Such situations are not uncommon at an enterprise when a manager is forced to dismiss an employee under an article. Legally, such a concept does not exist. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for removing an employee from a position can have an extremely negative impact on his future employment. Let us next consider some labor articles on dismissal.

Reduction or liquidation

This is one of the reasons why dismissal may be made. According to Article 81, paragraph 4, only the chief accountant, the manager and his deputy can be dismissed from office in the event of a change in the owner of the company. This provision does not apply to other (ordinary) specialists of the enterprise. When staffing is reduced, some categories of specialists cannot be dismissed from their positions by law. Such “untouchable” employees are considered to be those who have long and uninterrupted experience in a given company or are the only breadwinners in the family.

Inconsistency

As the Labor Code states, dismissal under Article 81, paragraph 3 can be carried out due to incompetence if the specialist is insufficiently qualified, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

Director of the enterprise.
Representative of the HR department.
The subject's immediate superior.

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

Transfer to another position

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

Failure to fulfill duties

Dismissal under Article 81, paragraph 5 has a number of features. In particular, a manager can dismiss an employee if the former repeatedly fails to fulfill his duties without permission. good reasons, and at the same time imposed on it disciplinary action. The latter is allowed in the form:

reprimand;
comments;
dismissal from office.

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

Absenteeism and tardiness

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

Embezzlement and theft

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

As can be seen from the text of the norm, an appropriate act is required, which, in essence, is the result of an investigation. However, often in practice, management shows leniency and offers dismissal for reasons at will. The article in this case will be different. Theft or other serious violation can damage not only the reputation of the employee himself (even if he is innocent), but also the enterprise itself. The consequences in such situations are almost always dismissal. Under what article to relieve an employee from his position is the choice of the manager.

Drunkenness

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

Loss of trust

Only financially responsible employees can be fired for this reason. These include, in particular, those who have access to money or other assets of the enterprise, receive them, distribute them, store them, etc. Such financially responsible persons may be:

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

Loss of trust may result from intentional misconduct or negligence, careless attitude to their responsibilities. As in the case of absenteeism, the employee's guilt must be proven. A report, audit or inventory report can confirm an employee’s unlawful actions.

Dismissal at will: article Labor Code

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

If dismissal is made at one’s own request, the article of the Labor Code of the Russian Federation only requires that the specialist must notify the employer 2 weeks before the expected date of departure of his intention. In general, the procedure for obtaining dismissal from office in such cases is not difficult. As in other situations, a corresponding entry is made in the labor record: “Dismissal under Article 80.” To begin this procedure, the specialist must write a statement. The employee has the right not to explain the reasons for his decision. The article of the Labor Code "Dismissal on one's own" does not carry any negative consequences. However, you should be prepared for the fact that when applying for a new position, the head of another company or a representative of the HR department will be interested in the reasons for this decision.

Design features

The dismissal procedure under this article must be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be followed. For each case there are various stages. However, in any situation, failure to comply with any of them can lead to negative consequences. In particular, an employee can appeal against unlawful actions of the employer.

Witnessing a fact

If there is any violation, this stage is considered mandatory. As stated above, in order to be dismissed due to drunkenness, it is necessary to attest to intoxication directly in work time, and not just the direct fact of drinking alcohol. Theft is proven in 3 stages. In particular, the law requires documentary evidence misdemeanor, as well as a ruling or sentence. Only after this can dismissal occur.

Warning

This stage also has its own characteristics, which depend on the reason why the employee is leaving. For example, upon liquidation of a company with subsequent dissolution of staff, any other change in the routine of activities at the enterprise and reduction in the number of employees, the employer is obliged to notify specialists 2 months before the date on which these events will be carried out. The same conditions are observed when an unqualified employee is dismissed from his position or when the results of his certification are unsatisfactory. If an employee commits a violation (failure to fulfill duties, absenteeism, non-compliance with company regulations, etc.), the employer is obliged to obtain a written explanation from him. After this, the manager has a month to apply disciplinary action to the employee if the reasons are regarded by him as disrespectful. Only one penalty may be applied for each violation. If, for example, a reprimand was issued for absenteeism, then it is impossible to fire the employee for the same offense.

