Dismissal of an employee is not. Grounds for dismissing an employee at the initiative of the employer

Please tell me how to legally fire an employee who does not suit me for a number of reasons? Here they are:

1. The employee performs his duties poorly: his work has to be redone, the company loses customers, and suffers losses.
2. He is systematically late, is rude to colleagues and management, and poisons the team.
3. Is it necessary to somehow record his misdeeds?

How to formalize a dismissal if he himself does not want to leave?

Is such an employee entitled to compensation for unused vacation and severance pay?

Daniil B.

It is possible to punish and fire an employee for negligence or rudeness. But provided that the obligations to work conscientiously and be polite are documented.

He is entitled to compensation for unused vacation, but not to severance pay.

Anton Dybov

tax expert

Better world

Before we look at the procedure for punishing an employee, we advise you to still agree with him about dismissal due to at will or agreement of the parties.

The conflict is bad for you because the employee can appeal to the labor inspectorate. If she reacts and shows up for an unscheduled inspection, she will mess up the entire personnel record.

During negotiations with an employee, calmly explain that if he does not leave peacefully, then you will launch a punishment procedure. Sooner or later it will end with an unpleasant entry in work book.

An entry made in accordance with all the rules will have to be canceled only through the court - the labor inspectorate will no longer help here. And even if the employee goes to court, it is not a fact that he will win. Does he need it?

You can only break what is written

An employee’s responsibilities are usually divided into disciplinary and professional.

Many arise from laws and regulations. The driver must follow traffic rules, the cashier must not take company money, and the seller is prohibited from shortchanging customers.

Examples: show up for work by 10:00, that is, not be late, and leave no earlier than 18:00. Do not be rude to colleagues and contractors. Wear strict business clothes.

In a word, these are requirements for which the employee does not need professional skills.

Professional responsibilities As a rule, the job description details it. In the employment contract it is enough to indicate the general labor function: hired as a manager, accountant - and sent to instructions.

Examples: answer customer calls, generate shipment requests in such and such a program and within such and such a period, transfer documents to such and such, prepare and submit tax returns.

It's hard to prove without a job description labor inspection or to the court that the person punished or fired did not work well. First of all, the employer will be asked: where is it written that the person was obliged to do exactly this and exactly this way?

Once again, and yellow: if there is no documented duty of the employee, then there is no responsibility for its failure to fulfill it.

Types of punishment for workers

If an employee breaks the law, employment contract, PVTR , job description or other local regulations, then he does not perform labor duties. The Labor Code calls this a disciplinary offense and allows the employer to punish the person.

Officially, this is called “apply disciplinary action.” There are three types of such penalties.

Comment- the easiest measure. Usually used if you need to slightly pull back an employee who is generally not bad, but has somehow relaxed. A couple of times I was 10 minutes late, once I forgot to hand over documents to the buyer, etc.

Rebuke- standard and more severe measure. The driver's hour-long delay, which caused the delivery of goods to the buyer to fail, is quite worthy of a reprimand.

Dismissal for appropriate reasons. Popularly - “according to the article”. There are two classic reasons for it:

There are no other punishments in the Labor Code. There are no special remarks, severe reprimands or reprimands entered into a personal file. If you punish an employee in this way, he will easily cancel the penalty through the labor inspectorate or court on a formal basis.

You can punish him with a ruble by issuing downtime due to the fault of the employee or leaving him without a bonus. Neither one nor the other is considered a disciplinary sanction.

Also, in cases established by the Labor Code, the employer has the right to damage caused by his negligence. And this is also not a disciplinary sanction.

Principles of employee punishment

The employer needs to take into account the severity of the offense, the circumstances of its commission and the employee’s reputation.

It is illegal to fire for absenteeism when the employee was absent for a good reason: sick, was a witness in court, etc.

Life shows that before dismissal it is better to issue three or four reprimands for serious violations for which the employee is at fault. Reprimands and reputation will be spoiled, and will show that the employer tried to the last to bring the person to his senses before dismissing him.

Another principle is one-time collection. If at first the employee was reprimanded in full form, and later increased to a reprimand, then the latter is illegal. You cannot reprimand someone for absenteeism and then fire them for it.

Punishment procedure

Recording an offense. The Labor Code does not have requirements for the form and content of a document about this. A memo from the immediate supervisor of the offending employee will do. Or an act drawn up by employees who were rude to the person involved.

Request for explanations. The Labor Code obliges to give the employee 2 working days to explain in writing the reasons for the misconduct. But it’s better to give more: 3-4.

Inform the employee in writing, signed and in front of witnesses, of the need to provide explanations. In the document, indicate the date, time and place where he should bring the paper.

If the employee refuses to sign the notice, draw up a statement about this with the witnesses. The same thing if he never brings an explanation at the appointed time.

