employee submits a resignation letter with a date.
2. The head must satisfy this application.

Difficulties, if it is necessary to dismiss an employee of one's own free will, are very infrequent. Perhaps the only one is the need for working out, when within two weeks from the date of application, a person continues to perform his functions in the company.

Some groups of employees are given a shorter period of notice to leave. It is important to always remember this, since the unexpected dismissal of such an employee cannot serve as an excuse for the company when it does not have time to calculate and return the work book to the dismissed employee.

Option 2.Dismissal by agreement of the parties

Here, the termination of the employment contract takes a minimum of time and is simple. Which employees get fired this way? The law allows termination of an employment contract by agreement of the parties, even with those who are on vacation or on sick leave. To do this, the employee submits an application to the manager, and if the employer takes the initiative, he sends the subordinate a proposal to terminate the contract. When the parties have agreed, an agreement is prepared, an order for dismissal is issued, and the work book records under which article the employee was fired, that is, paragraph 1 of Art. 77 of the Labor Code of the Russian Federation.

Option 3.Dismissal at the initiative of the employer

The reasons in this case may be different. So, this may be an attempt by the management to reduce the costs of the company, layoffs, liquidation of the company, inconsistency of the person with the position held, or the sale of the company to a new owner. However, most often this option is used in violation of discipline: when there is absenteeism, the employee comes to the company in a state of intoxication, appears in the office later than expected, etc. Since it is now clear why an employee can be fired, let's talk about how to do it without mistakes.

Option 4. Dismissal due to violation of labor discipline

Before you decide to punish an employee under this item, check whether the regime, place of work, etc. were clearly indicated in his employment contract. It may seem incredible, but a number of companies do not include the place of work in the contract, because their activities, that is, their , requires presence at several sites. And they will not be able to be included in the contract already when hiring. How to dismiss an employee for absenteeism if his contract is drawn up in this way? This is impossible, because the papers do not fix a specific place in which a person must be. But if the conditions are defined, if they are not observed, the employer can impose disciplinary punishment on the subordinate. Of course, it is possible to fire a person for just one violation, but then it should be quite serious.

The reason for such a tough decision of the manager may be the appearance at work in a state of intoxication (or in a state of drug intoxication), theft, embezzlement, damage (accidental / intentional) of someone else's property, disclosure of commercial or state secrets. You can also be fired for absenteeism or absence from the workplace for four hours. But before doing this, we advise you to make sure that there is no certificate of incapacity for work. For minor violations, let's say being late, disciplinary liability is allowed. In this situation, the employer does the following:

• finds wrongdoing(this is done on time in accordance with Article 193 of the Labor Code of the Russian Federation);
• fixes this violation;
• receives from the employee a handwritten statement of the reasons for the misconduct- the employee must provide an explanatory note on this fact;
• issues a disciplinary order(announcement of a warning, remark, reprimand);
• bring this information to the attention of the employee.

In case of repeated non-compliance with discipline, a severe reprimand is usually announced, coupled with deprivation of the bonus, and only after the third offense can the manager decide how to dismiss the employee.

Option 5. Dismissal during downsizing

The law clearly fixes the procedure and rules for terminating an employment contract in such a situation. So, if one of the equivalent positions is reduced, you must leave a more qualified employee (provided that the people working here have an equal social status). With the same skill level, but different life circumstances, it is forbidden to dismiss: single mothers, the only breadwinner, a person injured at the workplace, disabled people, veterans of the Second World War, labor and military operations, women with children under 3 years old, pregnant women, participants in the resolution of collective disputes, employees undergoing on-the-job training. Remember, if a person is fired due to a reduction in staff, he must be warned two months in advance and, if possible, offered a different position. If he agrees, an internal transfer is made, if not, you need to receive an application from him with a request to release him from his post due to a reduction in staff. After that, the employee leaves the company, having received all the necessary payments to the dismissed employee.

Option 6. Dismissal during the liquidation of the enterprise

Obviously, if the firm ceases to exist, all employees should be paid. How to fire employees in such a situation? It is necessary to warn all personnel in writing two months in advance in accordance with Art. 180 (part 2) of the Labor Code of the Russian Federation. This rule applies to the main workers, part-time workers. The notification should be received by each of your subordinates, and the second copy with the signature of the dismissed person should be attached to the order. Two months later, the administration of the organization prepares an order for the dismissal of personnel in the T-8 form, pays severance pay, compensation for unused vacation, and wages for hours worked. The calculation is carried out on the last working day, an entry is made in the work book. We also note that people with whom the employment contract was terminated due to the liquidation of the company have the right to expect the payment of average monthly earnings while looking for a new job, but for a maximum of three months. This rule does not affect part-time workers, seasonal staff, as well as those who operate under a fixed-term employment contract (for a period of up to two months).

Option 7. Inconsistency with the position held

This issue can only be resolved by the certification committee of the organization. Imagine that a performance appraisal has been carried out to test the aptitude and qualifications of the staff, and one of the employees received a bad mark. Then he may be offered a different position. If the specialist does not agree, the manager has the opportunity to refuse his services, since the employee does not correspond to the position held. For this, the manager has a fixed period of time after the certification, which is 2 months. Further, in the order, the work book, the wording “due to the inconsistency of the position held and the refusal to transfer to another position” is put.

When can you fire an employee?

It will not be possible to fire an employee while he is on vacation, whatever it may be: annual paid, child care, educational or unpaid. Violation of this rule is permissible only upon liquidation of the company. In addition, you cannot fire a person who is on sick leave. This applies to essential staff, part-time workers, and even home workers.

There are also some groups of people whose dismissal, in principle, cannot be initiated by the employer, or it will be rather difficult.

How to fire an employee: procedure

If you want to avoid unpleasant consequences, it is important to understand how to competently fire an employee in the legal field. A preliminary consultation with a lawyer will help you here, it will be especially useful when your case is associated with individual traits. It is very important to strictly follow the sequence of actions:

1. Determining the legal grounds for dismissing a person from office. Suitable as specific reasons, so you can fire an employee of your own free will.
2. A personal conversation with the employee or a written warning about the termination of the contract.
3. Collection of necessary documents(including confirming the legitimacy of the action).
4. Drawing up a dismissal order in the form of T-8 or T-8a.

5. Entry in the workbook.

It is important to use correct wording in the work book. Therefore, we advise you to start a cheat sheet in order to avoid corrections in the document.

1. Payment of compensation.

Compensation for a dismissed employee is mandatory and is issued regardless of the article of the Labor Code under which the employee leaves. This also applies to dismissal from office for absenteeism, ignoring work duties and other actions containing guilt. Compensation is not allowed only to persons hired under civil law contracts.

This payment is issued for those vacation days that the employee did not have time to take off. Also, with the written consent of the person, he may be granted exemption from work for all unused days of rest, replacing material compensation to the dismissed employee. However, when the outgoing person was already on vacation in advance, the KNO is withheld in favor of the enterprise.

Expert opinion

How to reduce the amount of compensation upon dismissal

Elena Kozhemyakina,

Managing Partner of BLS, Moscow

I think many have heard of the "golden parachutes", that is, severance pay, the amount of which seriously exceeds the minimum guaranteed by the state. Only specialists holding certain positions (general, commercial, financial director, development or advertising director, chief accountant, etc.) are entitled to receive this kind of compensation upon dismissal initiated by the employer. The amount of the compensation payment is initially fixed by the employment contract, in other words, it is quite difficult to challenge it. The task of the personnel officer preparing the contract is to avoid inconsistency with local regulations and other company documents.

How can you reduce the amount of payments to a laid-off employee? Of course, top managers who have spent a lot of time on the company have the moral right to demand serious compensation. They can ask for an amount equal to two years' salary. But the manager rarely agrees to spend such a significant amount of money. Therefore, when going to negotiations and thinking about how to fire an employee, I advise you to prepare properly. If it is impossible to agree, there is always a second option for the development of events, familiarize the interlocutor with it. This is a dismissal to reduce staff, for dereliction of duty or for committing guilty acts, if the latter have been identified.