Introduction to the specialist

This stage consists of notifying the employee and presenting him with the appropriate order. The latter indicates the reason why he is dismissed from office, the basis and date. The law requires the signature of a specialist on this document. If the order is refused to be certified, an act is drawn up in the presence of witnesses.

Explanatory

The need for this paper has already been mentioned above. The employer must require the employee to provide a written explanation of his conduct. At the same time, the law does not oblige the employee to write this paper. He has the right to refuse the employer. However, the absence of an explanation does not exempt him from disciplinary action. In any case, it will be issued 2 days after the above requirement is presented.

Order

The law requires the publication of two such acts. The first order must confirm the imposition of a penalty in the form of dismissal, and the second acts as a basis for terminating the employment contract. In most cases, the second edition is sufficient. This order must be accompanied by everything regulations. These include, in particular:

Details of acts and reports.
Explanatory (if available).
Other documents that confirm the existence of a valid reason for releasing the employee from his position.

Dismissal at will (Article 80) provides as a mandatory attachment a statement from a specialist. In this case, there is no need to write an explanatory note; you just need to notify the employer of your intention in time.

Personal documents

The employer is obliged to issue the employee his work book on the last day of the employee’s stay at his enterprise. It should have a corresponding mark. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the manager’s decision. To do this, he needs to contact the labor inspectorate or court.

Compensation and payments

They are based on the cost of the dismissal clause. For child care, in the event of staff reduction, liquidation of a company, or on the personal initiative of an employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of release from office. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation, benefits.

Consequences for the employee

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

Related to the reorganization of the company. If the enterprise complies with the law, the employee must be provided with assistance in placing him in a new place. In this case, the consequences for him are only positive.
Not indicated in the work book. For example, there may be a note that the employee vacated the position on his own initiative, but in fact his serious misconduct was simply not made public in order to avoid a scandal. In this case, no particular negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
Specified in the labor contract. They can significantly damage your reputation. But in some cases it makes more sense to be honest.

Appealing a manager's decision

If an employee is dismissed without sufficient or legal grounds for this, he has every right to go to court. The authorized body, in turn, at the request of the employee, may make a decision to recover compensation for moral damage from the employer. If the manager’s actions are recognized as unlawful, the employee has the right to ask to change the wording of the reason to “dismissal on his own.” In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he will be given a duplicate. In this case, all entries that were present in it are transferred to the book, with the exception of the one that was declared illegal. The procedure for appealing a decision of a manager is established in Art. 394. In addition to the court, an employee can contact the labor inspectorate and initiate internal review at the enterprise to ensure compliance of activities with the law. As practice shows, such litigation does not happen very often. Typically, employees are fired without conflict or fuss.

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

The employee performs his duties poorly: his work has to be redone, the company loses customers, and suffers losses.
He is systematically late, is rude to colleagues and management, and poisons the team.
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 examining the procedure for punishing an employee, we advise you to still agree with him on dismissal at his own request or by 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 the 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 formal business attire.

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 refer to the 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.

Without a job description, it is difficult to prove to the labor inspectorate or 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 violates the law, employment contract, PVTR, job description or other local regulations, then he does not perform his job 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 the 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 severe violations, in 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 the 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 of misconduct. 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.

Familiarize the offender with the order against signature. 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. You also need to familiarize yourself with it and sign it.

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 condition about it in the labor or collective agreement invalid.

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

How to fire a careless and arrogant employee

*This material is over three years old. You can check with the author the degree of its relevance.

How to fire a careless and arrogant employee

Algorithm for dismissing an employee in the absence of formal grounds for this. The Labor Code is in the guardianship of the employer.

I would venture to suggest that many lawyers involved in labor law, as well as personnel service workers, are familiar with this situation: the manager (client) sets the task of dismissing the employee, but there is no reason for this. Naturally, we are talking about the grounds enshrined in Labor Code RF. Informal reasons, as a rule, are sufficient in such a situation: the employee may be quarrelsome, unkempt, disloyal, and so on and so forth.