Order of disciplinary action. So, you were not convinced by the explanations or the employee did not provide them at all. Time to issue an order. Write in it why and how exactly you are punishing the person.

Let me remind you that there are only three disciplinary sanctions: reprimand, reprimand and dismissal. Without any prefixes or decorations.

An order can be issued within a month from the date of discovery of the offense and no later than 6 months from the date of its commission. But, of course, it’s not worth delaying for so long.

Introduce the offender to the order and sign it. If he refuses, draw up a report about it.

When the disciplinary sanction is dismissal, it is sufficient to issue a dismissal order. At the same time, it will also be an order for punishment. It must also be familiarized with signature.

Validity period of the recovery. Reprimands and reprimands are valid for one year from the date of issue of the order. If during this time the employee commits another offense, it will be repeated. And this is already a formal reason for dismissal “under article”. Provided that the severity of the violation corresponds to that.

Punishment procedure for the second (third, fourth) offense the same as for the first one. Nothing is added and nothing is taken away.

Payments upon dismissal “under article”

At the same time, the labor code prohibits paying any severance pay to the offender. The provision regarding it in an employment or collective agreement is invalid.

Otherwise, the procedure for dismissal “under article” does not differ from the procedure for dismissal for any other reason.

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

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

Why might they fire you?

Reasons for dismissing an employee at the initiative of the employer quite a bit of. Meanwhile, any action related to 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.
• Failure by an employee to fulfill his duties properly, negligently 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, apply other disciplinary sanctions. If all these measures do not bring results, then dismissal follows.
• Commitment by an employee of actions causing damage to the enterprise. We are talking, in particular, about the disclosure of information protected by law, theft, etc. In all these cases, there must be confirmation of the employee’s guilt.
• Committing something incompatible with the position held. For example, a teacher who humiliates the dignity of students faces dismissal.
• Arriving at the company in a drunken state.
• Providing deliberately false documents when applying for a job.
• Liquidation of an enterprise (termination of work of an individual entrepreneur), reduction of staff.

If the owner of an organization changes, then the accountant and director can be fired. The remaining employees must remain at work, unless, of course, others are absent grounds for dismissal. At the initiative of the employer and the employee The contract is terminated only in extreme cases. Moreover, in some situations, dismissal is a right, and in others it is the employer’s obligation.

Process nuances

The Labor Code contains regulations 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 in writing about upcoming events. The notification must reflect the reasons for making such a decision with references to labor legislation.

The employee, in turn, can prevent dismissal. His actions will depend on the nature of the reasons for which the contract with him is terminated. 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 the employer and employee fail to come to a common opinion, it is better to terminate the contract.

Guilty Misdemeanors

May be associated with unlawful actions of an employee. Among the main violations are the following:

• Systematic tardiness, absenteeism.
• Refusal to comply with the rules of the enterprise.
• Failure to comply with the requirement to undergo a medical examination, training in safety regulations, evasion of 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 regulations, if this resulted in serious consequences or the threat of their occurrence.

Certification

During its passage, the compliance of the person’s competence with the position he occupies is determined. The law establishes the procedure for conducting certification tests. The procedure includes:

• Approval of the Certification Regulations. It describes the conditions, frequency of the procedure, evaluation criteria, composition of the commission, rules for drawing up the conclusion.
• Issuance of an order for certification. It must indicate the time and place of the event, information about the employees being certified.
• Formation of the commission.
• Employees passing the test.
• Drawing up a conclusion. In it, the commission formulates conclusions about the professional suitability of each employee.

If during the certification an employee’s insufficient qualifications are revealed, the manager may send him for training or fire him. In any case, if the commission’s conclusion is negative, continue labor activity a citizen cannot hold the same position.

Commission of a crime by an employee

Dismissal of an employee at the initiative of the employer just because an employee is being harassed is not permissible. In the Russian Federation there is a presumption of innocence. Until the guilt of a person is proven, he is considered not to be involved in the act. Even a citizen placed in custody continues to be registered in the state. However, it should be taken into account that during this period the employee is not at the enterprise and does not perform his duties. Accordingly, no earnings are accrued to him.

If an employee is convicted, the contract with him or her is terminated solely on the basis 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 exist, the manager must either terminate the contract or offer the employee another activity that he can carry out without harm to his health. The relevant rules are established 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. An employer must offer positions in another territory if this is provided for in a collective agreement or labor agreement.

The presence of contraindications must be confirmed by the conclusion of a medical commission. For certain categories of workers, a medical examination is mandatory. These include, for example, catering staff, teachers, and 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, carrying out activities related to alternative service.
• Reinstatement to the position occupied by an employee of a citizen who was previously dismissed but reinstated by decision of the labor inspectorate or court.
• Expiration of the contract.
• Death of an employee or recognition as missing.
• Extraordinary circumstances that create obstacles to further work activities.
• Lack of access to information constituting a secret protected by law.
• Recognition of the decision of the labor inspectorate or court to reinstate a person at work as invalid.