Any negotiations will be successful if the meeting is prepared and held competently. For this reason, the head of the company should not transfer the discussion of the terms of dismissal to the personnel specialist. I advise you to beware of classic mistakes: do not make accusations without argument, do not press, avoid quick emotional conclusions. Remember, if the interlocutors do not want to listen, hear each other, negotiations cannot lead to success.

How to fire an employee and avoid problems with the law

Termination of the contract by the decision of the employer is legal and justified if the following rules are met:

1. The Labor Code does fix the chosen conditions for dismissal;
2. all necessary procedures are strictly observed: obtaining explanations, delivery of notices, coordination with the trade union body, etc.

The absence or failure to comply with one of these provisions will cause the recognition of the illegality of dismissal in the event of a dispute, and even be the basis for the employee to continue working in this company.

If the staff is being reduced or the company is being liquidated, it is required to announce the planned dismissal at least two months in advance, since it is important to competently dismiss the employee. When serving a notice, it is necessary to obtain the signature of the employee, if the latter is absent from the workplace for good reasons, the warning is sent by registered mail to the place of residence.

However, in a situation where an employee avoids studying this document, its text is read aloud and an act of refusal to read is drawn up. Further, it is certified by the signatures of those who notified the specialist.

If low qualifications do not allow a person to work in his position, release is permissible when this fact is established by the certification commission, and only taking into account the opinion of the trade union organization.

Repeated failure to perform official duties makes it possible to dismiss an employee at the initiative of the employer, but this requires documented facts of remarks or reprimands previously announced to the employee. That is, it is required to provide memorandums, explanatory notes, complaints, etc.

Such dismissal refers to disciplinary sanctions, therefore, it can occur in accordance with the norms fixed by the Labor Code of the Russian Federation (Articles 192 and 193). That is, the severity of the misconduct is considered, and the perpetrator provides an explanation in writing within two working days.

A decision on how to fire an employee cannot be made before the end of the period allotted for the person to present his version of what happened. Refusal to provide an explanation, as well as its absence without a reason, must be formalized by an act.

Note that it is impossible to apply a disciplinary sanction, provided that more than a month has passed since the discovery of the misconduct, or the violation was committed more than six months ago.

If gross deviation from official duties, such as absenteeism, disclosure of official secrets, violation of labor protection rules, being in a state of intoxication at the workplace, was committed once, dismissal cannot be carried out without taking into account the procedures required by the Labor Code of the Russian Federation (Articles 192 and 193 ).

If, in your opinion, as a manager, there has been theft of someone else's property, forgery of the documents provided, you need to obtain a court decision or a verdict or a decision of an administrative body that established these circumstances. Since you do not have the right to dismiss an employee, having independently revealed such a fact.

That is, for a manager who decides to terminate the contract with a negligent employee, it is important to document the established violation, assess the severity of the act, so that it corresponds to the punishment in the form of dismissal, it is necessary to comply with the deadlines.

The state labor inspector can check the legality of the dismissal at the request of the employee himself, at the request of the prosecutor, or during a scheduled examination. In addition, the removal from office is controlled by the prosecutor under prosecutorial supervision and by the court in the event of a civil case being considered on a claim to challenge this fact.

If it is revealed that the deprivation of a person's work was illegal, he will be reinstated, and the company will also have to pay for absenteeism that occurred through no fault of the employee. The court may award compensation for non-pecuniary damage in favor of the dismissed person.

It is also important to understand that the Code of Administrative Offenses of the Russian Federation fixes that detected inconsistencies with the rules can become a reason for imposing a penalty on the head and on the company.

The director is subject to a fine in the range of 1-5 thousand rubles, and the company - 30-50 thousand rubles. In case of repeated violations, the head, in addition to the application of such sanctions, may be deprived of the right to hold a post for a period of one to three years.

Expert opinion

Consequences of dismissal without reason

Alexander Zhbankov,

lawyer, European Law Office

If, after you decide to dismiss an employee, all the procedures recorded in the Labor Code of the Russian Federation were not followed, the citizen has the right to apply to the court and, having won, will be reinstated. That is, it is very important for the employer, refusing to continue cooperation with a specialist, to prepare evidence of a violation of labor duties.

When a dismissed person decides to challenge the sanctions imposed on him in court, the manager must prove the fact of committing a disciplinary offense, while justifying the type of penalty chosen. It is important for the court to make sure that the employer took into account the severity of the subordinate’s guilt and its circumstances, as well as the previously noted behavior, the person’s attitude to his own activities. If the court finds out that the violation actually took place, but the dismissal was carried out without taking into account the above provisions, the claim for reinstatement may be satisfied.

If you have a conflict with the person you want to fire, prepare evidence of your innocence in advance, do not wait for going to court. Collect all memos, memos to support the facts of the employee's inappropriate behavior.

According to Art. 237 of the Labor Code of the Russian Federation, moral damage caused by illegal actions, inaction of the head, must be compensated to the employee in financial terms in the amount determined by agreement of the parties to the TD. If a dispute arises, the fact of causing moral damage and the amount of its compensation are determined by the court, regardless of the compensated property damage.

"Guilty" grounds for termination of the employment contract at the initiative of the employer are provided for in Art. 81 of the Labor Code of the Russian Federation.

How to dismiss an employee by law: examples of judicial practice

Example 1Dismissal due to unsatisfactory outcome of the probationary period

The State Labor Inspectorate in the Krasnodar Territory carried out an inspection on the fact of violation of the procedure for dismissing a specialist after a probationary period from Stroy-Investment LLC (Article 71 of the Labor Code of the Russian Federation). In accordance with the results of the audit, the employment contract was terminated on October 28, 2011, but the plaintiff was not notified of this in writing no later than 3 days in advance. Such a document was prepared directly on the day of termination of the contract. It turns out that the employer did not want to comply with the deadlines for the dismissal procedure specified in the legislation (Article 71 of the Labor Code of the Russian Federation). It is also important that this warning had a note that it was not given to the employee, since the latter was absent from the workplace from 10/29/2011 to 11/01/2011. But as the documents showed, it was possible to dismiss the employee even before this deadline, on 10/28/2011. In other words, from October 29, 2011, he was no longer among the company's staff. Also, the employer did not take the exhaustive measures necessary to notify the plaintiff of the termination of the TD, that is, he did not send a warning about this fact by registered mail with a notification or a telegram. The above violations made it possible to cancel the dismissal order. In addition, the company must reimburse the employee for earnings lost by him due to his unlawful deprivation of the opportunity to work. Also, the head was presented with a binding order to eliminate the violations committed.

Example 2 Dismissal in connection with the refusal of the employee to continue activities due to changes in the terms of the employment contract, determined by the parties

The Volzhsky District Court reinstated the plaintiff as an accountant at 222 LLC after she was dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court found that the specialist had been performing the duties of an accountant in the organization since August 29, 2006 with a salary of 15,000 rubles per month and a monthly bonus of 3,000 rubles. On March 20, 2008, she was notified that her salary had been reduced to 10,000 rubles. due to changes in organizational working conditions and a reduction in the amount of work. However, the employer was unable to provide evidence capable of confirming that the new circumstances were caused by changes in the organizational and technological working conditions. The latter include changes in technology and production technology, structural reorganization of the enterprise, as well as other reasons. We note that, among other things, while the employer tried to dismiss the employee without his desire, he did not offer the specialist another job in writing, that is, he violated Part 3 of Art. 74 of the Labor Code of the Russian Federation.

