How to fire an employee in Ike. How to properly fire an employee according to the law - legal subtleties. Dismissal of a pregnant woman without her consent

516 0 Hello! The manager and personnel officer of any organization must know how to fire an employee legally. The article also discusses cases and procedures for dismissal in various circumstances: pregnant women, pensioners, missing and deceased workers, employees on probation, and layoffs.

How to properly dismiss an employee in accordance with the law

There are several reasons for dismissal according to the law:

Evading labor discipline: absenteeism, appearances drunk.
Based on the results of certification. The basis for dismissal is the decision of the certification commission on non-compliance. Upon dismissal, the manager will have to offer a position with lower qualifications.
At the employee's initiative.
Ignoring labor regulations, resulting in serious consequences and material damage for failure to comply with safety regulations.
Liquidation of an enterprise or reduction of staff.
For absenteeism when absent from work without a valid reason for more than 4 hours.
If a criminal case has been opened against the financially responsible person.
Loss of trust, selfish attitude when performing duties. Employees such as an accountant are not subject to dismissal, since they do not receive money or other material assets.
For an immoral offense. Applies to teachers and educators. Such actions include obscene language and appearing drunk. The degree of immorality is determined by the employer.
For disclosing trade secrets, personal information of other employees, submitting false documents.

Sometimes they try to fire unsuitable employees. The legal side of the issue during registration should be carefully thought out.

The employee is protected more than the employer. For the slightest violation of the procedure, you can challenge the decision in court. You will have to pay a penalty.

There are types of dismissal for which the reasons are not specified in the law, for example, personal hostility of a boss towards a subordinate, uncivil behavior towards other members of the team. Incriminating evidence begins to accumulate, which is difficult to refute. There are more serious reasons - disclosure of trade secrets, personal information of the employee, submission of false documents. One of the reasons is violation of labor protection rules and non-compliance with safety regulations, which resulted in severe consequences, for which administrative punishment is provided.

Dismissal options

Labor legislation regulates three methods of exemption from labor activity:

at the initiative of the employee himself;
by order of the manager;
by mutual agreement.

The stages of dismissal require mandatory conditions: the situation must be spelled out in the Labor Code of the Russian Federation, and the procedure for registration must be followed. Thus, when staffing is reduced, the employee must be notified 2 months in advance so that he can find a new place of work. If you are dismissed for failure to comply with labor discipline, you must receive an explanatory note and transfer the case to the labor dispute commission or trade union committee.

Please note: a month after the commission of an offense it is impossible to accuse and punish.

If the misconduct led to an administrative or criminal case, the offender cannot be dismissed until a court decision. He can be transferred to another place where he will not be able to commit such violations (fraud, forgery).

How to fire an employee at your own request

This is the most common way to terminate labor relations. To implement this, a letter of resignation is written and the date is indicated. The employer grants the request.

There is only one difficulty - the period of compulsory service is the prescribed two weeks from the date specified in the petition.

upon enrollment;
moving to another place of residence;
when transferring a military man's husband to a new duty station;
when leaving abroad.

They must attach a certificate from the university and a transfer order to the application.

Vacationers are released without work if the resignation letter was written two weeks before leaving the vacation. Calculate such an employee and issue work book it is necessary within the period specified by law - on the day the order is signed.

Employees signed up for a fixed-term contract or on a probationary period must work for three days.

You can terminate the contract at any time, regardless of its duration. There are no legal grounds to interfere. The main thing is to work out the allotted time and hand over the cases.

Dismissal of an employee at the initiative of the employer

The rules are prescribed by law. This can be done when an institution is liquidated or staff is reduced. In these cases, the main thing is to notify the employee within the established two-month period. You can dismiss an employee due to redundancy if the following procedure is observed:

Give two months' notice.
Submit to the employment center information about persons subject to layoffs, indicating their positions (three months in advance).
Issue an order based on Article 81 paragraph of the Labor Code.
Make an entry in your work book and personal card.
Pay all due funds.

When liberation occurs at the request of only one party - the leader, this is not enough. You need to have reasons: documented facts of violations, explanatory notes. In their absence, dismissal may not take place.

At the initiative of the employer you can be fired for repeated violation of labor discipline, as well as failure to fulfill your job responsibilities. This is possible if it is specified in the employment contract, and the employee is familiar with them (there are signatures of him and witnesses). Be sure to attach the act of committing the offense. Not every violation of discipline is subject to dismissal. To begin with, you can give a reprimand, draw up an act, for example, if you are late.

An employee can be fired for absenteeism if they commit only one offense. The basis for this is not being at work for more than 4 hours in a row without a good reason. . The algorithm of action is as follows:

A misdemeanor report is drawn up.
Explanatory.
Documentary evidence of absence: certificate from the traffic police, medical institutions, court summons.

If there are no reasons or explanations, this is considered a violation of labor discipline, and on the basis of Article 81 of the Labor Code, a dismissal order is issued, an entry is made in the work book and a full payment is made. If the procedure is violated, the offending person has a chance to recover through the court and receive monetary compensation for forced absences.

Psychologists give advice on how to smooth out conflict situation upon dismissal by the employer: it is better to communicate the breakup one on one, clearly explaining the reason. Need to find Nice words to the offending employee, to note his past achievements. If possible, help with further employment.

Civil servants may be forcibly dismissed due to concealment of income and filing a false declaration about it, as well as due to the presence of foreign deposits. The reason may be a violation of the ethics of a civil servant in dealing with citizens, ignoring their requests. Management has its own reasons for terminating an employment contract:

abuse of power, causing material damage;
change of company owner;
single violation of official duties or procedures.

By agreement of the parties

An agreement between the parties is an option when the employer and employee peacefully agree to sever relations when certain conditions. You can quit at any time, you don’t have to work, but you can’t change your mind. This is determined by Article 78 of the Labor Code of the Russian Federation.

If the parties agree, the order is issued quite quickly. If the employer offers this option for terminating the contract, he may promise to give good recommendations or pay monetary compensation. If consent is not obtained, you can proceed to tough measures and dismiss the intractable employee under the article if he already has violations of labor discipline and comments. Sometimes, when accepting an application for a job, the employer asks you to write it with an open date. If you agree, you can make changes to the employment contract.

Dismissal in different circumstances

Is it possible to fire an employee who is on vacation, on a probationary period, or under other circumstances related to his personal life?