Termination of a contract with a part-time partner

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

The procedure for dismissing 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 that is the person’s main place of work.

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. If a violation is detected by the employer, step-by-step instructions for dismissing an employee at the initiative of the employer includes:

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

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

Recording a violation

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

• Violation Act. This document must be drawn up in the presence of at least 2 witnesses.
• Memorandum. It can be written by a colleague or the employee’s immediate supervisor.
• Conclusions of the commission. As a rule, this option is used for serious violations.

Familiarization of the employee with documents

If the commission confirms the employee’s guilt, one copy of the conclusion is provided to him for review. At the same time, after reading the contents of the document, he 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, to put it simply, to write an explanatory note. The employee may refuse to explain his actions. Then it is also necessary to draw up an act. In practice, in such cases, as a rule, what happens is dismissal of an employee. At the initiative of the employer a special commission may be convened, which includes representatives of the labor inspectorate and trade union. At a joint meeting, they make a decision on the situation that has arisen.

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

Order

Only on its basis does it happen, according to Labor Code of the Russian Federation, dismissal of an employee. At the initiative of the employer or whether it happens at will - it doesn’t matter. Termination of a contract is always preceded by the issuance of an order.

The corresponding order is issued after the head has examined all the circumstances and materials collected during the inspection. 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. The legislation allows three days for this. If an employee refuses to sign or is absent from the enterprise, an act is drawn up or the corresponding entry is placed directly on the order.

Entering information into the labor report

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 clause of the Labor Code. The employee receives a work book on the day the corresponding note is made.

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

If for some reason the employee cannot pick up the work permit, he is sent a notice of the need to appear at 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 covered general rules, including those regulating the procedure dismissals at the initiative of the employer. Employee You cannot be fired if:

• He has a small child(ren) under the age of 1.5 years. Moreover, this rule applies to both mothers and fathers.
• He is raising a child until he is 14 years old alone.
• He is dependent on a disabled minor.

You can't fire a pregnant woman either.

These prohibitions, however, do not apply if:

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

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

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

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

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

If it is impossible to pay the funds due to the citizen’s absence from work, the required amounts must be issued no later than the next day after the request for payment is presented to them.

Upon liquidation of the organization, the employee receives severance pay. It is calculated based on average monthly earnings. The employee also receives compensation while looking for work. It is equal to the average monthly salary for 2 months. IN exceptional cases The employee may retain his earnings for the third month.

Slightly different conditions are provided for the chief accountant, director and his deputy. If the owner of the organization changes, 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 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 reward the employee for high professionalism.

Finally

Currently, it is quite difficult for an employer to terminate a contract with an employee unilaterally. IN mandatory the rules established by law must be observed.

It is worth saying that it is not only in Russia that such a complex order operates. 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, this country has Decree No. 29 of 1999, which provides for additional measures aimed at improving labor relations and strengthening them in enterprises and organizations.

The dismissal process can be easy or long, depending on the type of dismissal chosen, the presence of court proceedings or agreements between the employer and the quitter.

Step 8: Recording the dismissal in the organization’s accounting documents

HR department employees fill out necessary documents and formalize the dismissal of the employee in the accounting documentation of the enterprise (account book, personal card of the employee). The employee himself certifies this registration with his signature.

Step 9: Issuance of the employee’s work book

The resigning employee receives payments and his work book on the last day of work or, in case of absence, the next day when he appears. Issue delays of this document in the hands of the employee illegal on the part of the employer, so usually there are no delays.

If an employee does not show up for payment on the last day of work, the employer must notify the resigning employee in writing that he must appear for payments and documents (by mail or in an accessible manner). In case of refusal, a special act of refusal to receive a work book is drawn up, which must be signed by three witnesses and the person resigning. If the latter refused, another act of refusal to sign is drawn up. Such acts will be needed when resolving legal disputes.

Step 10: Confirmation of receipt of the employee’s work book

This happens in a special book for the movement of labor books (form of the Ministry of Labor of the Russian Federation No. 69) by leaving a signature.

Step 11: Issuance of a special salary certificate

Occurs in the personnel department or accounting department. Sometimes the employer himself initiates the issuance of this document, and sometimes the employee has to make an independent request to obtain a certificate.

How does the process of terminating employment contracts differ for different types of dismissal?

By agreement of the parties

Dismissal by agreement of the parties occurs at any time on the basis of seventy the eighth article of the Labor Code of the Russian Federation. The process itself begins with one of the parties, in turn, the other party is notified of such a proposal. After mutual consent of the parties, the termination of the employment contract is completed.

The agreement to terminate the employment contract specifies the date, grounds and conditions that are negotiated by the parties. The peculiarity of this type of dismissal is from the company to the resigning employee. The amounts and terms of payments are negotiated individually and are included in the agreement, secured by the signatures of both parties.

