Termination of employment at the initiative of the employer. Dismissal is strictly according to the law. Termination of an employment contract at the initiative of the employer

Everyone knows that under certain circumstances, an employer can fire an employee on his own initiative. And such cases in practice when an employee receives his work book not according to at will, a lot. At the same time, the relationship between several articles of the Labor Code of the Russian Federation regulating the procedure for dismissing an employee is of great interest to HR specialists. We have to pay Special attention the terms of the employment contract, as well as the peculiarities of the correlation of these conditions and the reasons for the employee’s dismissal. For example, many questions arise about the termination of a fixed-term employment contract on grounds that are regulated by Art. 81 Labor Code of the Russian Federation.

TERMINATION OF A FIXED-TERM EMPLOYMENT CONTRACT

Article 79 of the Labor Code of the Russian Federation establishes the procedure for terminating a fixed-term employment contract due to the expiration of its term. As is known, a fixed-term employment contract general rule stops upon expiration of its validity period, about which the employer must notify the employee at least three calendar days before the date of termination of the contract.

In some cases, the duration of the contract is not determined by a specific date:

an employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work;
an employment contract concluded for the duration of certain work is terminated upon completion of this work;
an employment contract concluded to perform seasonal work during a certain period (season) is terminated at the end of this period (season).

TERMINATION OF AN EMPLOYMENT CONTRACT AT THE EMPLOYER’S INITIATIVE

Article 81 of the Labor Code of the Russian Federation regulates the grounds for termination of an employment contract at the initiative of the employer. Such grounds include:

liquidation of an organization or termination of activities individual entrepreneur;
reduction in the number or staff of employees of an organization or individual entrepreneur;
the employee’s inadequacy for the position held or the work performed due to insufficient qualifications confirmed by certification results;
change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
a single gross violation of labor duties by an employee (absenteeism, appearing at the workplace in a state of intoxication, disclosure of secrets protected by law, theft or intentional damage to someone else's property at the place of work, violation of labor protection requirements);
the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer;
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties;
the employee submits false documents to the employer when concluding an employment contract.

With the head of the organization and members of the collegial executive body organization, the employer may terminate the employment contract on other grounds. Such grounds must first be specified when concluding employment contracts with the specified categories of employees.

Also, Article 81 of the Labor Code of the Russian Federation stipulates that an employment contract can be terminated and in other cases established by the Labor Code of the Russian Federation and other federal laws. In particular, the Labor Code of the Russian Federation refers to such cases:

unsatisfactory test result when hiring (Article 71 of the Labor Code of the Russian Federation);
removal from office of the head of the debtor organization in accordance with the legislation on insolvency (bankruptcy) (Article 278 of the Labor Code of the Russian Federation);
adoption by an authorized body of a legal entity, or the owner of the organization’s property, or a person (body) authorized by the owner of a decision to terminate the employment contract with the head of the organization (Article 278 of the Labor Code of the Russian Federation);
repeated gross violation within one year teaching worker the charter of the educational institution (clause 1 of article 336 of the Labor Code of the Russian Federation);
the teacher’s use of educational methods associated with physical and (or) mental violence against the personality of the student (clause 2 of Article 336 of the Labor Code of the Russian Federation);
sports disqualification of an athlete for a period of six months or more (clause 1 of Article 348.11 of the Labor Code of the Russian Federation);
violation by an athlete, including a one-time violation, of all-Russian and (or) international anti-doping rules (clause 2 of article 348.11 of the Labor Code of the Russian Federation).

Federal laws regulate the issues of termination of an employment contract at the initiative of the employer in the service of internal affairs bodies, security services, emergency rescue services, in state (municipal) institutions, bodies local government, joint stock companies, in the field of education and foreign intelligence, in case of insolvency (bankruptcy) of the organization, disqualification of an official.

EARLY TERMINATION OF A FIXED-TERM EMPLOYMENT CONTRACT

Termination of an employment contract due to its expiration is not the initiative of the employer. However, the employer can terminate a fixed-term employment contract before the expiration of this period: the grounds specified in Art. 81 Labor Code of the Russian Federation. At the same time, regardless of the term of the employment contract, a number of features must be taken into account.