It is prohibited to fire an employee who is on sick leave or on vacation. Even in case of staff reduction or for violation of discipline. There are exceptions. When an enterprise is liquidated, everyone is fired (including those on sick leave or vacation). In this case, he will not have to work for two weeks, but he will be required to pay the sick leave until the end. The issue of dismissing an employee can be resolved only after leaving sick leave.

Dismissal of a pregnant woman

Even if there are other reasons (disciplinary offense), it is impossible to fire a woman who is expecting a child. It is allowed if she was accepted to perform the duties of a temporarily absent employee. If the company is liquidated and it is impossible to provide another place, you have to fire. For pregnant women, the probationary period and work period are canceled. Confirmation of the fact of pregnancy is a certificate that must be submitted every three months. If the woman refuses, the ban on dismissal is lifted.

Dismissal of a single mother

Without her consent, the contract cannot be terminated until the child reaches the age of fourteen. Only in case of repeated violation of labor discipline with penalties can the contract be terminated. This also applies to women who adopted children without a spouse. If the institution is liquidated, she is also subject to dismissal.

A woman with a child under 14 years of age who is not single can be released on all grounds under the legislation of the Russian Federation.

Dismissal during probationary period

If the employer is not satisfied with the test results, the contract can be terminated without waiting for the end of this period. The employee should be notified about this three days in advance. written notice, indicating the reasons for this decision. He must sign for receipt of the notification; if he refuses, an act is drawn up, and a registered letter is sent to the employee at the address of his actual residence. You can prove your inadequacy for the position held using the following documents:

reports from the boss;
complaints from clients, colleagues;
act of non-compliance with production standards;
reports from the employee himself on the implementation of the task;
documents collected on the fact of a disciplinary violation.

Dismissal of a pensioner without his consent

There are no benefits for older people. They do not have to work the prescribed period of two weeks. The reasons for releasing pensioners are as follows:

liquidation of the organization;
conclusions of the certification commission about non-compliance;
violation of norms and rules under the Labor Code of the Russian Federation;
reorganization measures;
misconduct, penalties;
health condition that interferes with the performance of any functions (diagnosis data, medical report are needed).

The age of a pensioner cannot be a reason for dismissal.

He is entitled to two weeks of benefits after the order is issued.

Dismissal of a missing and deceased employee

Draws up in accordance with Article 83 Part 1 of the Labor Code of the Russian Federation. If the death did not occur during work, the reasons are determined by the internal affairs bodies. Relatives provide the death certificate to the production, and an order is issued there. Death that occurred in work time, are investigating. If it was an accident, they find those responsible and bring them to justice. If the death occurred on a business trip, and this is confirmed by the results of the investigation, compensation is paid to the family of the deceased. The grounds for dismissal are:

death certificate;
a court conclusion that the citizen is declared dead;
decision of the judicial authorities to declare a person missing.

Without these documents, the order will not be issued. A request is submitted to law enforcement agencies for a missing person if nothing has been known about him for a year and he has not been at his place of residence for five years or more. While the search is ongoing, the employee cannot be fired; his duties are temporarily performed by someone else.

Features of dismissal due to reduction

Under such circumstances, dismissal cannot be avoided. It is impossible to challenge such a reason in court (if all the rules are followed). Two months before signing the order, the employer warns and pays benefits equal to two salaries.

The Code determines the criteria by which persons are selected for redundancy. The right to stay is enjoyed by those who have dependents (children, parents), as well as those who are the only breadwinner in the family. Benefits for people who have been seriously injured or Occupational Illness at work. You can transfer the employee to a position of equal pay or accept the agreement of the parties and pay compensation. This situation is complex, often requiring the help of psychologists. A specialist can provide moral assistance, and the administration will help resolve the issue of further employment.

Consequences of illegal dismissal: what the employer may face

An employee can express his disagreement and challenge the action of management in the labor dispute commission. Management may not agree with the commission's decision. In this situation, you will have to contact the prosecutor's office or court. The prosecutor's office is obliged to check all the grounds and legality of the employee's release. If a decision is made in favor of the plaintiff, the court will help not only to recover, but also to receive monetary compensation for moral damage and absenteeism due to the fault of the administration.

The law requires the issuance of documents confirming dismissal:

a copy of the employment contract that was drawn up upon admission;
order to suspend its operation;
a certificate of contributions to various funds during employment;
certificate of period of work.

If an employee is fired illegally, the employer is obliged to hire the previously dismissed person. The employer faces punishment in the form of a fine for errors in the employment contract or its absence. A fine of up to ten thousand rubles is imposed on the director, entity- up to one hundred thousand. The fine is imposed on the company and the director at the same time. In addition, for illegal dismissal, the administration is obliged to reinstate the employee and pay for forced absence. Tax authorities will also fine you and add taxes if there were no legal registration, and the salary was given in an envelope.

Dismissal is not a dramatic ending to a relationship with an employee, but primarily a legal procedure. Therefore, this procedure must be carried out competently and in compliance with all laws. There are several reasons why you can legally fire an employee.

Reason No. 1. Liquidation of the enterprise or reduction of staff

In these cases, dismissal or transfer to another job is inevitable. And the mere fact of dismissal for such objective reasons can hardly be appealed in court. The main thing is to take into account all the legal subtleties. Firstly, two months before the proposed dismissal, the employer is obliged to notify the employee in writing about it. Secondly, the dismissed employee must be paid a benefit in the amount of two months' salary. The amount can be equal to three to five salaries or more by agreement. Top managers are sometimes paid up to twelve salaries as compensation.

The Labor Code defines the principles by which staff reductions should be made. Of two employees who are equal in qualifications and productivity, the one who has two or more dependents in the family, or the one who is the only working member of the family, must be retained in the company. Preference is also given to employees who have been injured or have an occupational disease at work. If you offer a redundant employee a transfer to another position, then this position must be of equal value. The easiest way to resolve all disagreements and disputes is by paying compensation.

There is nothing worse for an employee than a situation where he thinks every day about whether he will be laid off or not. Therefore, staff reductions must be carried out quickly. And the main thing is to clearly outline the reasons for the choice of dismissed employees, so that the team has no doubts about the objectivity of management. It is advisable to provide moral support to those being laid off - invite a psychologist for a conversation, hold a consultation with the HR manager about further employment.