At the initiative of the employee

Upon dismissal, the initiator is the employee himself, who writes a statement of desire to resign and submits it to his superiors. The person leaving must notify his superiors of his desire two weeks in advance. In turn, the boss initiates the dismissal of the employee, indicating in the dismissal order “at his own request.” Similar view layoffs are one of the most common.

The resigning employee receives payments in accordance with his salary and sick leave, if these have not been used. Others are usually not provided for unless this was stated in the employment contract.

At the initiative of the employer

The dismissal of an employee at the initiative of the employer is regulated by the eighty-first article of the Labor Code of the Russian Federation.

An employer may dismiss an employee for the following reasons:

• In case of cessation of work of an enterprise or organization, as well as in cases where the company reduces its workforce.
• If the person's skills or qualifications .
• Change of owner of an organization, firm or enterprise.
• Stable or serious violations of the employment contract by the employee (appearing drunk or in a state of intoxication, theft and theft, disclosing secrets of an enterprise or organization and other guilty actions).
• Conflict of interest, as well as providing fictitious or incomplete data about your identity and income, as well as other data.
• Other reasons specified in the employment contract or in the Labor Code of the Russian Federation.

An employer is not allowed to dismiss employees on vacation or during a period of temporary incapacity for work.

Two months before dismissal, the employer must notify the employee about this personally.

In cases where an employee appears at his workplace in a drunken state (drug or alcohol intoxication), this must be certified by a medical commission hired by the employer himself.

With this type of dismissal, all documents are drawn up by management. However, dismissal at the initiative of the employer is clearly regulated by the Labor Code of the Russian Federation and must occur within the framework of the law (indicating the reasons, verifying or documenting the misconduct, violation of the law, etc.).

Otherwise, the company or enterprise may be subject to inspection by the Labor Commission with subsequent imposition of a fine.

The dismissal process is not complicated, the main thing you should pay attention to is compliance with the dismissal deadlines on the part of the employer and the accuracy of the data in the completed documents, so that in the future there will be no problems with registration of dismissal or the Labor Commission.

Dismissing an employee is a simple matter only at first glance. It’s good when everything happens by mutual agreement, but there are situations in which one party does not agree with the opinion of the other. In this case, there are several ways to solve the problem.

Possible options for dismissing an employee

It is rare in any organization that situations do not arise when an employee needs to be fired. There may be many reasons for this, but in any case it is necessary to comply with the rules established by law. There are several options for dismissing an employee.

Own wish

The best option for both sides is . The employee receives a work book that is not marred by unpleasant entries, and the employer gets rid of the unwanted employee without wasting unnecessary nerves. An argument in negotiations can be good recommendation or bonus payment.

If an employee does not want to part with his job, then it is worth collecting incriminating evidence. Any shortcomings in the work, the slightest delay, rudeness to the client - the main thing is to document all comments in writing. After this, it is better for the employee to agree to voluntary resignation, otherwise he may be fired under the article.

One of the convenient and simple reasons for dismissal is non-compliance labor discipline. It should be taken into account that the employee’s employment contract must clearly state when his working day begins and ends.

In order for non-compliance with labor discipline to be a legal basis, each violation must be recorded in a report card. If you are constantly late, you need to collect a commission. In case of lateness, a report must be drawn up, and an explanation in writing must be required from the employee. If the employee refuses to write an explanatory note, an act must again be drawn up - it must be signed by a commission including three disinterested witnesses, a manager and an employee from the personnel department (if there is one).

For dismissal, several such acts should be collected. It is also important to reprimand the employee. All this documentation is a legal reason for dismissal and strong evidence that you are right in the event of a trial.

Certification

Employees are often fired due to unsuitability for their position, when they cannot cope with their responsibilities or do so in an inappropriate manner. In this case, you can get rid of the employee by conducting certification. This is possible only in the case when the organization has a Regulation on Certification, and the employee has signed that he has read it. Before such a check, a decree must be issued, and sometimes approval of the schedule is required. In any case, employees become familiar with such information against signature.

To carry out certification, a special commission is needed - it must include people who can actually assess the employee’s qualifications. The manager does not have to be a member of this commission or attend the certification.

This method is quite labor-intensive, since all employees have to be checked. In addition, thanks to advance warning, the employee can thoroughly prepare for the test and show a good result.

One-time gross violation

All it takes is one mistake, and an employee can be legally fired without his or her desire. A gross violation according to Labor Code is considered if the employee:

• appeared at the workplace drunk (intoxication may also be due to drugs);
• missed more than 4 hours from work without notifying his superiors and without a valid reason;
• disclosed commercial or state secrets;
• did not follow safety precautions, which could lead to serious consequences;
• stole, embezzled or destroyed property in the workplace.