And there are cases when an employee, knowing about his invulnerability and protection from the law, deliberately behaves in such a way as to demonstrate to the employer his helplessness. As an example of taking action on last scenario The following situation can be described. The author of the article was contacted by the head of the organization, who said that one of the drivers was sabotaging the activities structural unit to which he is assigned: when performing work tasks, complies with all rules traffic, moves exclusively in the right lane, deliberately chooses routes with the most intense traffic. Naturally, the question was asked, is it possible to fire him?

The answer would seem obvious: no, it’s impossible, dismissal will be illegal.

But is this really so? Can a way out of this situation be proposed? Indeed, in some cases there are so many informal reasons to part with an employee that his continuation of work in the team is fraught with the risk of dismissal of the remaining employees.

IN civil law There is such a concept - “abuse of rights”. The ban on abuse of right is established in Article 10 of the Civil Code of the Russian Federation, which, as a consequence of abuse of right, indicates possible failure in his legal defense. There is no such concept in labor law. In practice, there are situations when an employee abuses his rights.

In this case, we will not discuss options for voluntary dismissal in the sense of the well-known aphorism: “most voluntary dismissal statements are written under dictation.” Also, we will not talk about a very convenient, in my opinion, basis for dismissal - “by agreement of the parties,” although I strongly recommend using it.

I suggest you look carefully at the list of grounds for dismissal at the initiative of the employer - clause 1 of Article 81 of the Labor Code of the Russian Federation.

It is obvious that the vast majority of subparagraphs of paragraph 1 of Article 81 require the employee to perform certain actions or inactions that entail legal consequences. It is impossible to “invent” absenteeism, which in reality did not exist, just as it is impossible to recognize an employee as unsuitable for the position held without carrying out established procedures. “Loss of trust” cannot be imputed to a person not connected with monetary or commodity values etc.

In this case, the employer’s lifeline can be 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.

Anticipating objections such as: “in order to apply clause 5 of Article 81, the employee must also perform certain actions” - I agree and point out that I do not consider this basis as the right way dismissal of an employee. However, having experience working with enterprises different levels and ideas about the level labor discipline, I can assume that the probability of successful application of clause 5 of Article 81 of the Labor Code of the Russian Federation in most cases is high.

So, what should you pay attention to when applying clause 5 of Article 81 of the Labor Code of the Russian Federation?

First of all, it is necessary to conduct an audit of local regulations relevant to a specific employee. The ideal situation is when not only an employment contract is signed with the employee, but also a job description, and the employee is familiar with the Internal Labor Regulations upon signature. Moreover, it is important that all these documents are not drawn up formally (taken from the Internet, legal framework), and adapted to the situation on specific enterprise. The rules and prohibitions that are important to the employer must be defined in writing. Otherwise, it may turn out that the dismissed employee becomes practically invulnerable: even if he commits obvious violations of labor discipline, he will not be held accountable. And the person involved will always be able to challenge the disciplinary sanction in court.

Definition of SC by civil cases Moscow City Court dated October 12, 2010 in case No. 33-31970: “A disciplinary offense is a guilty, unlawful failure to comply or improper execution employee of the work duties assigned to him, including violation of job descriptions, regulations, orders of the employer. The illegality of actions or inactions of employees means that they do not comply with laws, other regulations legal acts, including regulations and statutes on discipline, job descriptions.”

By analyzing local documentation, it is necessary to determine whether the employer can “provoke” a violation of labor discipline by an unwanted employee: give tasks (in writing and within the limits of the employee’s job function), set deadlines, officially approve a dress code, or simply become more vigilant towards the employee.

Determination of the Investigative Committee for Civil Cases of the Moscow City Court dated October 12, 2010 in case No. 33-31970: “The decision of the court of first instance was overturned, since the court of first instance, examining the grounds for applying disciplinary sanctions to the plaintiff in the form of reprimands, did not find out what specific sanctions violations served as the basis for the application of these penalties and whether these violations are directly related to the labor duties assigned to the plaintiff.”

It should be taken into account that excessive activity the employer in this matter will be noticeable to the court, especially if it manifests itself in relation to a specific employee, therefore, in order to avoid accusations of discrimination, you should carefully analyze your actions and the documents issued.