Alena Alferova, Deputy Director for Recruitment of the ANKOR recruiting company: “Dismissal must be carried out by legal means. Good reasons for dismissal may include non-compliance with work regulations or failure to fulfill job description, but only if labor rules and job descriptions actually exist in the organization. It’s a common situation where an employee is laid off due to a reduction in staff, but you need to act honestly and really close the wages of the laid-off employee.”

Reason No. 2. Dismissal of one's own free will

Ideally, all cases of dismissal that are not included in the first point should be included under the second point. Dismissal by at will or similar dismissal by agreement of the parties has many advantages. Firstly, cases of voluntary dismissal cannot be appealed in court, and you are not threatened with reinstatement of the employee and payment of compensation. Secondly, voluntary dismissal with the consent of the parties can be carried out within a few days.

To persuade an employee to resign of his own free will, you need to show him the benefits of this path - promise to write a recommendation for new job, pay compensation. If these offers do not appeal to the employee, it is worth telling him about the possible negative consequences his intractability. Threaten that you will fire him for a “bad” article - for failure to comply with the requirements of the job description, for disciplinary violations. However, these threats should not be unfounded - you must have evidence of the employee’s negligence, for example, acts of failure to fulfill work duties. Collecting such acts takes time, but almost completely insures the employee against reinstatement through the courts.

Reason No. 3. Failure to fulfill labor duties or violation of labor discipline

Both must be documented. Dismissal for failure to fulfill job duties is possible only if, when hired, the employee signed the list of job responsibilities. If any items from this list are not fulfilled, the employee must be reprimanded and a report drawn up. If the employee refuses to sign it, then you need to obtain the signatures of two witnesses who will confirm the failure to fulfill duties.

It is important to consider that, for example, being late is not a reason for dismissal. They can serve as such a reason only if no one except the person being fired is late, or if lateness is unacceptable for this type of work. In other cases, if the employee goes to court, dismissal will be recognized as too severe a punishment for being late and the employee will be reinstated.

Yulia Belova, head of the HR department, SVsoft Novosibirsk: “Legal relations are established already when hiring, therefore the contract, job description and internal rules must contain all the basic provisions about the employee’s activities. Accordingly, the employer must have objective reasons for dismissing the employee, or he must wait until the end of the contract and warn the employee in advance about the non-renewal of the contract. When dismissing an employee, you need to explain in a conversation with him the reasons for the dismissal, which must be clear, understandable and unambiguous. We must not forget that everyone reacts to dismissal differently, so a certain percentage of people will still consider the situation unfair.”

The situation is different with absenteeism - even a one-time case of absence from work allows you to fire an employee. For some professions, theft is often a reason for dismissal. An employee can be fired if he stole property worth more than 100 rubles, and the court confirmed the fact of theft.

An employee can also be fired immediately after he comes to work under the influence of alcohol or drugs. But to do this, you need to get a certificate from a narcologist who will confirm your state of intoxication. The problem is that the violator can simply refuse a medical examination and, according to the law, it cannot be forced. In such situations, some employers resort to cunning and call an ambulance for examination, for example, due to the alleged poisoning of an employee. Also, if an employee behaves inappropriately, fights, or hooligans, you can call the police, and they will conduct an examination. A medical examination without a person’s consent is also carried out if he is found to have mental disorder and he poses a threat to others.

The basis for dismissal may be the conclusion of the certification commission about inadequacy for the position held. However, certification is an expensive procedure, and it is quite difficult to prove that it was carried out according to all the rules. In addition, employees who have not passed the certification cannot be fired, they can only be offered another position. If they are not satisfied with the offer, they can quit.

When there's no reason

Some reasons for dismissal are not specified in the labor code. It may be obvious to the employer that the employee, for example, does not accept the company’s corporate culture and is disloyal to it, but there are no formal reasons for dismissal. There are also situations when the boss has a personal dislike for an employee or when another candidate appears in his place. One way or another, real incriminating evidence is collected against the undesirable. Colleagues record all his minor delays and mistakes, and then it is almost impossible to prove that your work was not so bad.

Evgeny Danilichev, lawyer at the Business Advocate law firm: “The Labor Code of the Russian Federation relatively recently introduced such grounds for dismissal as “the employee submitting false documents to the employer when concluding an employment contract.” A person looking for a job tends to embellish his abilities, and some employees present documents to the employer that do not correspond to reality, that is, forged.

There is another reason: “disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including the disclosure of personal data of another employee.” At the same time, the concept of an employee’s personal data is quite broad, and theoretically an employee can be fired for telling someone the home address of another employee. If this information is still included in the list of “trade secrets” of the enterprise, then the chances that the talkative employee will not be reinstated in court are very high.”

Sometimes one less civilized way is used to guarantee the painless dismissal of employees. Already when hiring a person, they are asked to write a letter of resignation with an open date. If something happens, the employer simply sets the required date and fires the employee. One can imagine how speechless and driven into a corner the staff agrees to such conditions.

Another way to put pressure on an employee is to threaten that his credentials will be transferred to the military registration and enlistment office. Some employers do not even hesitate to do just this with young male employees who do not want to quit.

Who's right and who's wrong

This is defined differently in each situation. The employer is not Charitable organization and cannot pay wages simply out of the kindness of his heart. Therefore, it is necessary to fire unsuitable employees. At the same time, it is important to select a replacement for them in advance, as well as carefully draw up the legal side of the issue. Ideally, you need to consult with a labor law specialist.

Nowadays there are more and more employees who understand law and are able to notice in the dismissal procedure the slightest violations. If they go to court, and the court proves that they are right, then the employer will have to pay wages for the downtime, although only if the employee received a “white” salary before dismissal. You will also have to pay compensation for moral damage and reinstate the employee. In approximately half of the cases, the court sides with the employee, and the employer loses money. Therefore, today most employers pay compensation and formalize dismissal by agreement of the parties.

From a legal point of view, the employee is protected even to a greater extent than the employer. But given our low legal literacy and high cost trials Most fired workers do not even risk going to court. Employers should not take advantage of their impunity and choose morally dishonest dismissal options. While observing the labor code, do not forget about the code of honor.

Irina Kurivchak

It is easy to fire an unsuitable employee. It is much more difficult to find a legal justification for this. What legal options does it provide? Labor Code employers who are faced with the task of getting rid of ballast in the form of ineffective employees?

Natalya Petrykina, specialist in corporate and labor law

First of all, you need to understand what an ineffective employee is and what this definition means when translated into the language of the Labor Code.