Absenteeism must be reprimanded. The employee must provide an explanatory note. In the absence of a valid reason, dismissal is completely legal.

If an employee shows up to work drunk, this fact must be recorded. In addition to witnesses with written testimony, a medical examination is required. The reprimand must be announced and entered into a personal file.

New working conditions

The reason for dismissal can be found by changing the terms of the employment contract. The employer has the right to do this on his own initiative, and if the employee disagrees, the contract will be terminated. It is important to take into account controversial points in this option:

• changes in conditions must be justified;
• conditions should be changed not only for one employee, otherwise it will be discrimination;
• changes in conditions must be notified promptly and in writing;
• if an employee refuses new conditions, evidence is required;
• An employee cannot be fired before the notice period expires.

Loss of trust

This reason is suitable for dismissing employees who are engaged in servicing commodity or monetary assets. Guilty actions serve as the basis. These include situations where an employee:

• used for personal purposes the property necessary to carry out labor responsibilities;
• fictitiously wrote off goods or valuables;
• cheated;
• violated cash discipline;
• stole, lost or destroyed property entrusted to him;
• violated the rules for storing or issuing valuables;
• underestimated or overestimated the price of goods;
• accepted or issued cash without proper registration;
• weighed, calculated;
• violated the rules for the sale of alcohol or cigarettes;
• violated the rules for issuing medications.

To terminate a contract with an employee on the basis of one of the listed points, you need to prove that such an offense has been committed. Otherwise, the dismissal will be illegal.

See the consultation of HR auditor Elena Ponomareva on dismissing a bad employee:

Legal grounds for dismissal

All of the above options for dismissing an employee are absolutely legal if you properly think through the algorithm of actions, collect the necessary evidence and formalize Required documents(acts, explanatory notes, reprimands). In this case, you must be guided by the Labor Code - when recording in the work book, you must indicate the article under which the relationship with the employee was terminated:

• desire of the employee - Article 77 paragraph 3 (issues of application in Article 80);
• failure to comply with discipline – Article 81, paragraph 5;
• certification – article 81 clause 3;
• single gross violation – Article 81, paragraph 6;
• changing the terms of the contract - Article 77, Part 1, Clause 7 (issues of application in Article 74);
• dismissal during a probationary period – Article 71;
• staff reduction – Article 81, paragraph 2.

It is important to remember that the Labor Code protects the rights of the employee, and the employer’s decision can be challenged in court. When dismissing, you need to think through all actions so that they do not go beyond the law and are justified.

Dismissal of an employee during a probationary period

Most organizations hire a new employee under the condition of a trial period. This is necessary to ensure that professional suitability employee and his ability to cope with the task.

The employer has the right to terminate the contract before the end of the probationary period. At the same time, he must inform the employee about this in writing. This must be done at least 3 days in advance and indicate the reasons. In this case, there is no need to pay severance pay or negotiate with the trade union body.

In order to legally dismiss an employee who has not completed the probationary period, the following conditions must be met:

1. The probationary period must be specified in the contract. It is important to remember that it is limited and cannot be applied to individuals (Article 70 of the Labor Code).
2. During the test, the employee’s manager must draw up documents characterizing the employee.
3. State the decision not to pass probationary period in a written form.
4. Warn the employee in writing in advance about failure to pass the test - at least 3 days in advance. This must be done in writing and indicating the reasons.
5. Fire the employee when the notice period expires. It is possible to resign at your own request.

The intricacies of dismissal if the probationary period is not completed are discussed in detail in this video:

Dismissal due to staff reduction

An employer has the right to dismiss an employee due to staff reduction. This is allowed only in cases where it is impossible to transfer the employee to another vacant position, which he can occupy according to his state of health and qualifications.

To dismiss due to staff reduction, it is important to follow the following algorithm:

1. Issuing an order to reduce staff.
2. Definition preemptive rights to keep certain employees at work.
3. Written notice to laid-off employees at least 2 months in advance.
4. Notify the employment service at least 2 months in advance. If there is a mass dismissal - 3 months in advance.
5. Written notice to terminated employees vacancies ah at the enterprise that they can occupy.
6. Receipt from employees written refusal from vacancies. If the employee agrees, he is transferred to a new position.
7. Dismissal as usual.

The employer's procedure for dismissing an employee due to staff reduction or in connection with the liquidation of the enterprise is described in this video:

Step-by-step instruction

The algorithm for dismissing employees depends on the reason for terminating the employment contract. Each case has its own nuances. The procedure must be carried out strictly in accordance with the Labor Code, otherwise the dismissal may be considered illegal. General procedure action is as follows:

1. Prepare documents that may become grounds for dismissal.
2. Prepare a dismissal order.
3. Familiarize the employee with the order within the prescribed time frame. The employee must sign.
4. Make an entry in the work book and familiarize the employee with it against signature.
5. Make an entry in the personal card (form T-2) - the employee must be familiar with it, and must sign for it.
6. Issue a work book.
7. Pay all amounts due.