Other relevant articles on labor law:

Second important point is the employer’s understanding of the procedure and procedure for bringing to disciplinary liability.

According to clause 2 of Article 192 of the Labor Code of the Russian Federation, on the basis of clause 5 of Article 81 it applies to disciplinary sanctions. Consequently, the employee must be brought to disciplinary liability in compliance with Article 193 of the Labor Code of the Russian Federation, not only when imposing an initial disciplinary sanction, but also when directly dismissing him.

The algorithm for imposing disciplinary sanctions is as follows:

1. We draw up a memo from the immediate supervisor of the dismissed employee addressed to the director or other person whose functionality includes bringing to disciplinary liability. In the note, we describe the event that took place, for example, being late for work, rude communication with the client, if this is prohibited by the job description, etc.

2. We draw up and hand over to the dismissed employee a document for signature - a requirement to give an explanation - in which we indicate what violation of labor discipline has been identified and ask for an explanation for this fact.

Determination of the Investigative Committee for civil cases of the Moscow City Court dated February 14, 2011 No. 33-3831: “Since Article 193 of the Labor Code of the Russian Federation is of a guarantee nature, it obliges the employer before applying a disciplinary sanction request an explanation from the employee in writing».

The employee’s refusal to receive the request is recorded in the commission act, or a note about this is made on the request and signed by two or three witnesses to the refusal.

3. After two working days ( workers days dismissed employee) in the absence of explanations, we draw up a commission act refusing to provide an explanation. In the report, the commission records that as of a certain date no explanations were received from the employee. Please note: even if the employee, at the time of delivery of the request to give an explanation, said that no explanation would be forthcoming, it is possible to act on the refusal and carry out further actions only after two working days. Otherwise, the procedure will be considered violated due to the deprivation of the employee’s right to self-defense in the form of stating his position on the fact.

4. We issue an order to bring the employee to disciplinary liability, indicating one of the possible sanctions provided for in Article 192 of the Labor Code of the Russian Federation (in our case, if we are talking about the first attraction, a remark or reprimand). The order imposing a disciplinary sanction in the form of dismissal must indicate the data of previous orders, according to which disciplinary liability has not been removed from the employee. It is important for employers to know that the code does not provide for other sanctions: it is impossible to fine or “punish with rubles”, as is practiced by many employers. If an employee has caused damage through his actions, his recovery is carried out in a strictly defined manner, which has nothing to do with disciplinary liability.

5. Within three working days, we inform the employee of the order to impose a disciplinary sanction. If the employee refuses to sign the order and confirm his familiarization, we draw up a report about this. The procedure is completed.

Since we are talking about the application of clause 5 of Article 81 of the Labor Code of the Russian Federation, the procedure described above will need to be carried out at least twice (and for “sustainability” - three times). In this case, the grounds (misdemeanors) must be different due to the direct prohibition of being punished twice for one disciplinary offense, which is important in relation to ongoing violations. Dismissal will be a sanction for the person to be subject to disciplinary action again (or third time).

An important component of the correctness of the procedure is compliance with the deadlines established by Article 193 of the Labor Code of the Russian Federation: A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

In court, it will be the employer’s responsibility to prove that the deadlines have been met (for these purposes, a memorandum mentioned in the description of the procedure is needed). Obviously, in this case we are talking about a calendar month, the leave can be either regular or leave without pay, and if the leave without pay exceeds six months in duration, it will become impossible to hold the employee accountable beyond its limits. An exception is an inspection of financial and economic activities (revision, audit), which allows the employer to hold the employee accountable within two years. However, even in the case of an inspection, the court will determine at what point its implementation began: when the employer learned (or should have found out) about the disciplinary offense, whether the inspection is carried out in last days two-year period for its artificial extension. If such a circumstance is established, the disciplinary sanction will be recognized as illegal as imposed outside the period for bringing to disciplinary liability.

Another important nuance in the issue of timing when applying clause 5 of Article 81 of the Labor Code of the Russian Federation is maintaining the status of “subject to disciplinary liability”. Article 194 of the Labor Code of the Russian Federation establishes a one-year period for this, which can be reduced by the employer. Accordingly, the repeated bringing of the employee to disciplinary liability must take place within a year from the date of the first order. Otherwise, there will be no sign of repetition necessary to apply paragraph 5 of Article 81.