Example 3Reducing the number or staff of employees

The Soviet District Court reinstated the plaintiff at work, since when she was dismissed from office, the employer did not comply with the requirements of Part 6 of Art. 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer (except for the liquidation of the company) during the period of his temporary incapacity for work and being on vacation. The court found out that the laboratory where the plaintiff worked was closed by order of the rector. The employee applied with a written application to be provided with unused vacation days with subsequent dismissal in accordance with paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. She was granted unused vacation days from 11/03/2007 to 01/16/2008 with further dismissal due to staff reduction, but she was dismissed from work by order of 11/05/2008 under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation from 16.01.2008. In addition, it was established that during the vacation the plaintiff was ill (from 01/09/2008 to 01/24/2008). On January 13, 2008, she informed the manager about her incapacity for work and the right to extend her leave in accordance with Art. 124 of the Labor Code of the Russian Federation. However, this was not done, and the employee turned out to be illegally dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation during vacation and temporary disability, that is, in violation of Part 6 of Art. 81 of the Labor Code of the Russian Federation.

Example 4Dismissal for non-compliance

The employee filed a lawsuit against the Municipal Unitary Enterprise Housing and Public Utilities for reinstatement and payment for absenteeism, which took place through no fault of his own. The employee held the position of an electrician and was fired under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation for inconsistency with the position held. The reason for this step of the employer was the lack of documents allowing this person to hold the post of electrician on duty.

The court found out that before hiring, the employee was checked for knowledge of the Labor Code of the Russian Federation, PB electrical installations, traffic rules, PPB 01-03, PORM, as a result of which he was assigned the III electrical safety group, a document confirming this was issued. The employer neglected the procedure for dismissal: he did not create an attestation commission, he did not conduct an attestation. As a result, he did not have in his hands a confirmation issued by the commission that the plaintiff did not correspond to the position he held. The employer did not offer the citizen in writing the vacancies available at this enterprise, as he decided to simply dismiss the employee, although this is considered a prerequisite in this case. The court concluded that the dismissal from office was illegal, and the claims were fully satisfied (decision of the Uletovsky District Court of the Trans-Baikal Territory dated April 19, 2011 in case No. 2-79 / 2011).

Example 5Repeated failure to perform duties

The Soviet District Court found it illegal to dismiss an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. It was found that the management reprimanded him for violating industrial discipline. But the plaintiff challenged the order to impose a reprimand, and the magistrate found it illegal. However, the plaintiff was dismissed due to the employee's repeated failure to perform his job duties without good reason. Since the previously applied disciplinary sanction was declared illegal, there was no repetition factor, which means that there were no grounds for dismissing an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Example 6Termination of relations with the head

The Samara District Court considered the case on the reinstatement of a dismissed employee as director. The woman contested her dismissal from office, the reason for which was inefficient work on the basis of paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation. It was found out that the parties signed an employment contract for a period of one year, which provided for the possibility of early termination under Art. 81 of the Labor Code of the Russian Federation on additional grounds for dismissal, including failure to comply with certain provisions that affect the financial performance of the company. After 54 days of work, the plaintiff was fired. The reason was the act of a comprehensive documentary audit and the balance sheet, which became evidence of a deterioration in the financial and other indicators of the enterprise. The court pointed out that improper fulfillment of the conditions of the TD during its validity, and not in the previous period, can be considered grounds for dismissal. The defendant was unable to provide evidence of a violation by the employee of the provisions of the contract within the specified period, in connection with which she was reinstated at work in her previous position. Also, in her favor, a salary was collected for the time of forced absenteeism.

How to fire an employee and not disturb his psyche

Dismissal is an unpleasant business for both the management and the employee. A person who was asked to leave the enterprise always perceives it as stress, as a result, he has negative emotions, even anger, aggression. If, after the company has decided to fire an employee, the latter believes that he was deprived of his job unfairly, his actions can lead to serious problems for the company.

A dismissed employee is able to take revenge: transfer confidential information to other market representatives (customer databases or data on a product that has not yet been released), disclose the financial condition of the company to the tax service, or sue his former manager for unfair dismissal. All these actions will cause difficulties for the company caused by a damaged reputation, which will take a long time to restore. But let's say a dismissed specialist worked with finances and transferred information to the relevant authorities, then more serious problems may arise.

Management mistakes during dismissal can also affect the rest of the team: people will have a fear that they can be treated no better. This kind of atmosphere will negatively affect the productivity of work, motivation will decrease, and there may be a desire to change the place of activity.

To avoid all these troubles, every manager should use psychological rules of dismissal employee. The task of the manager when displacing a subordinate is to carry out this procedure with minimal discomfort for the employee. It is important to reduce stress and other negative emotions. Any manager who informs an employee that he will have to leave the company needs to learn how to use the correct dismissal procedure so that the person does not become angry and decide to harm the company.

It may seem strange, but men are much more sensitive than women to dismissal and are more prone to subsequent revenge. This is due to the fact that the stronger sex is initially set up for career growth, which means that its representatives have more expectations of social success. Women, on the other hand, show themselves to be more flexible in this matter, they are easier to adapt to new conditions. Therefore, once you have decided to fire a male employee, it is important to carefully prepare for the conversation and use a more forgiving approach.

The manager can give the subordinate certain tasks for a fixed period. If he does not cope with this work, or only part of it, it will be clear to him that this fact may be a reason for dismissal. That is, the employee will be mentally prepared for an unpleasant conversation with management, and the very loss of a position will no longer be a shock to him.

True, here the reason for the nervous state of the employee may be the fact that the person is constantly waiting for the management to demand him in the near future. But leaving the company will turn into a variant of getting rid of continuous psychological stress. True, it is difficult to say what kind of reaction awaits you after you decide to fire an employee. For this reason, it is very important that the manager record on paper all the tasks given to the employee and the progress of their implementation. This document will be useful in case of litigation.

There is another option with which you will be able to prepare a person for dismissal: you need to organize a certification of professionalism and report on receiving an unsatisfactory grade.

When dismissed from work, an important role is played by building a conversation with an employee who is being fired. Psychology offers a very famous principle of conversation, which is called "positive - negative - positive." He is most suitable for such a difficult dialogue. The meaning here is the following: it is better to start a conversation, talking about the positive qualities of the interlocutor (and they definitely should be), after that it is necessary to explain the reason for his dismissal and, in the end, once again emphasize the dignity of the dismissed employee. Now let's discuss this technique in more detail.

First part conversation is positive. Its main goal is to create the most comfortable atmosphere of communication, free from psychological stress. You must make it clear to the interlocutor that you respect him as an employee and as a person.

The second part conversation is negative. Of course, this stage is more difficult than the others, because it is here that you must report the fact of dismissal. All people react to it differently. If a person is emotional, he is able to lose his temper, start screaming, shower accusations on you, women may cry.

Many managers make the mistake of suppressing the outburst of the interlocutor's emotions. Let him speak. Do not allow yourself to additionally point out to the employee about unprofessionalism, laziness, non-compliance with the working regime, or his other mistakes. So you will only spoil the attitude towards you even more, as a result, the person will be ready for the start of hostilities. But you also don’t need to console and sympathize, since it was you who decided to fire the employee. Be polite and calm.

Suppose the interlocutor expressed everything that was boiling over. Now we can return to the constructive dialogue. Remember that the emotional outbursts of a fired team member are quite capable of benefiting the firm. After all, there are usually things that they don’t tell you in person, are silent or try to embellish. In addition, the manager does not always have the ability to control all stages of the work of the staff, especially if the company is large. Therefore, listen carefully to what the dismissed person says, there is a chance that he will point out weaknesses in the organization's activities.

It is important to understand that people who flare up quickly calm down just as quickly. If you let them scream, after a few days they will stop thinking about this unpleasant episode and will make further plans.