It is important to remember that if an employee is temporarily disabled, then he cannot be dismissed at the initiative of the employer at this time, even if the dismissal process was started before registration sick leave. If the dismissal occurs at the request of the employee, then it is formalized on the day specified in the application.

Which employees cannot be fired without their desire?

There are many possible and absolutely legal reasons for dismissing employees, but there are situations when dismissal is possible solely at their own request. The conditions limiting the employer are as follows:

• Temporary disability. Proof of sick leave is required.
• Vacation of any kind - extraordinary, without pay, .
• Pregnancy. An exception is the liquidation of an organization.
• Guardians, single parent, adoptive parents, if the child is under 14 years of age (if disabled, then up to 18 years of age).
• Mothers raising children under 3 years of age. An exception to this and the previous paragraph is the liquidation of the organization or the commission of a crime.
• Trade union worker.
• An employee authorized by the collective for collective bargaining.
• A person participating in a collective dispute.

If an employer dismisses an employee on this list, then when going to court, he will be obliged to reinstate him in his previous job and compensate for the forced downtime and legal costs.

If it is necessary to dismiss an employee due to staff reduction, and there are several people in such a position, then the choice falls on the employee who has lower qualifications and shows less productivity. However, there are exceptions when an employee purchases benefits if he:

• has at least two dependents in their care;
• is the sole breadwinner for the family;
• earned Occupational Illness or was injured in this organization;
• without interrupting production, he improved his qualifications in this organization (sent by the employer);
• has a disability for participation in hostilities (defense of the Fatherland).

An employer who wants to fire an unnecessary employee must remember that the latter’s rights are protected by the Labor Code. It is important to follow the dismissal procedure, without violating deadlines and completing all documentation in a timely, correct and adequate manner.

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An analysis of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), namely Chapter 13 “Termination of an Employment Contract,” shows that the employer can take the initiative to dismiss an employee in a fairly limited number of cases (Articles 71, 81, 278 of the Labor Code of the Russian Federation). But in general, termination of an employment relationship without the will of the employee is impossible. In this regard, opinions are often expressed that employers are unreasonably infringed on their right to dismiss an employee they “don’t like.” However, the subjective criterion in assessing the personality, and not the work of the employee and his business qualities is purely discriminatory. Moreover, the employer, as more strong point labor relations, has all the tools to motivate and stimulate an employee.

Let's consider the full set of grounds for dismissing an employee that an employer can try to use if he wants to get rid of an unwanted “personnel”.

"At your own request"

In practice, most often, employees are forced to resign at their own request (clause 3 of article 77, article 80 of the Labor Code of the Russian Federation). For this purpose they are used various methods: from psychological pressure to the imposition of unreasonable disciplinary sanctions with the threat of dismissal “under the article” in case of disagreement “to quit in an amicable way.” Let's leave the ethical and professional aspect and analyze the legal component of such actions.

As the Plenum of the Supreme Court of the Russian Federation explained in its resolution of March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation", termination of an employment contract at the initiative of an employee is permissible in the case where filing a letter of resignation was an exclusively voluntary expression of his will. If the plaintiff claims that the employer forced him to submit a resignation letter of his own free will, then this circumstance is subject to verification and the responsibility to prove it rests with the employee. Most often, when considering this category of cases, witness testimony is used as evidence of forced expression of will.

Arbitrage practice in such cases is quite extensive, and in most cases the cases are decided in favor of the employee. Therefore, employers create situations that would allow them to terminate the employment contract at the initiative of the employer.

Worker test

First of all, we are talking about dismissal due to unsatisfactory test results (Article 71 of the Labor Code of the Russian Federation). In order for dismissal under Article 71 of the Labor Code of the Russian Federation to be lawful, the employer is obliged to record the interim results of the employee’s work during the probationary period and periodically issue control tasks, evaluate them.

In practice, many employers are confident that during the probationary period they are given the opportunity to terminate the employment relationship with the employee at any time, formally citing failure to pass the test. In this case, in the absence of documents substantiating the unsatisfactory result of the test, it is very likely that the employee will be reinstated if he files a corresponding claim.

Sometimes there are funny cases when employers recognize that an employee who has been repeatedly rewarded for high performance in work and to whom gratitude was expressed during the test period has failed the test.

"According to the article"

As for Article 81 of the Labor Code of the Russian Federation, attention should be paid to the most common grounds that an employer tries to use to dismiss an employee who does not agree to leave his place.

Of course, it is unlikely that in order to terminate the employment relationship with an employee, the employer will decide to liquidate the organization or terminate its activities as individual entrepreneur(clause 1 of article 81 of the Labor Code of the Russian Federation). It seems that a change of ownership of property (clause 4 of Article 81 of the Labor Code of the Russian Federation) will also not be carried out for the purpose of dismissing an employee who does not suit the employer, therefore this basis will not be considered.