1. Each of the grounds presupposes the presence of certain circumstances specified in the Labor Code of the Russian Federation.

For example, an employer has the right to dismiss an employee for repeated failure to fulfill work duties without good reason if he already has a disciplinary sanction. Such a disciplinary sanction could be, for example, a reprimand or reprimand (Article 192 of the Labor Code of the Russian Federation). It is necessary to take into account that for each disciplinary offense the employer can apply only one disciplinary sanction (Part 5 of Article 193 of the Labor Code of the Russian Federation). After a year has passed from the date of application of the disciplinary sanction, it is considered that the employee does not have a disciplinary sanction (Part 1 of Article 194 of the Labor Code of the Russian Federation).

2. The existing circumstances of dismissal must be properly documented by the employer. Thus, in the event of dismissal for repeated failure to fulfill job duties without good reason, it is necessary that the fact that the employee committed a disciplinary offense is documented. The Labor Code of the Russian Federation does not regulate this issue, so you can draw up any document in which a disciplinary offense will be recorded, for example, an official memo. Next, a written explanation from the employee, an act (if the employee did not provide such an explanation), an order (instruction) of the employer to apply a disciplinary sanction, and another act if the employee refused to familiarize himself with the order (Article 193 of the Labor Code of the Russian Federation) must be drawn up.

3. When terminating an employment contract at the initiative of the employer, it is necessary to take into account preferential categories workers who do not fall under some of the grounds specified in Art. 81 Labor Code of the Russian Federation.

For example, termination of an employment contract at the initiative of the employer is not allowed with a pregnant woman. The exception is cases of liquidation of an organization or termination of activities by an individual entrepreneur.

It is also prohibited to terminate an employment contract on the grounds specified in paragraphs. 1, 5-8, 10 or 11 hours. 1 tbsp. 81 of the Labor Code of the Russian Federation, with persons with family responsibilities. Such persons include:

a woman with a child under three years of age;
a single mother raising a disabled child under the age of 18 or a young child - a child under the age of 14;
another person raising these children without a mother;
parent (other legal representative child), who is the sole breadwinner of a disabled child under the age of 18 or the sole breadwinner of a child under the age of three in a family raising three or more young children, if the other parent (other legal representative of the child) is not in an employment relationship.

4. It is necessary to take into account additional dismissal rules established for certain categories of employees. So, with employees under 18 years of age It is possible to terminate an employment contract at the initiative of the employer only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation).

An exception to this rule is cases of liquidation of an organization or termination of activities by an individual entrepreneur.

Separate dismissal rules are established for employees who are members of the trade union(Article 82 of the Labor Code of the Russian Federation). Such rules apply to dismissals on the grounds provided for in paragraphs. 2, 3 and 5 tbsp. 81 Labor Code of the Russian Federation. In particular, the dismissal of these employees must be carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in the manner prescribed by Art. 373 Labor Code of the Russian Federation. And for workers who have concluded collective agreement, a different procedure for the participation of the elected body of the primary trade union organization may be established (Part 4 of Article 82 of the Labor Code of the Russian Federation). In addition, due to the fact that there is no deadline for terminating an employment contract with an employee after receiving the consent of the elected trade union body, dismissal can be made no later than one month from the date of receipt of the consent of the higher elected trade union body for dismissal.

A separate procedure for notifying the elected body of the primary trade union organization has been established when reducing the number or staff of the organization's employees(individual entrepreneur). Such notice in writing must be submitted no later than two months before the start of the relevant activities. Moreover, if the decision to reduce the number or staff of employees may lead to mass dismissal employees, then the notification must be sent no later than three months before the start of the relevant activities (Part 1 of Article 82 of the Labor Code of the Russian Federation).