With unflappable and restrained workers, everything is much more complicated. They will not raise their voice at you, but will calmly accept the dismissal. It would seem that this pleases. But in fact, it only seems to you that the employee does not experience emotions. Internally, he experiences the loss of a job much more strongly. It happens that such people accumulate negativity for a long time and eventually begin to take revenge on the offender. What can be done to avoid the negative consequences of such behavior? It is incredibly important for such workers to adapt and get used to new conditions. So, as soon as you decide to fire an employee, you need to inform him about it, that is, at least two to three weeks in advance. So you give him time to get used to the idea that he has to leave his workplace. Such a step of yours will provide an opportunity to reduce the level of stress and negative consequences after direct dismissal.

The third part conversation is positive. So, you have informed the specialist about the dismissal, now it is important to allow him to digest the information and come to his senses. But don't end the conversation on that note. Be sure to point out the strengths of the interlocutor, assure him that his career will definitely be brilliant in the new company. Tell me about his severance pay.

Touching on the topic of the reasons for dismissal, talk about external circumstances, and not about the qualities of a person. You can report that the company is not having the best of times, so you have to reduce staff. Or at this stage you need people with other knowledge and skills. But emphasize that your interlocutor is an excellent specialist in his field. There are managers who like a different method. Thinking about how to politely dismiss an employee, they explain their decision by saying that the person is too good for the company, his knowledge is much more extensive than is required for this position. The effectiveness of this approach is debatable, but we can definitely say that in this way you will be able to amuse the ego of the dismissed person.

But what to do if you have nothing to praise the interlocutor for? Use the same positive-negative-positive method, but in a slightly different way. When you need to talk about the good, emphasize not the professional qualities, but the characteristics of the employee as a person.

Let's consider a conditional example of such a leader's speech: “Dear Ivan Ivanovich! You are decent, kind, and I respect you very much as a person. But if you do not improve your efficiency in the near future, we will have to say goodbye to you. I give you two weeks to improve your performance. If during this period you manage to achieve higher quality, you will continue to work with us. Otherwise, you will have to start looking elsewhere. In the meantime, I will always be happy to help and advise you if any difficulties arise in the process of work. You can contact me at any time."

Now you need to keep the promise and support the employee in some situations. If, after the period named to you, no changes have occurred, then you will do as planned - you will be able to dismiss the employee.

Expert opinion

What to do if the dismissed employees take revenge on the company

Viktor Nechiporenko,

General Director of LLC "Information Service "Red Telephone", Moscow

• Spreading information that damages the company's reputation. Through the press, the Internet, laid-off workers can tell that things are going extremely badly for you. As soon as you see this kind of publication, immediately give an official refutation (it is better to back it up with arguments, facts, figures).
• Compromise of leading experts before the CEO. Always check the information received from former employees, there is no need to immediately make decisions based on them. For you, a complaint is neither true nor false until you get the exact facts and gather all the information on the issue. The data distributor is waiting for your emotional perception of the news.
• Attracting colleagues to another company. We have come across such situations. A retired employee opened a firm and took away former colleagues. The possibility of such transitions negatively affects the climate in the team, working conditions, and the level of interest of specialists in work. You are required to organize the activities of the staff in such a way that no area depends on only one person. It is useful to have a ready-made plan of action on hand in case half of the team leaves at once.
• Theft of customer database. You need to build confidence in your customers that more than one person in the company can help them. I advise you to divide all interaction with the client into three or four successive stages so that different people are responsible for them, as this is important if you fire one of the employees. That is, the customer will communicate with several representatives of the company.
• Disclosure of commercial information. Through the dismissed information about orders, suppliers, company plans can leak to competitors. A number of firms sign agreements under which the employee is responsible for the disclosure of trade secrets. In fact, this is not the best option, because you will have to prove that it was this person who disclosed the data. The best protection is to limit the amount of information available to each employee.
• Damage to software, introduction of viruses. To protect your software, get anti-virus programs and back up all your important files. Information that employees often use in the process of work is best duplicated on paper. One day, our company had to work for several days without electricity, that is, all computers were turned off. But we were ready: operators answered customer questions using pre-made printouts from the database with a minimum amount of information. Most customers then did not notice problems in the work.
• Website hacker attack. Often, such an attack is arranged by the people responsible for the development and support of the portal. If your site is run by private individuals, choose them in such a way that they bear increased responsibility to you. Sign a contract with an organization that will be responsible for any failures.
• Sabotage. There is only one rule here: always be prepared for such behavior as soon as you decide to fire an employee. When our communication line was damaged, we decided to mask it by running additional false lines. The pests did not stop cutting the wires, but they could no longer find the real one.
• Initiation of inspections by the relevant authorities. Supervisory authorities usually detect a number of violations. The solution is simple: follow the accuracy of paperwork and changes in legislation.
• Complaints, lawsuits. Such issues should be handled by a lawyer. Well, if he can solve them out of court.

Expert opinion

Rules for building a conversation upon dismissal

Marina Melia,

CEO of MM-Class, Moscow; professor of psychology

Rule 1Nothing personal

Dismissal and hiring are normal processes in professional life. No firm provides its staff with lifetime employment, and few people want to devote their entire lives to a particular company. Immediately after hiring a person, the manager must imagine how to fire an employee, for example, in 2017, from a legal and psychological point of view. This mindset will make it easier to approach the conversation about dismissal.

Rule 2Away with doubt

Before you start a difficult conversation, think carefully about the current situation, make sure that this is justified and the only possible way out. Get rid of doubts and clearly articulate why you made this decision.

Rule 3Ready for any reaction

Think ahead of time about the person's first reaction. If your specialist is so able to control his emotions that it is not clear whether he heard you, ask additional questions. Another is capable of showing aggression - remain calm, be emphatically businesslike, do not argue. Another one will droop or even cry - show sympathy. The latter will try to bargain, demand compensation - present a clear calculation.

Rule 4Ready calculation

Even before starting a difficult conversation, decide what compensation you are willing to issue. Pre-prepare the argument for the amount of payments. If an employee sees how the amount is formed, and the manager can justify it, no one will bargain.

Rule 5Right moment

In the schedule, allocate a time when no one will interfere with you, since it is important for you to fire an employee in the most painless way. Performing this procedure on the go or between your phone conversations, with incoming colleagues, etc., can hurt a former employee very much.

Rule 6Conversation Plan

The key in a conversation about dismissal are the first five phrases (I emphasize, not minutes, but phrases!). They are given to you in order to formulate the message of dismissal and the objective reason as clearly as possible. And only after that you can remember the pleasant episodes of cooperation and the positive qualities of the interlocutor. Pause to allow the person to speak. Listen carefully, calmly and respectfully. The more specific the conversation, the less negative consequences will be for the dismissed person and those with whom you still have to cooperate.

Rule 7farewell form

Anyone wants to leave their place of work with their heads held high - help your subordinate. However, here it is important to find a middle ground between "come in any time" and coldness. Show respect and be sincere.

Information about experts

Elena Kozhemyakina, managing partner of BLS, Moscow. Since 1998, BLS law firm has been protecting the interests of employers in the field of employment law and providing clients with services for HR departments. BLS specializes in the labor legislation of the Russian Federation and acts only in the interests of employers.

Alexander Zhbankov, lawyer, European Law Office. Alexander Zhbankov graduated from the Moscow State Law Academy, postgraduate studies at Rosnow at the Department of Theory of State and Law, his specialization is the judicial protection of organizations in labor conflicts and personnel security. Lecturer at the Russian School of Management, PhD in Law, member of the Association for Legal Education. The European Legal Bureau is a Moscow bar association registered by the Ministry of Justice of the Russian Federation and included in the register of the Moscow Bar Association. It was created in 2003, when a stable creative group of lawyers and journalists was born at the intersection of journalism and law, who focused their efforts on providing legal assistance to citizens and legal entities, as well as on their legal education. The team included lawyers from different parts of the country and journalists from such publications as Economics and Life, EZh-Lawyer and Labor Disputes magazine.