However, reducing the number or staff of employees is used very often for this purpose (Clause 2 of Article 82 of the Labor Code of the Russian Federation).

Reduction

Employers should keep in mind that this solution to the issue seems successful only at first glance. Firstly, the reduction entails significant financial costs in the form of severance pay (Article 178 of the Labor Code of the Russian Federation). Secondly, reduction involves the implementation of a rather complex procedure (Articles 179, 180 of the Labor Code of the Russian Federation), including compliance with the employee’s right to claim vacant position in this organization. Thirdly, it is necessary to take into account the requirement about the real nature of the reduction. This means that positions that have been eliminated should not be reintroduced.

Please note that the employer can enter into staffing table new positions both simultaneously with the notification of the employee about the reduction, and after his dismissal, if this does not detract from the real nature of the reduction being made. If the position introduced after the dismissal of an employee is similar to a reduced position, then in the event of judicial trial the court will definitely reinstate the employee.

Position mismatch

In order to dismiss an employee due to inadequacy of the position held or the work performed due to insufficient qualifications, it is necessary to carry out a special procedure - certification (clause 3 of Article 81 of the Labor Code of the Russian Federation). At the same time, few people realize how labor-intensive and costly this procedure is.

First of all, to conduct certification, an organization must have a Regulation on Certification, which determines which categories of employees, with what frequency and in what forms are certified for suitability for the position held. The employer adopts this Regulation independently, on the basis of Article 8 of the Labor Code of the Russian Federation. The employee must be familiarized with the Regulations against signature. It is also desirable that the employment contract contains a reference to this Regulation.

The tested employee will not be able to challenge the results of the certification if it was carried out by external specialists, whose opinion will be as objective as possible. And only upon receipt of the conclusion certification commission, which will reflect the relevant conclusions about the insufficient qualifications of this employee, the employer will have the right to terminate the employment contract with the employee under paragraph 3 of Article 81 of the Labor Code of the Russian Federation. However, the employer must first offer the employee another job (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower paid job), which the employee will be able to perform taking into account his state of health (Article 81 of the Labor Code of the Russian Federation).

Arbitrary conduct of certification without the relevant Regulations, or in relation to only one specific employee, or in violation of the deadlines and procedures will be illegal. In these cases, it is very likely that a legal dispute will arise with the employee and, most likely, the case will be resolved in his favor.

Failure to fulfill labor duties

Particular attention should be paid to dismissal for repeated failure by the employee to comply without good reasons labor duties (clause 5 of article 81 of the Labor Code of the Russian Federation).

Dismissal under this clause is a dismissal in accordance with the order of imposition disciplinary action(Articles 192, 193 of the Labor Code of the Russian Federation). And here it is allowed greatest number errors.

Firstly, an employee is often punished for failure to perform duties that were not covered by his employment contract. For example, a legal adviser got a job at the head office of a holding company with 30 people to provide legal support for its activities. With this volume job responsibilities a highly qualified employee managed successfully and in a timely manner, therefore had the opportunity to take frequent smoke breaks and conduct conversations in his own way mobile phone And so on. In this regard, employers often conclude that the employee must be “overloaded” with work, since during the “paid” time he has no right to be distracted by anything other than work. Therefore, the employee is unilaterally obliged to engage in, for example, legal services branch network. At the same time, neither the obligation to standardize labor nor the requirement of Article 60.2 of the Labor Code of the Russian Federation on the establishment of additional payments are often taken into account. Naturally, the employee ceases to cope with the unreasonably high volume of work, and therefore disciplinary sanctions begin to be imposed on him and, ultimately, he is fired. If such an employee goes to court, he can easily prove that the employer forced him to perform work that was not stipulated by the employment contract, accordingly, a violation official duties established by the employment contract is out of the question. Therefore, the court recognizes the illegality of the disciplinary sanction in the form of dismissal.

Secondly, sometimes punishment follows for violation of duties that under no circumstances are labor duties, for example, for violation of the Code corporate ethics and Dress Code Regulations. These internal regulations of the employer are not local regulations(Article 8 of the Labor Code of the Russian Federation) and do not contain standards labor law, mandatory for execution. In such cases, only influence through informal methods developed with the help of HR management is permissible.

Such circumstances will be the basis for recognizing orders to impose penalties as illegal; accordingly, the sign of “repeated punishment” necessary for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation will be lost.

Absenteeism

Dismissal of an employee for absenteeism is also “popular” (subclause a, clause 6, article 81 of the Labor Code of the Russian Federation). Most often, the employer recognizes absenteeism as a completely legitimate absence from work, for example, when an employee asked to take time off from work, and did so verbally.