An interesting point that is worth paying attention to was the subject of consideration by the Perm Regional Court (cassation ruling of the Perm Regional Court dated 02/01/12 in case No. 33-1015-2012). Employee S. committed two independent disciplinary offenses on one day - 04/27/11. For committing the first, S. was brought to justice on 04/30/11, for the second - on 05/06/11, and was then dismissed as a sanction. Clause 5 of Article 81 of the Labor Code of the Russian Federation. The court, declaring the dismissal illegal, indicated that the disposition of paragraph 5 of Article 81 requires that the person have a disciplinary sanction at the time of the commission of the second offense. And vice versa: in order for the dismissal to be legal, the person receiving the penalty must commit a new offense. Meanwhile, in the period from 04/30/11 to 05/06/11, S. did not commit any disciplinary offenses.

From the above, one can conclude: misconduct committed on the same day, if the person does not have penalties (or within the framework of the procedure for bringing a person to disciplinary liability for the first time), cannot be used to dismiss an employee on the basis of clause 5 of Article 81 of the Labor Code Code of the Russian Federation.

The situation is similar in the following situation: an employee who has been held accountable writes a letter of resignation of his own free will, and within the 14-day warning period of dismissal he commits a second (possibly a third or a fourth...) disciplinary offense. The natural desire of the employer is to dismiss the employee not of his own free will, but on his own initiative, applying clause 5 of Article 81. However, guessing the consequences, the employee goes on sick leave. Accordingly, the employer does not have time to carry out the procedure for registering a disciplinary sanction before the expiration of the 14-day period. In this case, after 14 days, the employee must be dismissed at his own request, despite the fact that both in fact and legally the employer had the right to bring the employee to disciplinary liability.

Thus, when applying clause 5 of Article 81 of the Labor Code of the Russian Federation, many features should be taken into account. However, the procedure for applying this point is simple, despite its apparent cumbersomeness. In any case, it is this paragraph that gives the opportunity to employers-business owners in the conditions of “ tied hands» protect their interests if employees abuse their rights.

(№1/2013)

foreign workers, personnel records management, personnel reduction, labor law, labor disputes

When dismissing an employee, the manager cannot be sure that the story is over - a person fired under the article can go to court or simply cause damage to the company by leaking the customer base or valuable information. How to soften the procedure for dismissing employees.

Dismissal at the initiative of management always results in stress, wounded pride and painful experiences for the employee. It would seem that the director, having gotten rid of an employee who for some reason did not come to the court, should breathe a sigh of relief.

In fact, as usual, the coin has two sides - offended and irritated former employee can cause significant damage to the organization. Possible troubles are varied - from unpleasant stories about the true face of the leader in particular and the organization in general in business circles to tedious proceedings in court. An offended employee can take revenge on the company by leaking the customer base to competitors or by reporting valuable and secret information to the tax authorities.

But that's not all. If the dismissal was carried out rudely, the rest of the staff will be shocked, and many will begin to think seriously about their own prospects in the company and, perhaps, will look for more safe place work. Employee loyalty and a healthy atmosphere in the team are an important component of the company’s success.

The above is enough to make it obvious that when dismissing employees, you need to try to make this unpleasant process as non-traumatic as possible for all parties. Let's try to understand how we can make the dismissal process as painless as possible and not turn fired employees into enemies. You can part with employees using several dismissal mechanisms. We will look at the most common ones.

At your own request

The method is the simplest and most beneficial for the parties. Do not show excessive cruelty, and invite the unwanted employee to write a statement “on his own” (clause 3 of Article 77 of the Labor Code). Talk to the employee kindly and explain to him that it is better for you to leave, since he has no prospects in your company, and his usefulness to the common cause is minimal. If you manage to understand each other, write good recommendations to the person resigning. If possible, give him a consolation bonus for striving for peace.

In this case, a kind attitude towards the employee is very important; there is no need to provoke conflicts in order to avoid many unpleasant moments. If you have already decided that this person will not work in your company, there is no point in angering him and making an enemy (see “”).