Viktor Nechiporenko, General Director of LLC "Information Service "Red Telephone", Moscow. "Red Phone". Field of activity: organization of call-centers; information and registration services for exhibitions; conducting marketing research, seminars and trainings on telephone communication, telephone sales; consulting activities for the organization of business processes of call centers and marketing services, product promotion. Form of organization: LLC. Location: Moscow. Number of staff: 10. Number of exhibitions organized annually: 50–60. Seniority of the General Director in the position: since 1996 (since the foundation of the company). Participation of the CEO in the business: co-owner.

Marina Melia, General Director of the company "MM-Class", Moscow; professor of psychology. Graduated from the 2nd Moscow Order of Lenin State Medical Institute. N. I. Pirogova. Engaged in coaching consulting for the first persons of Russian business. Previously, she worked as a psychologist in the national sports teams of the USSR, headed the laboratory of psychology of high performance sports at the All-Union Research Institute of Physical Culture. Best-selling author of Business is Psychology, How to Strengthen Your Strength? Coaching”, “Success is a personal matter” and “The main secret of the first year of life”. OOO MM-Class. Occupation: coaching. Number of employees: 23.

Dismissal of the director (Sample form Р14001 when changing the director).docx

It is not uncommon for such situations at an enterprise when a manager is forced to dismiss an employee under an article. Legally, there is no such thing. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for removing an employee from a position can have an extremely negative impact on his future arrangement. Let us consider further some labor articles on dismissal.

Downsizing or liquidation

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

Mismatch

According to the Labor Code, dismissal under article 81, paragraph 3 can be carried out due to incompetence with insufficient qualifications of a specialist, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

• Enterprise director.
• HR representative.
• The immediate supervisor of the subject.

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

Transfer to another position

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

Dereliction of duty

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

• reprimand;
• remarks;
• dismissal.

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

Absenteeism and lateness

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

Waste and theft

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

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

Drunkenness

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

Loss of trust

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

• Cashier.
• Warehouse Manager.
• Accountant.
• Economist.
• Salesman.
• Forwarder and so on.

Loss of trust may be the result of willful misconduct or negligence, a negligent attitude to one's duties. As with absenteeism, the employee's fault must be proven. A memorandum, an act of audit or inventory can confirm the illegal actions of an employee.

Dismissal of one's own free will: article of the Labor Code

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

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

Design features

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

Attestation of fact

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

Warning

This stage also has its own characteristics, which depend on the reason for which the employee leaves. For example, when liquidating a company with the subsequent dissolution of the state, with any other change in the routine of activities at the enterprise and reducing the number of employees, the employer must notify specialists 2 months before the date on which these events will be held. The same conditions are observed when an unqualified employee is dismissed from office or when his certification is unsatisfactory. In the event that an employee commits a violation (failure to perform duties, absenteeism, non-compliance with the company's routine, etc.), the employer is obliged to take a written explanation from him. After that, the manager has a month to apply a disciplinary sanction to the employee if the reasons are regarded by him as disrespectful. Only one penalty may be applied for each violation. If, for example, a remark was issued for absenteeism, then it is impossible to dismiss an employee for the same misconduct.

Introduction to the specialist

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

Explanatory

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

Order

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

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

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

Personal documents

The employer is obliged on the last day of the employee's stay at his enterprise to give the employee his work book. It should be labeled accordingly. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the decision of the head. To do this, he needs to apply to the labor inspectorate, the court.

Compensation and payments

They rely depending on what the article of dismissal costs. For child care, in the event of staff reduction, liquidation of the company, on the personal initiative of the employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of dismissal. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation, benefits.

Consequences for the employee

They can be different and depend on the article that is indicated in the work book. This can cause various kinds of problems during the subsequent transfer to another enterprise. Conventionally, the reasons for dismissal are divided into three categories. Each of them has certain consequences. Thus, the articles are distinguished:

1. associated with the reorganization of the company. If the enterprise complies with the norms of the law, the employee should be assisted in arranging him for a new place. In this case, the consequences for him are only positive.
2. not listed in the workbook. For example, there may be a note that the employee vacated the position on his own initiative, but in fact his serious misconduct simply did not receive publicity in order to avoid a scandal. In this case, no special negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
3. Specified in the labor. They can seriously damage your reputation. But in some cases it is better to be honest.

Appeal against the manager's decision

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

The task of terminating an employment relationship is of concern not only to the employee. It is just the Labor Code that protects him: he wrote a letter of resignation, worked for two weeks - and you can no longer go to work. In this sense, the employer is not so lucky: even though he does not want to fire the employee, he is obliged to do so after a two-week warning period. But what if the employer wants to part with the employee without the lack of desire of the latter? What tools can an employer use? We'll talk about this in the article.

To begin with, it would be useful to note that in the event of disputes, it is necessary to be guided by paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2), which explained, that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

We will not consider cases of dismissal of an employee if there is his desire to terminate the employment contract - at his own request (clause 3 of part 1 of article 77 of the Labor Code of the Russian Federation), by agreement of the parties (clause 1 of part 1 of article 77 of the Labor Code of the Russian Federation) and etc. We will not dwell on options for terminating an employment contract on grounds that do not provide for anyone's initiative, for example, in connection with the expiration of the employment contract (clause 2, part 1, article 77 of the Labor Code of the Russian Federation, article 79 of the Labor Code of the Russian Federation), as well as due to circumstances not dependent on the will of the parties, for example, the conscription of an employee for active military service (clause 10, part 1, article 77, article 83 of the Labor Code of the Russian Federation). Let's not touch on relations with civil servants.

Let us consider in more detail other possible options, in each of which we will dwell on the legislative aspect, cases of application, controversial issues that may lead to the reinstatement of a dismissed employee at work, and the algorithm for applying the grounds for dismissal.

1. Dismissal due to unsatisfactory test result

The possibility of dismissal in case of an unsatisfactory test result is provided for by Art. 71 of the Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. On this basis, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without payment of severance pay.

Applications

Only during the probationary period in the absence of a legislative prohibition on its establishment.

controversial points

• the presence of a direct ban on the establishment of a probationary period;
• failure to establish a probationary period in the employment contract;
• non-compliance with the procedure for dismissal on this basis;
• unreasonable application of grounds for dismissal;
• the actual end of the test and the continuation of work by the employee.

1. Establish a probationary period in the employment contract, including:
   a) Comply with probationary restrictions. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for:
   • persons elected on the basis of a competition for the relevant position held in accordance with the procedure 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 eighteen;
   • persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;
   • persons elected to elective office for paid work;
   • persons invited to work in the order of transfer from another employer as agreed between employers;
   • persons concluding an employment contract for a period of up to two months, and other persons;
   b) comply with the limited test period. So, it 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. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).
2. To oblige the immediate supervisor of the employee to draw up official (report) notes on his work during his test, as well as other documents indicating that the employee does not stand the test.
3. Draw up a written decision that the employee did not pass the test.
4. Correctly calculate the period for warning the employee about an unsatisfactory test result. At the same time, it should be borne in mind that the period of temporary disability of the employee and other periods when he was actually absent from work (Article 70 of the Labor Code of the Russian Federation) are not counted in the test period.
5. Warn the employee in writing about an unsatisfactory test result no later than three days in advance, indicating the reasons (part 1 of article 71 of the Labor Code of the Russian Federation).
6. Dismiss after the expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in the prescribed manner (Articles 84.1 and 140 of the Labor Code of the Russian Federation). It is also possible to dismiss an employee of his own free will, if he makes such a decision after receiving the notification specified in paragraph 5. After all, Art. 71 of the Labor Code of the Russian Federation also says that if during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance.