The concepts of “efficiency” and “ineffectiveness” of personnel are used by HR managers as a complex characteristic, consisting of an assessment of the degree of competence, productivity, initiative and loyalty of employees. In legal language, these concepts correspond to the terms “qualification” and “discipline”. It follows that if the performance or behavior of an employee does not meet these two criteria, he may be fired. Let's talk in more detail about each of the possible grounds for dismissing an employee who works ineffectively.

Dismissal if not passed probationary period

A probationary period is a measure aimed at identifying the compliance of the professional qualities of a newly hired employee with the position he occupies. The probationary period, as a rule, lasts up to three months, and during this period the employment contract with the subject can be terminated at any time. Please note that the probationary clause must be included in the employment contract (and also, preferably, in the order and application for employment). Otherwise, the employee is considered hired without a probationary period and, of course, it is impossible to dismiss him on the basis of failure to pass the test.

If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test.

Termination of an employment contract by agreement of the parties

This is a very convenient and conflict-free way to terminate an employment relationship, provided for by the Labor Code. Its essence lies in the fact that the parties agree to terminate the employment contract within a certain period chosen by them. This method is convenient to use when both parties are determined to terminate the employment relationship, and the date is chosen taking into account their mutual interests (for example, when a replacement for a resigning employee is selected or when he finds a new place of work).

Termination of a fixed-term employment contract

If a fixed-term employment contract is concluded with an employee who turns out to be ineffective, then it can be terminated easily and simply upon expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before dismissal.

Dismissal due to reduction in number or staff of employees

It is tempting for an employer to use this rule to fire all unsuitable workers under this guise at once, but this most likely will not be possible. First of all, the procedure for implementing this norm of the Labor Code is quite complicated. It is necessary to give written notice to dismissed employees at least two months in advance. You must first try to employ them in other available vacant positions in the organization. Upon dismissal, the employer is obliged to pay severance pay and the average monthly salary for the next two months. Despite the fact that employees with the highest qualifications and productivity have a priority right to retain a position, with equal indicators, preference should be given to family members and certain other categories of personnel. Taking into account all of the above, it is obvious that a reduction in numbers or staff is not The best way get rid of ineffective employees.

Dismissal of an employee due to health reasons or lack of qualifications

Dismissal on this basis is possible only if unsatisfactory health status is confirmed medical certificate, and insufficient qualifications - by certification results. Please note that you cannot fire an employee on the grounds that he often takes sick leave. Dismissal will require a medical certificate confirming the employee’s persistent inability to perform a specific type of work. Inconsistency with the position held due to insufficient qualifications can only be confirmed by certification results. Meanwhile, the Labor Code does not contain general rules its implementation. However, for certain categories of workers, industry rules for conducting certification have been approved, and they can be used as a guide. Three fundamental points are important here. Firstly, certifications should be carried out regularly, and not only when there is a need to fire someone. Secondly, the conclusions of the certification commission may turn out to be untenable if the fact of insufficient qualifications due to a short period of time is established. length of service, as well as due to the lack of special education. Thirdly, before dismissing an employee on this basis, the employer is obliged to offer him another job in the organization that is more suitable to his experience and qualifications.

Dismissal of an employee if he repeatedly fails to fulfill his job duties, if he has a disciplinary sanction

This is a good reason for dismissing an employee who is negligent in his duties if management’s patience has run out. To be dismissed on this basis, it is necessary that disciplinary measures have already been applied to the employee within a year. Please note that the existence of disciplinary sanctions must be documented, for which it is necessary to follow the procedure for imposing disciplinary sanctions. Let us briefly recall what it consists of. Firstly, the fact of violation of discipline must be confirmed by a written explanation from the employee. Secondly, the order to impose a disciplinary sanction must be announced against receipt no later than three days from the moment of its signing and applied not later than a month from the date of discovery of the offense.

Dismissal due to a single gross violation of labor duties by an employee

The following actions may be considered a single gross violation of labor duties:

Absenteeism

Appearing at work in a state of alcohol or other intoxication

Disclosure of legally protected state or commercial secrets

Committing theft, embezzlement or intentional destruction of property at the place of work

Violation of safety rules with serious consequences

All these violations are of a rather extreme nature, if we take into account the fact that most often employees, especially highly qualified ones, care not only about the company’s reputation, but also about their own. But if a violation did occur and the employer intends to fire the culprit, the following procedure must be followed. Firstly, the fact of violation of labor discipline must be recorded in writing. Secondly, the guilty employee must be removed from work and, thirdly, a written explanation of what happened must be obtained from him. Only after this can a dismissal order be issued.

Commitment of guilty actions by an employee servicing commodity or monetary assets

This is another reason for dismissing an employee who has proven himself to be inappropriate. the best side. This rule applies only to workers who directly service commodity or monetary assets. The reason for dismissal is the employee’s guilty actions, which give grounds for loss of confidence in him. Such actions may include, for example, receiving payment for services without completing the relevant documents. In addition, if an employee has committed selfish offenses outside of work, the employer still has the right to fire him due to loss of confidence in him.

Termination of access to state secrets

On this basis, an employee who does not have access to state secrets may be dismissed when his work involves the use of information related to it. Please note that if an employee proves in court that in fact his work was not related to confidential information, then the court will decide on his reinstatement.

One-time gross violation the head of the organization of his labor duties

This basis for dismissal can be applied to the heads of not only organizations, but also branches and other separate divisions, as well as their deputies. The manager's labor responsibilities are, as a rule, contained in their employment contracts and the company's statutory documents. The severity of the violation implies, first of all, guilt and significant damage caused.

Termination of an employment contract with the head of the organization in cases provided for by the employment contract

The special position of the head of the organization also implies special measures of responsibility, which are enshrined in the employment contract. Since the prosperity of the company directly depends on the actions of the manager, the basis for dismissing a manager may be his “ineffectiveness,” which is reflected in the employment contract in the form of specific tasks that have not been achieved in practice.

That's how everyone is possible options, available at the disposal of the employer. However, oddly enough, most often they get rid of an ineffective employee with the help of his own statement “of his own free will.” This is justified in cases where the employer, having the opportunity to fire an employee on grounds of guilt, gives him a chance to leave without spoiling the work book with unpleasant wording. In other cases, the manager must remember that an employee who quit “of his own free will” under pressure can go to court. If he wins the case, the employer will have to not only reinstate the employee in his position, but also pay him a considerable amount of compensation.