The situation becomes more complicated if the employee flatly refuses to resign of his own free will. Do not give up trying to convince him of the inappropriateness of further cooperation, but do it very tactfully and without using prohibited techniques. Do not even think about insulting your subordinate or entering into open confrontation with him. Keep in mind that other employees are monitoring the situation and projecting it onto themselves. If you overdo it, you can provoke a revolutionary situation in the team.

Be patient and collect incriminating evidence against your subordinate: customer complaints, employee reports, violations of labor discipline, miscalculations in work... Make comments in writing, issue orders for reprimands, call the offender to the carpet on every occasion. When you have enough trump cards in your hands, you will be able to substantively explain that with such a dossier, a stubborn person will not find Good work. With this systematic approach he must surrender.

Create intolerable conditions for the employee - give most his powers to another employee, do not increase his salary, deprive him of bonuses. We are not at all sure that all these Jesuitical techniques will lead to the desired outcome - an obstinate person can take countermeasures by complaining to the tax office, the court, and a superior manager. Then your situation can become extremely uncomfortable.

Based on the certification results

Almost always, employees are fired due to their professional inadequacy for their position. The difficulty of such dismissal lies in the need for certification, which can only be carried out in organizations where special provision. All employees must be familiar with the text of this document against signature.

There are no instructions in the Labor Code on how certification should take place and how its results should be summed up. The Certification Regulations, approved back in 1973, have still not lost force. According to this document, the manager has the right to approve the certification schedule at the enterprise or issue an order to conduct certification. Employees must sign that they are familiar with this order.

Qualification assessment is carried out by a special commission consisting of sufficiently qualified specialists who can authoritatively assess the level of those being certified. The results are presented in the form of an order. If an employee does not pass the certification, he should be given a chance to pass it again to avoid disputes in the future. After the second failure, offer him a less prestigious job in your company. Find a position that the employee will definitely not agree to. Make the refusal in writing and you can prepare a dismissal order.

Although a dismissal order alone may not be enough in this case. If before the certification the employee performed his duties well and did not have any penalties, he can challenge the dismissal in court. The court almost always takes the plaintiff's side. When arranging a certification specifically to get rid of a specific person, follow the formalities. The disadvantage of this method of dismissal is the high cost and complexity of organizing this event.

For systematic violation of labor discipline

The employment contract always clearly states the start and end times of the working day, and any violation of the terms of the contract leads to penalties. Be sure to note all lateness on the timesheet (see “”), early departures from work, long lunch breaks, etc.

If violations have become systematic, create a commission and write an act. Request a written explanation from the employee. In case of refusal, draw up a report signed by members of a commission consisting of three disinterested witnesses, the immediate supervisor and a representative of the personnel department. If you make written comments every time you are late for work or a similar violation, in court you will have evidence that can convince the judge that your dismissal was fair.

For a one-time violation

The Labor Code interprets the following actions as a gross violation of discipline:

showing up at work under the influence of alcohol or drugs;
absence from work for a significant part of the working time without warning;
disclosure of trade secrets;
violation of safety regulations, which can cause serious consequences;
destruction, theft or embezzlement of property.

Walking for more than four hours and appearing in drunk become the reason for dismissal more often than others. Before you begin the dismissal procedure, make sure that the employment contract contains a clause on the location of the workplace, and that the job description is signed by the employee.

To prove the fact of appearing at work while intoxicated, it is necessary medical examination and written statements from witnesses. You must reprimand the offender and record it in your personal file. Only after collection necessary documents you can hope that the drunkard will be fired, and the decision cannot be challenged in court.

If absenteeism occurs, that is, absence from work for 4 hours without warning, the employee can be fired even if the offense is a one-time offense. The reason for absenteeism can be considered valid if there was a fire or an accident, or if you suddenly fell ill close relative etc. For absenteeism, an employee can be fired within one month from the date of the incident.

Peaceful dismissal

Of course, you can show integrity and fire an unwanted employee under the article, but think about the consequences of this action. You risk becoming involved in numerous legal proceedings with an uncertain ending.