Established practice

Article 71 of the Labor Code of the Russian Federation establishes that an employee can appeal against the decision of the employer in court. Practice shows that if there is at least one point of contention on the grounds under consideration, dismissed workers go to court. Moreover, the application of this ground actually means the beginning of a dispute between the employee and the employer. Indeed, in most cases, such a situation is resolved amicably: the employee is informed that he was not suitable for the job in the position for which he was hired, i.e. did not pass the probationary period. He understands this and leaves of his own accord. The conflict has been resolved: the employer has achieved his goal, and the employee does not have a “bad” entry in the work book.

Example 1

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The State Labor Inspectorate in the Krasnodar Territory conducted an inspection on the fact of violation by the employer of the procedure for dismissing an employee based on the results of the test. An employee was fired at Stroy-Investment LLC due to an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). During the audit, it was found that the employment contract with the employee was terminated on 10/28/2011 without warning him in writing no later than three days before. The warning was drawn up on the day the employee was fired. Thus, the employer did not meet the deadlines established by law during the dismissal procedure under Art. 71 of the Labor Code of the Russian Federation. In addition, a note was made on the warning about termination of the employment contract that it was not handed over to the employee, since he was absent from the workplace from 10/29/2011 to 11/01/2011. At the same time, judging by the documents, the employee was dismissed the day before, on 10/28/2011. It turns out that from October 29, 2011 he was no longer an employee of the company. The employer did not take exhaustive measures to notify the employee of the termination of the employment contract (sending a notice of termination of the contract by registered mail with notification or sending a telegram). Based on this, the dismissal order is subject to cancellation, the employer is obliged to compensate the employee for the earnings he has not received in connection with the illegal deprivation of his opportunity to work. The employer was presented with a binding order to eliminate the violations committed.

As you can see, due to violations of the dismissal procedure on the grounds under consideration, the dismissal will be declared illegal. The employee will continue to work for the employer, and the employer's goal of parting ways with the employee will not be successful.

2. Dismissal in connection with the refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties

The terms of the employment contract can be changed for the employee at the initiative of the employer, and if he refuses to work on new conditions, this gives rise to his dismissal on a completely legal basis - clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. This is a slightly lengthened way of parting with an employee, but completely legal.

In accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation). According to Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer , with the exception of changes in the labor function of the employee.

Applications

In the course of an employee's activity. At any stage.

controversial points

• groundlessness of changing the terms of the employment contract determined by the parties (lack of evidence to the contrary);
• introduction of amendments to the employment contract for only one employee (can be challenged due to discrimination);
• non-compliance with the procedure for changing conditions (failure to notify in writing, failure to comply with the notice period);
• lack of evidence of the employee's refusal to work in the new conditions;
• dismissal of an employee prematurely, as well as outside the warning period on the grounds under consideration.

Correct Application Algorithm

1. Notify the employee of upcoming changes to the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing, no later than two months, unless otherwise provided by the Labor Code of the Russian Federation.
2. Obtain from the employee a refusal or consent to work in the new conditions.
3. If the employee does not agree to work in the new conditions, offer him in writing another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower paid job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employer wants to part with the employee completely, then in order to avoid the possibility of finding a job in another position, it is first necessary to change the staffing table, excluding vacancies from it altogether.
4. After the formalities are met (provided that there are no vacancies or if the employee has written refusal of the proposed vacancies), terminate the employment contract in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Dismissal is carried out in the usual manner in accordance with Art. 84.1 and 140 of the Labor Code of the Russian Federation.

Established practice

As in any other case of dismissal at the initiative of the employer, a litigation may arise here. Paragraph 21 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2 provides that when resolving cases of reinstatement at work of persons whose employment contract was terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee compared with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation cannot be recognized as legal.

Arbitrage practice

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The Volzhsky District Court reasonably reinstated the plaintiff at work as an accountant in LLC 222, dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court found that the plaintiff had been working in the company as an accountant since August 29, 2006 with a salary of 15 thousand rubles. per month and a monthly bonus of 3 thousand rubles. On March 20, 2008, an employee was given a notice of a reduction in the official salary to 10 thousand rubles. in connection with changes in organizational working conditions and a reduction in the volume of work. Meanwhile, the employer did not provide evidence confirming that the change in the essential working conditions of the plaintiff was the result of changes in organizational and technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons). In addition, the employer did not offer the plaintiff another job in writing (thus violating part 3 of article 74 of the Labor Code of the Russian Federation).

Most often, it is the failure to prove the validity of changes in the terms of the employment contract determined by the parties by the employer that serves as the basis for recognizing the dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation illegal.

3. Reducing the number or staff of employees

In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee due to a reduction in the number or staff of employees of an organization (individual entrepreneur) is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid work) that the employee can perform, taking into account his state of health. The employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area.

When deciding on the transfer of an employee to another job, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, and work experience (paragraph 29 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

According to part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of an organization or termination of activity by an individual entrepreneur) during his temporary disability and during his vacation.

Applications

When carrying out an actual reduction procedure at the enterprise. Under this reduction in the number and / or staff, it is possible to “bring down” the position (profession) of the employee with whom it is necessary to terminate the employment relationship.

controversial points

• the validity of downsizing and/or staffing. Initially, the courts establish whether there has been a reduction in the number of employees or staff of the enterprise. This circumstance must be confirmed by an order to reduce the number or staff of employees and a new staffing table. At the same time, the new staffing table must be approved before the start of measures to reduce the number or staff of the organization's employees. In addition, the courts check what served as the basis for reducing the number or staff of employees (reducing the amount of work, carrying out various organizational and technological measures);
• compliance with the pre-vacation procedure for the employment of an employee at the same enterprise for another position. In case of disputes, the courts find out whether the employee was warned in the prescribed manner personally against a personal signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation), whether the plaintiff has a preemptive right to remain at work (Article 179 of the Labor Code of the Russian Federation), whether measures have been taken for his employment, whether he is a member of a trade union and whether the trade union took part in his dismissal (Articles 82, 372 of the Labor Code of the Russian Federation). When deciding whether an employee has a priority right to be left at work during a reduction, it should be borne in mind that in addition to the category of workers who enjoy the priority right to remain at work, listed in Art. 179 of the Labor Code of the Russian Federation, the collective agreement may provide for other categories that enjoy such a right;
• compliance with the prohibitions of Art. 81 of the Labor Code of the Russian Federation for the dismissal of an employee during his temporary disability or while on vacation;
• "Delay" dismissal on the named basis without any reason. If the employee continues to work after the expiration of the warning period and the employer does not insist on dismissal, does not take any actions for this (and there are no circumstances preventing dismissal), the employment contract continues to be valid.

Correct Application Algorithm

1. Issue an order to reduce the number and / or staff.
2. Approve the new staffing table with its introduction into force from a certain date (not yet arrived).
3. Determine the pre-emptive right to leave at work (it is considered both before the issuance of an order to reduce, and until the dismissal itself - if new circumstances arise that indicate that the dismissed employee has a pre-emptive right to leave at work). If the employee is a member of a trade union, take into account Art. 82 of the Labor Code of the Russian Federation.
4. Notify in writing (under the personal signature) of the laid-off employees of the upcoming dismissal at least two months before the day of dismissal; in case of mass dismissal - not less than three months.
5. Notify the state employment service no later than two months, and in case of mass reduction - no less than three (clause 2, article 25 of the Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment in the Russian Federation"). If there is a trade union organization at the enterprise, notify the trade union within the same time frame (part 1 of article 82 of the Labor Code of the Russian Federation).
6. Notify in writing of the availability of suitable vacancies at the enterprise with a proposal to the dismissed employee to fill them. However, vacancies must be offered during the entire two-month notice period for each new vacancy.
7. Receive a written refusal from the employee of the proposed vacancies. In case of consent to take one of the vacancies, stop the procedure for dismissal by reduction and transfer to the position (profession) chosen by the employee.
8. Dismiss the employee in the usual manner on the date specified in the notice of reduction and upcoming dismissal (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

Established practice

Retrenchment is one of the most contested grounds for dismissal. The employer should pay attention to several points. Firstly, to offer the employee not only a vacant position or a job corresponding to his qualifications, but also a vacant lower position or a lower-paid job. Secondly, if new vacancies appear, do not forget to offer them to the employee. Thirdly, to check whether the employee has a pre-emptive right to stay at work. Fourthly, to warn the employee about the upcoming reduction in writing and under a personal signature at least two months in advance. Fifth, check if the employee is on vacation or on sick leave on the day of the reduction.