MagazineForbespublished on his website 10 ways to fire an employee, warning the reader that the moral and ethical side in some cases remains on the conscience of the employer. At the same time, questions arise regarding the technology of these methods of dismissal. In practice, of course, there are many more of them, but TP asked its experts to comment on the most popular ones.

Agreement of the parties (Art. 78 Labor Code of the Russian Federation). It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation. Most often, the reasons for such dismissals are discussed face-to-face, but some cases become public knowledge.

Natalia Plastinina,

The grounds for separation are not bad, but in most cases they require additional material costs. Despite the absence in Art. 178 of the Labor Code of the Russian Federation, instructions on the payment of severance pay upon dismissal by agreement of the parties, long-term practice of solving difficult situation in labor relations showed that the employee agrees to such a “soft, smooth, but not included in his plans” separation only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee upon dismissal on the grounds in question in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties negotiate the amount of this compensation at the level of 2-3 salaries, taking as a guide the amount of severance pay in case of staff reduction. However, in special cases(dismissal of a manager at any level), this amount can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be “caught” on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases represent the dismissal of a truant or an alcoholic in circumstances where the employer was unable to obtain sufficient evidence of employee misconduct and, therefore, was unable to safely apply the grounds for dismissal appropriate to the situation (clause “a”, clause 6, part 1 Article 81 of the Labor Code of the Russian Federation and paragraph “b”, paragraph 6 of Part 1 of Article 81 of the Labor Code of the Russian Federation). The most difficult thing to find agreement with is a category of employees especially protected by law, who cannot be dismissed at the initiative of the employer (during certain periods of their activity) - pregnant women, people with family responsibilities listed in Art. 261 Labor Code of the Russian Federation. These workers, being in a vulnerable state, are so afraid of losing permanent job and you won’t find a new one that refuses to enter into agreements to terminate the employment contract, despite the compensation offered, and if such an agreement is signed, they go to the courts to challenge them due to the defect of their own will.

Thus, in addition to the material side of the issue, this basis has another disadvantage - a high risk of a dismissed employee successfully challenging his dismissal. And practice knows cases where the court declared an agreement to terminate an employment contract illegal due to the lack of expression of the employee’s will on this action (as an example, you can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated June 18, 2012 in case No. 33-156), in which the court, having carefully studied the agreement drawn up by the parties, came to the conclusion that there was no real will of the employee to terminate the employment relationship, but there was only a desire to transform labor relations (the agreement contained the employer’s obligation to rehire the employee in the future). In this regard, the court came to the conclusion that the dismissal was illegal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: disadvantages of dismissal by agreement of the parties:

the employee may not agree to terminate the employment contract, despite the favorable termination conditions offered by the employer;
in most cases, termination on this basis will require the employer to voluntarily pay compensation agreed upon by the parties in the agreement on termination of the employment contract;
practice records high risk challenging dismissal by agreement of the parties due to the employee’s defect of will. Cases of such agreements being declared illegal in judicial practice available.

Anna Ustyushenko,

The agreement of the parties is applied not when the employer cannot find a suitable article in the Labor Code of the Russian Federation, but when the employer soberly assesses the time and financial costs that dismissal “under the article” may entail, if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best option termination of the employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the simplest to formalize, and thirdly, this dismissal is the most “viable” if it is contested by the employee.

I offer my clients the following arguments that can help convince an employee of the need to sign an agreement to terminate the employment contract:

bringing to the attention of the employee information that the employment contract with him will be terminated, at best, the employee will be laid off. However, even a layoff is not a good reason to terminate an employment contract to demonstrate to a future employer. Agreement between the parties is another matter.

A potential employer will not see anything wrong with him;

an agreement between the parties allows you to save the employee’s time, which could be spent, for example, when reducing numbers or staff;
an agreement between the parties allows them to agree on the amount of “compensation” for dismissal, as well as the procedure for its payment.

Reduction of staff (clause 2 of article 81 of the Labor Code of the Russian Federation). An applicant for dismissal should be provided with a list of vacancies that correspond to his competence - for example, a similar position, but in a regional branch of the company. If the employee refuses to move, it is necessary to obtain a written refusal from him. The employer is obliged to notify the employee in writing of the layoff at least two months in advance and not to open a layoff position for a year.

Natalia Plastinina,Head of the Legal Support Sector:

When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; fired ahead of schedule, defined in Part 2 of Art. 180 of the Labor Code of the Russian Federation; an employee is dismissed on time, but during his illness, which is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for the expression of consent to vacancies or refusal of them, they already issue a dismissal order; they do not care about the real basis for reduction; they do not approve a new staffing schedule in a timely manner; they incorrectly apply the provisions of Art. 179 of the Labor Code of the Russian Federation on the preemptive right to remain at work; mistakes are made in the standard preparation of documentation.

For these and other reasons, there is still a high risk of dismissal due to staff reduction being declared illegal and the employee being reinstated at work, which is confirmed by numerous judicial practices.

So, for example, in labor dispute the court concluded that the employee was dismissed before the expiration of the two-month period established by labor legislation from the date of notification of the upcoming layoff. In this connection, the court recognized the dismissal of the plaintiff employee under clause 2 of part 1 of Art. 81 of the Labor Code is illegal, reinstated the plaintiff in the organization in his previous position (decision of the Yugorsky District Court of the Khanty-Mansiysk Autonomous Okrug- Ugra (published on November 27, 2012).

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

Indeed, staff reduction is one of the methods of dismissal that requires strict adherence to procedures. The employee is notified in writing of the upcoming layoff 2 months in advance; during this time, he is required to be offered in writing any vacant or newly created vacancy, the duties for which he can perform taking into account his qualifications. It is important to offer not only similar positions, but also lower-level positions. But positions in other regions are offered only if this is stipulated in collective agreement or other local regulatory act of the company.

We should also not forget about the preferential right to keep certain categories of employees at work.

Truancy (subparagraph “a”, paragraph 6, article 81). If an employee is absent from the workplace for the entire working day or for more than four hours in a row, dismissal occurs automatically. It is more difficult to fire an employee who is often late, but this is also possible if the start time of work is specified in the internal labor regulations, in the employment contract, and also in the collective agreement, if the company has one.