If the court finds your actions unlawful, you will pay compensation for forced absence and will have to take back the dismissed employee. We think it's better to try to find peaceful ways conflict resolution (see ""). Invite the employee to write a statement of his own free will, explaining that you have enough information that can be used when leaving.

As a result trial the employee loses nothing, and you will incur costs in attorneys' fees even if you ultimately win the case. Offer the employee severance pay and go your separate ways - it will be better for everyone.

Situations vary. New top, for whom headhunters fought so hard, fails to cope with its responsibilities or does not suit the management. An old-timer of the company, who has been on the staff for several years, has become a drone and openly neglects his responsibilities. or leaves for meetings with a client and returns with a new manicure. And the programmer suddenly “fell ill” and returned from sick leave tanned.

We are talking about cases where employees know that it would be better to leave, but they take advantage of what the Labor Code has done official process dismissal is quite difficult for the employer. But HR specialists and employers come to the aid of loopholes that are still in the code.

Expensive mistake

Let us say right away that asking or forcing an employee to sign a statement of his own free will is an effective, but absolutely illegal option. Using it is more expensive for yourself. Because even after signing such a statement, the employee can go to the labor inspectorate and sue the company for:

compensation for moral damage,
compensation for forced downtime (based on the average employee salary),
achieve reinstatement in the workplace.

And history knows many examples when an employee won in court.
The company will also have to pay an administrative fine for violation labor legislation– up to 50,000 rubles.

Fire an unwanted employee? Legally!

There is no need to invent or contrive! The Labor Code already spells out legal methods of dismissal at the initiative of the employer. They should be used if an employee works dishonestly.

By mutual agreement

Article 78 of the Labor Code of the Russian Federation consists of just one sentence: “An employment contract may be terminated at any time by agreement of the parties to the employment contract,” and gives enormous scope to the employer.

This article is for employers in the best possible way to leave and is suitable if there are no official grounds for dismissal, but there is a reason. This is what is discussed with the employee one-on-one.

However, the employee usually expects compensation for forced dismissal or at least long paid leave. Therefore, the employer needs to prepare for additional material expenses. But by documenting the dismissal by agreement of the parties, the employer minimizes the risk that the employee will go to court.

He refused himself

Article 74 of the Labor Code of the Russian Federation provides that the employer can change the work schedule and working conditions (for example, introduce piecework payment labor or transfer production to a 24-hour schedule). Also, the employer can change the location of the company (move from the center to the outskirts) or change the owner, or carry out a reorganization.

The employer’s task is to notify employees about the reasons and changes in a timely manner, namely in writing and no later than two months in advance. And employees can either agree to the changes or quit.

You are not on the list

You cannot reduce staff by a specific unit without explanations and alternatives. The employer must offer the employee a list of other vacancies and not just any (from manager to couriers or cleaners), but corresponding to his competencies. The employee refused - they documented this and carried out the layoff.

Unsuitable for professional use

Inconsistency with the position (Article 81, paragraph 3) is another loophole for the employer.

When hired, each employee must sign a job description. But the employer has the right to change it over time by warning the employee 2 months in advance. For example, enter individual work criteria: processing a certain number of documents, fulfilling a sales plan, etc. additional agreement specify in the employment contract on the basis of what conditions the employee’s performance is considered unfulfilled, and then dismiss.

Didn't pass the certification

Another way to prove an employee’s incompetence is to conduct. But for the employer it is - last resort due to labor costs and high cost.

Certification is carried out not only for the unwanted employee, but also for others in a similar position. It is necessary to assemble a commission of people who have a professional understanding of the work of the employees subject to certification. Poor results - the employer has the right to fire an employee, but only if he refuses another vacancy in the company that matches his qualifications.

Absenteeism and tardiness

One employee’s absence (from 4 hours in a row or throughout the entire working day) is enough to fire him, as this applies to gross violation employee of labor duties (Article 81, paragraph 6).

It is more difficult to fire an employee who is constantly late, but it is also possible. You cannot be fired for a single lateness; you will need to collect several explanatory notes about the lateness and impose a disciplinary sanction. At the same time, the work schedule must be specified in the internal labor regulations and in the employment contract.