Arbitrage practice

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The Soviet District Court reasonably reinstated the plaintiff at work, since her dismissal was carried out by the employer in violation of Part 6 of Art. 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer (except in cases of liquidation of the organization) during the period of his temporary disability and during his vacation. The court found that the laboratory where the plaintiff worked was liquidated by order of the rector. The plaintiff applied with a written application for granting her unused vacation days with subsequent dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. By order, the plaintiff was granted unused vacation days from 11/03/2007 to 01/16/2008, followed by dismissal due to staff reduction. By order dated 05.11.2008, she was dismissed from work under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation from 16.01.2008. The court also found that the plaintiff was ill during her vacation (from 01/09/2008 to 01/24/2008). On January 13, 2008, she notified the employer of her incapacity for work and the right to extend her leave in accordance with Art. 124 of the Labor Code of the Russian Federation. Despite this, the employer did not extend the leave to the plaintiff, illegally dismissing her under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation during the period of vacation and temporary disability, which contradicts the norm of Part 6 of Art. 81 of the Labor Code of the Russian Federation.

The example shows that it is necessary to comply with formalities up to the dismissal of the employee. In the case under consideration, non-compliance with the prohibition established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, served as the basis for recognizing the dismissal of an employee as illegal and reinstating him at work.

4. Dismissal for non-compliance

Clause 3, Part 1, Art. 81 of the Labor Code of the Russian Federation provides for the possibility of dismissal of an employee due to his inconsistency with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification. As noted by the Plenum of the Armed Forces of the Russian Federation, certification must be carried out in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers. The employer does not have the right to terminate the employment contract with the employee on the above grounds, if the certification was not carried out in relation to him or the certification commission came to the conclusion that the employee complies with the position held or the work performed. The conclusions of the attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case (clause 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2).

In addition, when an employee is dismissed on this basis, the employer must prove that he offered him another job that matches his qualifications, but he refused, or the employer was not able (for example, due to the lack of vacancies or jobs) to transfer the employee with his consent to other job he has in the area.

Applications

In relation to employees who are required to undergo certification in accordance with the law, local regulations of the organization. As you know, employees can be divided into two categories: those who are required to undergo periodic certification due to the requirements of regulatory legal acts (doctors, prosecutors, teachers, etc.), and those who undergo such certification if there are requirements established by the internal documents of the organization. Questions about the first category are much less common than about the second. Indeed, in order to establish requirements for certification, not only the grounds are necessary, but also the procedure for conducting, frequency, methodological base, and so on.

controversial points

• no need for certification (for example, the employee has positive results of the previous certification and the lack of grounds for a new one, including by deadline);
• lack of certification. The position of the courts is as follows: the dismissal of an employee on the specified basis without certification is not provided. If the employer does not provide the court with evidence of the legality and observance of the procedure for dismissing an employee in accordance with the rules of Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal cannot be recognized as legal;
• non-compliance with the certification procedure;
• inconsistency of certification conclusions with actual circumstances;
• non-compliance with the procedure for dismissal on the grounds under consideration (say, in terms of the lack of an offer of another job at the same enterprise);
• "Delay" in the application of the ground (for example, the dismissal of an employee on the specified grounds two years after receiving the results of the certification).

Correct Application Algorithm

To terminate an employment contract due to an employee’s inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation), the following legal facts and documents are required:

1. the decision of the attestation commission confirming the above fact;
2. an offer in writing of another job and the employee's refusal of it (in writing). Staff list confirming the availability of vacancies;
3. the absence of the employee’s fault in the improper performance of labor duties, i.e. the employee does not correspond to his position due to insufficient qualifications, and this is precisely what prevents him from fulfilling his duties. Qualification consists of at least the following elements: knowledge, skills, which are enshrined in the state educational standard in the specialty in the qualification directory.

Established practice

An analysis of judicial practice shows that the inconsistency of an employee with the position held or the work performed can only be confirmed by the results of an attestation carried out in the appropriate manner and the issuance of a negative conclusion on the qualifications of the employee based on its results. The employer does not have the right to dismiss him on this basis, if there was no attestation in relation to him.

Arbitrage practice

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The employee filed a lawsuit against the Municipal Unitary Enterprise Housing and Public Utilities for reinstatement and payment for the time of forced absenteeism. The plaintiff worked in the organization as an electrician and was dismissed under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation for inconsistency with the position held. The reason for the dismissal was the lack of documents giving the right to work as a duty electrician.

The court found that before hiring, the plaintiff passed a knowledge test of the Labor Code of the Russian Federation, PB of electrical installations, traffic rules, PPB 01-03, POTRM and he was assigned the III electrical safety group, which served as the basis for issuing him the appropriate certificate. However, the employer violated the procedure for dismissal (did not create an attestation commission, did not conduct an attestation, therefore, there is no conclusion of the attestation commission that the plaintiff does not correspond to the position held). In addition, upon dismissal, the employer did not offer the plaintiff in writing the available vacancies at this enterprise, which is a prerequisite for dismissal on the specified basis. Thus, the court concluded that the dismissal of the plaintiff cannot be recognized as legal, therefore, the claims were fully satisfied (decision of the Uletovsky District Court of the Trans-Baikal Territory dated April 19, 2011 in case No. 2-79 / 2011) .

Upon dismissal under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is necessary not only to comply with all the formalities and procedures, but also to have a real basis, otherwise the employee will be reinstated at work.

5. Repeated dereliction of duty

Dismissal on the specified basis is provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation and is possible only with repeated failure to fulfill duties.

Applications

If the employee has "minuses" in the work, allowing to apply a penalty to him. At the same time, the “minuses” should be in the nature of a violation of labor discipline, including the requirements of the job description, local regulations, etc. In the case of an impeccable behavior and work of an employee, such a basis for dismissal does not apply to him.

controversial points

• there is no repetition (systematicity) of the violation (the violation is of a single nature);
• in the presence of systematicity - the absence of punishment for the previous violation (there is no basis for applying the considered grounds for dismissal);
• missing the deadline for repetition, i.e. a situation where a penalty for a previous violation has been withdrawn or extinguished (more than one year has passed);
• missing the deadline for applying a new penalty in the form of dismissal on the specified basis. It is six months from the date of the misconduct, and according to the results of an audit, audit of financial and economic activities or an audit - two years, as well as one month from the day the misconduct was discovered (the day when the misconduct is discovered, from which the monthly period begins, is considered the day when the person to whom the employee is subordinated by work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions). At the same time, the time of illness of the employee, his stay on vacation (any of its types), as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted in the monthly period for the application of a disciplinary sanction. The absence of an employee from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period;
• successful contestation by the employee of the previous penalty, which leads to the loss of the sign of repeated violations;
• application of a penalty without reason (the actual absence of a violation by the employee).

Correct Application Algorithm

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary responsibility.
2. Find a new violation.
3. Check the procedure for bringing to disciplinary responsibility in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (fixing the fact of a violation, demanding an explanation, drawing up an act on the failure to provide an explanation after a two-day period, etc.).
4. Issue a dismissal order under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, following the usual procedure established by Art. 84.1 and 140 of the Labor Code of the Russian Federation.
5. Familiarize the employee with the order and conduct a full settlement with him upon dismissal.