Natalia Plastinina,Head of the Legal Support Sector:

Let us immediately note that such a basis can never be expected from the average, moderately responsible employee. Lateness does not form such a basis for dismissal as absenteeism, since the employee’s absence does not reach 4 or more hours in a row. In addition, there is a high risk of incorrectly recording the event, incorrectly classifying absence as absenteeism, and incorrectly compiled documentation to form the basis provided for in paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Disadvantages of applying dismissal on this basis:

low probability of the foundation itself;

high probability of errors in the dismissal procedure for the above reason;

high risk of challenging dismissal due to its injustice, illegality, as well as in order to eliminate an unseemly entry in the work book;

in those organizations where there is no full-time lawyer, and the management of personnel records is entrusted to the secretary, all of the above risks of erroneous actions by the employer increase significantly. The risk of reinstatement for a dismissed truant also increases.
As practice shows, regulatory authorities are also on the alert, inspecting employers and may recognize an order to dismiss for absenteeism as illegal. What was done in Altai Territory State Labor Inspectorate. As a result of an inspection carried out on the basis of a citizen’s appeal, the state labor inspector found that, in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not require a written explanation from the employee regarding the fact of absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reasons, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. At the request of the state labor inspector, the order of dismissal by the employer was canceled. For violation labor legislation the director was brought to administrative liability in the form of a fine.

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

Even if an employee was absent from work for the required amount of time for absenteeism, he can hardly be fired automatically. In any case, this will require strictly following the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the reinstatement of the dismissed person with accrual of payment for the time of forced absenteeism.

Inconsistency with the position held (clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation). The employer has the right to change the employee’s job description by giving him two months’ notice. Then, additional agreements to the employment contract with the employee stipulate the conditions on the basis of which the indicators are considered unfulfilled. Indicator values can be taken according to any schedule: once a week, month, quarter. If an employee fails to perform, he is reprimanded, severely reprimanded, and then fired.

Natalia Plastinina,: Clauses 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation are two different grounds. Basis of paragraph 3 -“the employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results” is difficult to achieve in practice due to the fact that this basis does not arise. To apply it, the employer will first have to approve a local act on certification (see Part 2 of Article 81 of the Labor Code of the Russian Federation) and give employees time to prepare. Create a commission. Correctly record the order of its implementation and results. Lead iron arguments inadequacy of the employee for the position held. And after that...

Offer the employee another job at your own company! This is required from the employer by Part 3 of Art. 81 Labor Code of the Russian Federation. That is, all of the above actions may not lead to the end of the employment relationship if the employee agrees to be transferred to another position. Was the game worth the trouble?

Clause 5, Part 1, Art. 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - “repeated failure by an employee to fulfill work duties without good reason, if he has disciplinary action" There are some flaws in the scheme for changing job descriptions described by Forbes magazine: will the employee challenge these changes in the future? If, for example, you add to the job description of a building maintenance engineer the obligation to sweep 4 production workshops in the evening, I think the court will not recognize such a change as legal and justified. And it will point the zealous employer to the correct guideline in this matter - ETKS. In addition, one should not forget about the employee’s pattern of misconduct, which may no longer form after the first punishment.

And although both grounds may be applicable, their difficulty in achieving and high risk of challenge does not make them popular.

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

In this case, a strange construction is described that has nothing to do with Russian law in general and with clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation in particular.

Firstly, a change in job description is a change in the employee’s job function, which is possible only by agreement of the parties. In this case, a warning of two or more months does not play a role.

Secondly, to sign certain additional agreements An employment contract requires the employee’s expression of will, without which agreements cannot appear. What if the employee refuses to sign additional agreements? Has the right to.

Thirdly, in order to apply such a basis as inadequacy for the position held (clause 3 of Article 81 of the Labor Code of the Russian Federation), certification must be carried out; only a negative conclusion of the certification commission can become a reason for the dismissal of an employee.

Failure to comply with internal labor regulations (Article 192 of the Labor Code of the Russian Federation). Information about the smoking ban and the need to comply with the dress code should be specified in the internal labor regulations, which all employees sign when they are hired. You need to understand that it is not enough for an employer to simply indicate “observe the dress code.” He is obliged to inform his employees in writing what kind of clothing the management considers suitable for working with detailed description style and color of clothing.

Natalia Plastinina,Head of the Legal Support Sector:

Of course, there is no such basis in the Labor Code of the Russian Federation. However, there is a previously discussed basis, provided for in clause 5, part 1, art. 81 of the Labor Code of the Russian Federation – repeated failure to fulfill duties. Yes, indeed, an employee can be punished for smoking on the employer’s premises and for failure to comply with the dress code under the following conditions:

the employer has all local regulations that document these requirements accurately and clearly;
the employee is familiarized with the specified acts against signature.

If the employee violates the specified requirements for employee behavior, the employer must, in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation punish the employee. And only after the appearance of consistency (two or more violations during the year) will he be able to dismiss the employee under clause 5 of Part 1 of Art. 81 Labor Code of the Russian Federation.
In my opinion, the most best option for parting with an employee based on simplicity and reasonableness among those proposed.

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

If in this case we are talking about termination of an employment contract on the basis of clause 5 of Article 81 of the Labor Code of the Russian Federation (repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction), then failure to comply with the dress code or the smoking ban is not the best reasons for dismissal because they are not related to work duties. Dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation is carried out when there has been a violation (non-compliance) with the provisions of the job description or employment contract.

Alcohol intoxication (subparagraph “b”, paragraph 6, article 81). A single appearance of an employee in a state of alcohol, drug or other toxic intoxication at his workplace on the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a labor function is sufficient. But to use this method, the employer will have to provide the results as evidence medical examination employee.

Natalia Plastinina,Head of the Legal Support Sector:

To apply this basis, data from a medical examination (medical examination) are not always needed. The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court (clause 42 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” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunk employee flatly refuses to undergo a medical examination (including in order to further challenge his dismissal), the employer will have to collect other evidence. They can be (inclusive, but not limited to):

act of discovery in a state alcohol intoxication;
act of refusal of medical examination;
notice of giving explanations;
act of failure to provide explanations (drawn up after two days given to the employee for this);
etc.

As practice shows, with the correct and careful approach of the employer to the preparation of documentation in such cases, an employee who appears at work drunk will not be able to successfully challenge his dismissal.