Intoxication

One thing is also sufficient for dismissal - alcohol, drugs, another toxic (Article 81, paragraph 6). But the employer will have to call an ambulance to the office before the end of the working day in order to record the employee’s intoxication and have the results of a medical examination in hand.

In addition to the law, there are also rules that the company determines itself. For example, what can you wear to work (); Is it possible to smoke and if so, where? Such rules should be clearly described in one document called “Internal Labor Regulations”. All employees sign up for it when they are hired. If the employee is notified, but violates the rules, then he can be fired.

Failure to fulfill duties

Clause 5 of Article 81 of the Labor Code of the Russian Federation allows for the dismissal of an employee if he repeatedly fails to fulfill his duties.

Here it is worth mentioning a method that is unethical, but is used by some employers. To fire an unwanted employee, the employer can overwhelm him with tasks that cannot be completed within the specified time, and then ask him to write an explanatory note about the reasons for non-fulfillment.

Disclosure of secrets

If an employee becomes aware of a secret protected by law (state, commercial, official and other), including the disclosure of personal data of another employee, he can be fired (Article 81, paragraph 6). At the same time, even the phone number of another employee may fall under personal data.

But don’t forget that firing an employee is still not easy. And each of the above loopholes has its own nuances. And dismissal “under article” is an extreme measure, and it should be used when peaceful methods have not helped.

Expert commentary

HR Director of Beta Press Group of Companies

As practice shows, dismissing an employee is far from simple and not as transparent as it seems at first glance. The Labor Code of the Russian Federation does not provide many options, and all of them are aimed at protecting the employee. I will comment on the options described by the author based on practice.

By mutual agreement– this mutual agreement is difficult to achieve, because if an employee has a conflict and does not want to leave, he will ask for considerable compensation, or simply does not want to lose workplace. The method is available if you have the budget for it.
He refused himself– for the sake of firing one careless employee, this is too labor-intensive an option. As practice shows, in reality, changes made (moving, changing work schedules, etc.) lead to the opposite problem, namely, employees who worked stably and were completely satisfied with the employer scatter.
You are not on the list– a rather complicated option, since if we are talking about a negligent employee, then we clearly want to replace him, which in this option impossible. The second point is that, as a rule, the employer is not ready to shell out for compensation, especially for those whom they want to get rid of.
Unsuitable for professional use– a complex system, requiring constant recording of indicators with which the employee regularly gets acquainted. In the event of a sudden change in requirements, as well as dismissal in short term(as in the example, 2 months) can become a “red rag” for the court.
Didn't pass the certification– legal and effective way, which allows you to get a lot of additional advantages (diagnosis of the level of knowledge of employees, recommendations for training, recommendations for promotion, changes in salary levels, etc.). If carried out by the HR Department, the costs are minimal. There are risks of legal appeals, but if deadlines are met and a complete package of documents is available, the risks are minimal.
Absenteeism and tardiness- It’s quite difficult to fire, but it’s possible. You need to remember about pitfalls in the form of sudden sick leave, etc.
Intoxication– I’ll add that there are certified breathalyzers that allow you to record alcohol intoxication, so for some companies it is more budgetary to purchase them. Another option is to offer to resign yourself or go for an examination (as a rule, in such cases, the employee leaves on his own).
Failure to comply with internal labor regulations- it’s not so simple here, and this kind of dismissal will require a lot of acts, explanatory notes, etc. It will be quite difficult to prove in court that an employee came to work wearing a blouse that is too transparent.
Failure to fulfill duties– a difficult item to fulfill, since tasks must be given in a fixed form and contain certain performance criteria. The employee must have the resources necessary to complete the task, etc. Situations can be extremely controversial.
Disclosure of secrets- a difficult reason to prove for dismissal, but business is business, and occasionally such situations do occur. The main thing is that the reason for dismissal should not be the employee’s phone number, since such little things clearly qualify as forced dismissal.

Despite the apparent variety of dismissal methods, most employers strive to agree on voluntary dismissal, since for the employee this is a “clean” story instead of an article, and the employer does not need to collect a package of documents in order to confirm the article in the event of a trial. Proving that an employer forced you to resign is just as difficult as the opposite. But, of course, you should not resort to this method when there is an open violation of an employee’s rights (