In order to “leave” an employee, forged absenteeism reports, memos and other documents are also drawn up. Of course, in such circumstances it is very difficult for an employee to prove that he is right, but the employer must understand that such acts are criminally punishable.

One of the cases considered by the Supreme Court of the Russian Federation is noteworthy in this regard. Thus, the head of the cash settlement center (CSC) was found guilty of falsifying evidence on civil case, which was in production district court, according to a claim by a group of workers against the RCC for reinstatement and recovery wages during forced absence. In order to “win the case,” he prepared and presented to the court through his representative, a lawyer, documents he falsified: photocopies of four fictitious letters dated July 15, 1994. The servants of Themis convicted the “great schemer” under paragraph 1 of Article 303 of the Criminal Code of the Russian Federation.

Drunk

Almost the same can be said about dismissal under subparagraph b of paragraph 6 of Article 81 of the Labor Code of the Russian Federation for the employee’s appearance at work in a state of alcohol, narcotic or other toxic intoxication. If such intoxication did not actually occur, then all the drawn up acts will be forged.

Thus, it is almost impossible to dismiss a qualified employee who is properly performing his duties at the initiative of the employer (of course, with the exception of the dismissal of a manager legal entity according to paragraph 2 of Art. 278 Labor Code of the Russian Federation).

Agreement of the parties

If the employer really wants to fire an employee, then the only way in such a situation is to agree on conditions for terminating the employment relationship acceptable to all parties in accordance with paragraph 1 of Article 77 and in accordance with Article 78 of the Labor Code of the Russian Federation. These norms require the signing of an additional agreement (see Example 1) to the existing employment contract, which determines the date of its termination (Article 78 of the Labor Code of the Russian Federation).

It should be borne in mind that the employee must agree to resign on this basis. Otherwise, he will simply refuse to sign the additional agreement. Therefore, such an additional agreement very often includes a clause on the payment of compensation to the employee.

Note that the legislation does not provide for mandatory compensation upon termination of an employment contract under paragraph 1 of Article 77 of the Labor Code of the Russian Federation. This condition should be established by agreement of the parties, but it is clear that a conscientious employee has the right to count on certain benefits for himself. Although this is precisely what constitutes an obstacle for the employer to enter into the contractual process.

Many managers believe that making concessions to an employee means losing a certain amount of authority. This psychology is very destructive for a manager. But in case of dismissal by agreement of the parties, and even more so in case of dismissal accompanied by the payment of “compensation”, the employee will not have a chance to be restored to his previous place of work by going to court. Judicial practice in this category of cases very convincingly demonstrates this. The only “clue” in this case is a violation documentation, however, it is doubtful that an employee who received an amount that suits him upon dismissal will initiate legal proceedings.

At the same time, employers need to know all the nuances of dismissal by agreement of the parties.

Requesting an application for this is not required at all, since the parties sign a bilateral document - an additional agreement. In practice, violations of the following nature occur: in the order to dismiss an employee, “the agreement of the parties, clause 1 of Art. 78 of the Labor Code of the Russian Federation,” although there is a reference to the employee’s statement as a documentary basis. This is an error. In fact, there is no agreement between the parties as such under such circumstances, but rather voluntary dismissal with an incorrect reference to the clause of the Labor Code. The documentary and regulatory grounds for issuing an order must correspond to each other. Therefore, in an order for dismissal by agreement of the parties, it is necessary to refer only to the additional agreement.

Sometimes it is mistakenly believed that an agreement between the parties can be formalized as a statement from the employee, followed by the resolution of the employer’s representative being affixed to it. The arguments are given as follows: since the text of the document shows the will of both parties to terminate the employment relationship due to this basis(Clause 1 of Article 77 of the Labor Code of the Russian Federation), then the form of such a document has no legal significance. This is a wrong point of view. An employee’s statement, in essence, is a unilateral act of expression of will, therefore labor legislation and provides for the possibility of withdrawal of the application by the employee.

Any document that mediates the mutual, reciprocal will of the parties is drawn up as an agreement or an addition (annex) to it. It is not for nothing that the legislator refused to conclude an employment contract “at the request of the employee” and obliged to conclude employment contracts in writing, in the form of a separate document (this rule was introduced in the Labor Code by Law of the Russian Federation of September 25, 1992 No. 3543-1).

A bilateral document signed by the parties can no longer be revoked unilaterally; its cancellation must also be carried out by agreement of the parties (see paragraph 20 of the Plenum resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). Therefore, if the employee has signed such a document, the employer can be sure that on a certain date the employment contract with the employee will be guaranteed to be terminated.

Thus, dismissal by agreement of the parties is an effective tool for a civilized separation of an employee and employer based on psychological incompatibility. And the use of this tool must be ensured by qualified specialists personnel service and HR services that help reach a compromise in a difficult management situation.

1 Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 18, 1997 (Bulletin of the Supreme Court of the Russian Federation, 1998, No. 10).