Thus, in a dispute about declaring the dismissal illegal, the employer confirmed the fact that the plaintiff was intoxicated at the workplace with an act of intoxication; act of refusal to undergo a medical examination; protocol on administrative offense, explanations of witnesses. The court considered this to be sufficient evidence of the fact that the employee was intoxicated, and, therefore, sufficient grounds for terminating the employment contract under paragraphs. “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation. Having not identified any violations during the dismissal procedure, the court refused to recognize the employee’s dismissal as illegal (decision of the Zheleznodorozhny District Court of Yekaterinburg dated 03/21/2012; determination of the Sverdlovsk Regional Court dated 06/21/2012 in case No. 33-7104/2012) .

But the most interest Ask in another: will the employer wait for the employee to show up at work while intoxicated?

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

To fire an employee for coming to work while intoxicated, the results of a medical examination are desirable, but not required. The employee has the right to refuse to proceed to medical institution. In this case, the employer has the right to confirm the fact of intoxication with an act that describes the signs of intoxication.

Disclosure of professional secrets (subparagraph “c” of paragraph 6 of Article 81). Disclosure of secrets protected by law (state, commercial, official and other) that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee - serious violation labor responsibilities. At the same time, the concept of personal data is very broad, and theoretically you can be fired even for telling someone your colleague’s home phone number.

Natalia Plastinina,Head of the Legal Support Sector:

In accordance with the provisions of Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case where the information has actual or potential commercial value due to its unknownness to third parties, there is no access to it free access on legally, and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret is determined by law and other legal acts. Persons who have obtained information that constitutes an official or commercial secret through illegal methods are obliged to compensate for the losses caused. The same obligation is assigned to employees who disclosed official or commercial secrets contrary to the terms of the employment contract, and to contractors who did this in violation of the terms of the civil contract.

According to paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, in the event of an employee challenging dismissal under paragraphs. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secret protected by law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information. It is with this evidence that the employer usually has problems. Before applying the grounds for dismissal provided for in paragraphs. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, it should be clarified:

whether the organization has local regulations defining information as a secret protected by law;
whether the employee is familiar with these acts;
whether he has undertaken not to disclose certain information;
Did the information leak really come from this employee and how is this confirmed?

Remember: an ordinary employee may not know the provisions of regulations and laws of the Russian Federation. He may be legally completely illiterate. And only if he is familiarized by the employer with a local act based on legal norms, will he be recognized as aware that certain information is a secret. And it will be possible to punish him for disclosure only after he signs a non-disclosure agreement. But the presence of all these documents, as practice shows, does not minimize the risk of dismissal being declared illegal on the above grounds.

Thus, the court, considering a case with similar circumstances under consideration, considered that the employerno evidence was presented of the employee violating his official duties, in particular those relating to non-disclosure of trade secrets. The court indicated that the employer’s arguments are presumptive in nature and cannot serve as a basis for imposing a disciplinary sanction in the form of dismissal. Since there is no evidence in the case that unconditionally indicates that the employee disclosed information related to the company’s trade secrets, the court recognized the dismissal under paragraphs. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is illegal and changed the wording of the grounds for dismissal to clause 3, part 1, art. 77 of the Labor Code of the Russian Federation (at one’s own request) (decision of the Leninsky District Court of Perm dated 04/06/2012; appeal ruling of the Perm Regional Court dated 10/03/2012 in case No. 33-8900).

Changes in basic working conditions (Article 74 of the Labor Code of the Russian Federation). The employer has the right to change the work schedule or terms of payment by giving employees two months' notice. And here a huge space of opportunities opens up for the employer, and employees are forced to either agree with them or quit on their own. For example, an undesirable employee can be offered piecework payment labor, transfer production to a 24-hour schedule, and then many employees will prefer to give up night shifts.

Natalia Plastinina,Head of the Legal Support Sector:

The provisions of this article are presented too rosyly. Employers should not be so optimistic about their rights. Firstly, Art. 74 of the Labor Code of the Russian Federation requires strict justification of the reasons for changing the terms of the employment contract with the employee. According to Part 1 of Art. 74 of the Labor Code of the Russian Federation, only “reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons) are allowed.” Secondly, the employer will have to be ready to prove that the terms of the employment contract determined by the parties could not be maintained. Thirdly, under no circumstances does the law allow changing the employee’s labor function.

Changing the terms of an employment contract has a strictly regulated process:

written acquaintance with upcoming changes;
written justification of the reasons for the changes introduced;
offer of vacancies during the entire notice period;
correct recording of all employee consents and refusals (from signing, from vacancies, etc.);
dismissal no earlier than the expiration of the notice period;
payment of severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation).

Not an easy procedure, right? In addition, it must be taken into account that the employee may ... agree to new working conditions. Or agree to take one of the offered vacancies. Then will it be necessary to look for another reason for separation?

Given the high risk of challenging dismissal on the grounds in question, it is worth considering choosing this basis for dismissal.
As an example of a successful challenge, you can familiarize yourself with the decision of the Koryazhemsky City Court in case No. 2-12, in which the court did not recognize that the employer had grounds for changing the terms of the employment contract and, therefore, the emergence of grounds for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work due to a change in the terms of the employment contract determined by the parties). Pending the resolution of the dispute by the court, the defendant canceled his order and reinstated the employee at work).

Anna Ustyushenko,Partner, Head of Practice, Group of Legal Companies INTELLECT-S:

Application of Article 74 of the Labor Code of the Russian Federation is not possible in all cases. As a general rule, a change in the terms of an employment contract (and remuneration, work schedule - essential conditions) is carried out only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). And only in the event of a change in technological or organizational working conditions, the employer has the right to apply the provision of Article 74 of the Labor Code of the Russian Federation and unilaterally change the terms of the employment contract, warning the employee about this two months in advance. It should be borne in mind that in the event of a dispute, the obligation to prove the fact of a change in technological or organizational working conditions lies with the employer.

Failure to fulfill labor duties (clause 5 of Article 81 of the Labor Code of the Russian Federation). Most often, the employer uses this wording when other legal methods of dismissal have already been exhausted or are not suitable. In this case, the employee may be given a task that is impossible to complete in terms of deadlines, and then required to provide an explanatory note about the reasons for non-fulfillment.

(see comment above - “Inconsistency with the position held (clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation”)

Unsatisfactory certification results (clause 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a provision on certification, and the certification commission must include persons who have a professional understanding of the work of employees subject to certification. The commission reflects all decisions in the minutes. If the results of the inspection are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses a new job offered to him in the same company, with or without qualifications and with less earnings.

(see comment above - “Inconsistency with the position held (clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation”).