Arbitrage practice

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33-35 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2. Thus, the courts, when considering disputes, should take into account that the employee’s failure to perform duties without good reason means failure to perform labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

• absence of an employee without good reason at work or workplace. If a specific workplace is not specified either in the employment contract or in the local regulatory act, then one should refer to Part 6 of Art. 209 of the Labor Code of the Russian Federation, according to which the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;
• refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since he is obliged to perform a labor function defined by an employment contract, as well as comply with the internal labor regulations in force in the organization (Article 56 TC RF). If the employee refuses to continue working due to a change in the terms of the employment contract determined by the parties, then he should be dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (see paragraph 2 of this article on page 33);
• refusal (avoidance) without good reason of medical examination of workers of certain professions, as well as the refusal of the employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

The Resolution of the Plenum of the Armed Forces of the Russian Federation also states that the employer has the right to terminate the employment contract on this basis only if a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his labor duties without good reason, it was not removed or extinguished. It is also possible to dismiss under this article if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

In addition, the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he submitted an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice of dismissal.

It is the employer, in the event of a dispute, who is obliged to provide evidence showing that, firstly, the violation committed by the employee and which was the reason for dismissal actually took place and could be the basis for terminating the employment contract; secondly, the employer did not violate the terms for the application of a disciplinary sanction, provided for in Parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation.

Arbitrage practice

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The Soviet District Court reasonably recognized the dismissal of the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation illegal. The court found that the plaintiff had been reprimanded for violating industrial discipline. However, the plaintiff challenged the order to impose a reprimand, and by the decision of the justice of the peace it was declared illegal. Despite this, the plaintiff was dismissed due to repeated non-performance by the employee without good reason of labor duties. Considering that the disciplinary sanction previously applied to the employee was declared illegal and thus there is no sign of repetition, the court concluded that there were grounds for dismissing the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation was not.

In addition, it must be borne in mind that when dismissing on this basis, the severity of each of the misconduct, the employee's attitude to work, and the consequences of misconduct are important.

6. Absenteeism and other guilty one-time actions of the employee

These grounds are deliberately collected in a single section, since they provide for the guilty actions of the employee and are, in essence, a disciplinary sanction for a violation. The grounds under consideration include:

1. a single gross violation by an employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation). This is absenteeism (subp. "a"); appearance at work in a state of intoxication (subparagraph "b"); disclosure of secrets protected by law, which became known to the employee in connection with the performance of his labor duties (subparagraph "c"); the commission of theft, embezzlement, etc., at the place of work, established by a verdict or court order that has entered into legal force (subparagraph “d”); violation of labor protection requirements that caused serious consequences (accident at work, accident, catastrophe) or created a real threat of such consequences (subparagraph "e");
2. the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
3. commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

Applications

Only in cases where there are guilty actions of the employee, which have found expression in a disciplinary violation. If the employee with whom it is necessary to terminate the employment contract is not a violator of discipline (see clause 5 of this article on page 40), dismiss him on the grounds provided for in clauses 6-8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is impossible.

controversial points

• lack of grounds for dismissal (for example, the absence of an employee at work for more than four hours in a row for good reasons cannot be regarded as absenteeism);
• the presence of factual grounds, but a violation of the dismissal procedure. Since in the cases described above, the grounds for dismissal are disciplinary violations, when applying dismissal as a disciplinary sanction, it is necessary to thoroughly observe the procedure for imposing a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation;
• violation of the term of application of the basis. Dismissal on the indicated grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, being on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of the employee (part 3 of article 193 of the Labor Code of the Russian Federation). A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit or audit of financial and economic activities or an audit, later than two years from the day it was committed. The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).

Correct Application Algorithm

Dismissal on the grounds considered should be the logical conclusion of the procedure for applying a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation: with the fixation of a fact, the demand for explanations, the clarification of the circumstances of the case by an internal audit, etc.

Established practice

In most cases, employees win disputes due to the recognition of dismissal orders as invalid due to violations of the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation). As a rule, these are ordinary disputes about challenging penalties, only the penalty here is dismissal.

7. Termination of relations with the head

Parting with the head of the organization is possible not only for all of the above reasons, but also for several additional ones:

1. In accordance with paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties. Heads of structural subdivisions (their deputies), chief accountant do not fall under this basis.
   The question of whether the violation was gross will be decided by the court. For example, failure to perform one's duties, which could cause harm to the health of employees or cause property damage to the organization, will be considered rude. At the same time, the obligation to prove that the violation took place and was gross lies with the employer (paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).
2. According to paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in cases provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization. In other words, an additional list of grounds and conditions for their application (not named in the Labor Code of the Russian Federation) can be established in labor contracts with these persons.
   As additional grounds for dismissal, the employment contracts of the heads of organizations may provide, for example, failure to comply with the decision of the general meeting of shareholders; infliction of losses to the managed enterprise, society on a large scale (specify the criteria); allowance by the head in connection with inefficient work for more than three months of delay in the payment of wages to employees.
3. Paragraph 2 of Art. 278 of the Labor Code of the Russian Federation provides an additional basis for terminating the employment contract with the head of the organization in connection with the adoption by the authorized body of the legal entity or the owner of the property of the organization, or the authorized owner of the person (body) decision on the early termination of the employment contract. The decision to terminate the employment contract on the specified grounds in relation to the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation. At the same time, this ground is subject to a general ban on dismissal at the initiative of the employer during the period of temporary disability and during the period of vacation, except in the case of liquidation of the organization or termination of activity by an individual entrepreneur (paragraph 50 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).

Applications

Only in relation to a specific category of workers - managers.

controversial points

• lack of grounds for dismissal;
• violation of the dismissal procedure.

Correct Application Algorithm

1. Record the grounds for dismissal so that there is documentary evidence.
2. Follow the general dismissal procedure (including a ban on dismissal of an employee during his temporary disability or vacation).

Arbitrage practice

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The Samara District Court considered a case on a claim for the reinstatement of a dismissed employee at work as a director. The plaintiff challenged her dismissal, made for inefficient work on the basis of paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The court found that an employment contract was concluded between the parties for a period of one year, according to which the possibility of its early termination under Art. 81 of the Labor Code of the Russian Federation on additional grounds for dismissal, including failure to comply with certain provisions that affect the financial performance of the enterprise. The plaintiff worked in the position for 54 days, after which she was fired. The reason was the act of a comprehensive documentary audit and the balance sheet, which testified to the deterioration of financial and other indicators in the work of the enterprise. The court pointed out that the grounds for dismissal may be improper performance of the terms of the employment contract during the period of its validity, and not the period preceding its conclusion. The defendant could not prove the fact that the plaintiff did not fulfill the terms of the contract during the period of its validity, therefore the plaintiff was reinstated at work in her previous position, and a salary was collected in her favor for the time of forced absenteeism.

In conclusion, we note that we have given seven possible grounds for dismissal that can be used by the employer if it is necessary to terminate the employment contract with the employee. Each of these bases has its own specifics. Not everything can be applied to all employees without exception. In addition, some grounds suggest the presence of certain factors and circumstances that may not appear "at the request" of the employer.

However, an analysis of all the considered types of grounds allows us to conclude that if there is a goal to terminate the employment relationship with the employee, a competent approach to solving this issue and carefully carrying out the legal dismissal procedure, the task is not immediately, but can be solved. Even the dismissal of an employee belonging to the "preferential" category (say, a woman with children under the age of three) can occur in the absence of his desire on a completely legal basis. You just need to choose the right one and implement it.

I would like to add that the presence of such an opportunity should not run counter to ethical issues or be transformed into discrimination. There must be a measure in everything. Possibility - does not mean real use. Although knowing your rights and opportunities is useful not only for employees, but also for employers.

Footnotes

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