Natalia Plastinina,Head of the Legal Support Sector:

Conducting general analysis reasons presented by the magazine, we can conclude that each of them has its own disadvantages and entails certain risks. Even correct compliance with the dismissal procedure does not always entail recognition of the dismissal as legal and justified. Employers can be recommended to use in their activities the simplest grounds and procedures for dismissal regulated by law. For example, dismissal for repeated failure to comply an employee without good reason for his work duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) or dismissal for the employee’s appearance at work (at his workplace or on the territory of the organization - the employer or facility, where, on behalf of the employer the employee must perform a labor function) in a state of alcohol, drug or other toxic intoxication (clause “b”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation).

There are a number of reasons on which an employer can terminate an employment contract with an employee. All of them are described in detail in the Labor Code of the Russian Federation. However, it is not stated in direct text why one can fire an employee without his consent.

All grounds for termination of cooperation can be classified as follows:

Worker's initiative.
Leadership initiative.
Some circumstances are beyond the control of either party.

Not all employers know why they can fire an employee who disagrees. The procedure is feasible due to the presence of certain facts:

The employee lacks the necessary skills and qualifications.
Low performance, inconsistency with the position held (confirmed by certification).
Violations by an employee of established discipline.
Systematic failure to fulfill duties prescribed by management.
Absence from work without prior approval from management (absenteeism) for 4 hours or more.
The presence of a worker at the workplace under the influence of alcohol or drugs.
Administratively proven theft, damage or embezzlement of someone else's property.
Disclosure of official information or personal information of any colleague.
Providing false documents during employment.
If an employee with access to material assets committed any illegal act. Loss of trust in such an employee is also a sufficient basis for terminating the employment contract.

The following situations can be designated as force majeure circumstances:

Forced need to reduce staff.
Liquidation of an enterprise (closing an individual entrepreneur).

The listed grounds for dismissal are regulated by the Labor Code of the Russian Federation (Article 81). In addition to the above, there are some other facts that allow you to terminate an employment contract unilaterally. These include:

Change of management or owner of the enterprise.
Gross violation of the job description by management or his deputy.
Making a wrong decision, which caused damage to the organization’s property or its unlawful use.

The presence of any of these facts (or all of them at once) allows you to dismiss the head of the enterprise (additional office, branch), his deputy or chief accountant without their consent.

Any employee at public service He may also be removed from his post on the initiative of higher authorities. This occurs if the worker fails to comply with certain restrictions and prohibitions established by anti-corruption regulations, as well as if the assigned powers are exceeded.

Required papers

Upon dismissal, a worker has every right to request the following documents from the employer:

Photocopy labor agreement.
Order of dismissal.
Photocopies of certificates indicating that the necessary contributions have been made (to the Pension Fund and other organizations).
The original document that confirms the employee’s work in the specified organization in a certain position. In this case, the time period during which this interaction took place should be indicated.

If a worker is refused to provide any document, this can be regarded as a violation of the labor code. In this case, the dismissed person has the right to go to court.

Nuances that require close attention

In order for the dismissal of an employee to occur in accordance with the law, the manager should be guided by the fulfillment of two mandatory criteria:

Compliance of the real reasons for dismissal without the employee’s consent with those prescribed by the Labor Code of the Russian Federation.
Unquestioning compliance with all necessary procedures.

If any of the criteria are not met, the employee can challenge his or her dismissal. In the event of liquidation of the enterprise, all workers must be notified in advance (at least 60 days in advance) of the termination of the contract. The same applies to cases of staff reduction in an organization.

Employees can be notified either in person (by delivering the appropriate document) or by registered letter sent to their place of residence (if the reason for the employee’s absence is valid). Those who received a warning must sign for its receipt.

Sometimes an employee deliberately tries to avoid reading the specified paper. In this case, the text of the warning is read out loud in his presence. Next, you should draw up an act of refusal to familiarize yourself with the information. The paper must be certified by the persons who read the warning.

Employee incompetence

Sometimes the qualifications and skills of a worker do not correspond to the position he or she occupies. In order for the dismissal to be considered lawful, the organization’s management should conduct a certification of the team. If the commission considers the employee’s work to be insufficiently competent, the TD with the employee may be terminated. However, it will still be necessary to obtain and take into account the motivated opinion of the trade union body.

Avoidance of responsibilities

Those who regularly do not fulfill the tasks set by management and have already received a reprimand or reprimand for this matter are also threatened with dismissal. In this case, it is a disciplinary measure. To complete the picture, it is necessary to have complaints, explanatory notes, reports and other evidence of this fact.

Before you can dismiss, it is necessary to assess the misconduct that occurred. Within 2 working days, the employee must provide an explanation in writing. Please note: you cannot terminate your employment before the deadline. The fulfillment of this condition is regulated by the Labor Code of the Russian Federation (Articles 192 and 193). In case of refusal to write a paper, this fact should be documented with an appropriate act.

Disciplinary action cannot be taken against an employee if:

The offense was discovered more than a month ago.
The offense was committed more than six months ago.

The management of the enterprise does not have the right to independently find any employee guilty of damaging or stealing other people's things. Dismissal on the basis of this fact can be made after the relevant court verdict has been passed or a resolution has been received. administrative body. The same applies to the situation when a worker provides false documents.

If an employer decides to terminate a contract with someone from the team, he should adhere to some rules:

Document the detected violation.
Assess the severity of the identified violation.
Comply with the deadlines necessary for applying the punishment.

Compliance of management's actions with accepted rules minimizes the risk of wrongful dismissal and, as a consequence, subsequent litigation.

How legal is dismissal?

The State Labor Inspectorate periodically checks to what extent the termination of the employment agreement was complied with according to the law. This may happen:

As a result of the dismissal filing an appeal to the relevant authorities.
At the request of the state prosecutor.
As part of a planned inspection of the enterprise.

If, based on the results of the audit, it turns out that the worker was fired illegally, certain sanctions will be applied to the employer. Often an administrative fine is imposed on the organization and its management. In addition, the employer will be required to reinstate the employee and pay for his temporary absence from the workplace. Sometimes the court orders additional financial compensation employee as payment for moral damages.

Please note: administrative fines for management are equal to 1-5 thousand rubles, and for an enterprise - up to 50 thousand rubles. In case of systematic violations, the employer may be suspended from his position for up to 3 years.

Having decided to dismiss an employee without his consent, the employer should take into account all the nuances of completing this procedure. Otherwise, the worker will be able to prove the illegality of the dismissal.