5. When terminating an employment contract, the deadlines established by law must be observed. For example, when registering dismissal for repeated failure by an employee to perform work duties without good reason, the following must be taken into account:

A disciplinary sanction is applied no later than one month from the date of discovery of the offense. In this case, the employee’s time of illness, vacation and the time required to take into account the opinion of the representative body of employees are not taken into account when calculating days;
the day the misconduct was discovered, from which the month period begins, is considered the day when the employee’s manager became aware of the commission of the misconduct;
no more than six months must have passed from the day the offense was committed (this period does not include the time of criminal proceedings);
the employee can write an explanation within two days of the request. The act of refusal to give an explanation is drawn up after two days, that is, on the third day after the request;
The employee signs the order (instruction) of the employer to apply a disciplinary sanction within three working days from the date of issuance of the order.

6. In some cases, upon termination of an employment contract at the initiative of the employer, the employee must be provided with certain guarantees and compensation(Chapter 27 of the Labor Code of the Russian Federation).

Thus, when reducing the number or staff of employees of an organization (individual entrepreneur), the employer must offer the employee a vacant position (job) corresponding to the employee’s qualifications, or a vacant lower position (lower paid job) in the same area (Articles 81 and 180 of the Labor Code of the Russian Federation). In the absence of such vacancies, the employer is obliged to pay the dismissed employee severance pay in the amount of the average monthly salary, and also maintain the average monthly salary for the period of employment (up to two months from the date of dismissal with severance pay included in the third month, but provided that within two weeks period after dismissal, the employee contacted the employment service and was not employed). This procedure is regulated by Art. 178 Labor Code of the Russian Federation.

The employer may establish other guarantees and compensation related to dismissal in the employment contract with the employee. The main thing is that the established guarantees and compensations do not violate the employee’s rights established by law and are fully implemented upon dismissal.

So, we have examined the main features of termination of an employment contract (including a fixed-term one) at the initiative of the employer on the grounds specified in Art. 81 Labor Code of the Russian Federation. From the above we can conclude that for each specific situation Careful consideration of the issue is necessary to avoid violations of the requirements of labor legislation and at the same time comply with the pre-established rights of the employee and the obligations of the employer.

Any citizen Russian Federation the right to freely choose a profession and field of activity is granted, any forms of forced labor are prohibited, this norm is enshrined in Article 34 of the Constitution of the Russian Federation.

The main regulatory document regulating the sphere labor relations, is the Labor Code of the Russian Federation (hereinafter referred to as the Code). It is its norms that provide basic protection of the rights of an employee against unjustified dismissal at the initiative of the employer. Article 81 of the Code describes in detail the grounds for dismissal of all categories of workers. Special norms that apply to certain categories of officially employed citizens are also indicated.

The disposition of this article applies to employees of enterprises of all forms of ownership. Reasons for dismissal can be divided into two blocks:

individual qualities of the person himself (low discipline or qualifications);
restructuring, liquidation of the organization.

Conditions and main reasons for termination

The legal consequences of dismissing an employee are the restriction of his right to work. Therefore, the legislator clearly defined the list of such cases. All of them are spelled out in paragraphs 1-3, 5, 6, 11, 12 of Art. 81 of the Labor Code of the Russian Federation, where general grounds for dismissal include the following reasons:

Liquidation of an organization or closure of an individual entrepreneur. In such cases, the enterprise completely ceases its activities, its rights and obligations are not subject to transfer to other persons. All employees without exception are dismissed.
Reduction of staff or number of employees. A person who falls under this rule is required to be offered another position that corresponds to his skills and state of health. The following persons have priority over other redundant workers:
- who are dependent on two or more people;
- in whose family no one else works;
- who were injured at work;
- disabled people of the Second World War;
- improving qualifications on-the-job at the request of the employer;
- other persons separately specified in the agreement.
Inconsistency of the employee with the position or job, the implementation of which is entrusted to him, due to low qualifications. The contract is terminated solely on the basis of the conclusion of the certification commission about the professional and business qualities of the employee and other evidence. Persons who have held a position for less than a year, pregnant women, and women with children under 3 years of age are not subject to certification. Dismissal is possible only after the employee has been offered all positions that correspond to his qualifications and state of health.
Repeated and systematic ignoring the obligations stipulated in the employment contract without clear explanations or valid reasons. The main condition for dismissal for this reason is the commission of a new disciplinary offense while the previous penalty has not been lifted. It could be:
- absenteeism from work or absence from the workplace for more than 4 hours without a valid reason;
- presence at work while intoxicated, as well as with signs of using narcotic or toxic substances and precursors. The fact of such a condition must be proven by conducting a medical examination or providing other evidence;
- disclosure of official information, commercial or state secrets protected by law, as well as personal data of another person if they became known as a result of the performance of work duties. The obligation of non-disclosure of certain information must be provided for in;
- entry into force of a sentence or resolution of the body entrusted with the right to impose an administrative penalty on the theft of property committed by a person at the place of work;
- negligent attitude towards ensuring labor safety at work, which entailed severe consequences: disasters, accidents, accidents or the creation of a real threat of such consequences.
When provision by a person, when applying for a job, of information and documents that contain false information: a document that certifies the identity of the person being hired, a certificate of pension insurance, a military ID, a document on graduation from an educational institution, if he is applying for a job that requires special knowledge or training.

Paragraphs 4, 7-10, 13 of Article 81 of the Code define special grounds for dismissal for individual categories employees:

Change of owner of a legal entity. If the manager, his deputies and Chief Accountant refuse further cooperation with the new owner, this is considered grounds for termination of the employment contract. According to judicial practice, dismissal is possible only if there has been a change of ownership as a whole, and not just subordination to the organization.
Commitment an employee who services commodity and monetary assets, intentional crime, undermining his credibility. To dismiss a person on this basis, an agreement on full financial liability is not necessary. Judicial practice allows termination of a contract with this category of persons, even if the fact of selfish offenses is not directly related to work. Actions that undermine trust in an employee can be either systematic gross violations or one-time violations.
Committing an immoral offense an employee who is entrusted with the function of education, as a result of which he cannot perform this work. Persons entrusted with educational functions include teachers, instructors, on-the-job training specialists, and educators.
Making a deliberately unjustified decision, which entailed material losses for the enterprise, and also caused misuse and damage to property. In this case, the subject of the offense can only be the management of the organization, who bears financial responsibility for their actions. A mandatory requirement is the occurrence of unfavorable consequences that could have been prevented by making a different decision.
Establishments of fact gross disregard of labor legislation in relation to employees by the management of the organization.
Dismissal of a manager or member of a collegial executive body based on the reasons specified in the contract.

In addition to the above circumstances, the legislator also established a number of additional grounds for dismissal of employees, which are provided for in paragraph 14 of Art. 81 of the Code, namely:

dismissal of the head of the organization (Article 278 of the Code);
the employee did not pass (Article 71 of the Code);
a decision to dismiss the head of an organization made by the owner of the property, an authorized person or body (Article 278 of the Code);
in case the employer is individual or is it work in religious organization, then the grounds for dismissal are also provided for in the contract;
use by a teacher of methods of physical or psychological violence against a student or pupil (clause 2 of Article 348.11 of the Code);
a single violation by an athlete of the international rules prohibiting doping (clause 2 of Article 348.11 of the Code).

All the nuances of this process and possible reasons abbreviations are presented in the following video:

Procedure and possible problems

According to Art. 180 of the Code, in the event of dismissal of an employee due to liquidation or staff reduction, it is necessary to notify him in writing no less than two months.

An employee dismissed in accordance with clauses 1, 2 of Art. 81 of the Code, payment of severance pay is required, the amount of which is determined by the average monthly earnings (Article 178 of the Code).

A benefit in the amount of two weeks' average maintenance is paid to a person who, due to imprisonment medical commission can no longer hold a certain position or be at work in an organization due to health conditions (clause “a”, paragraph 3 of Article 81 of the Code).

If there are any grounds for dismissal of personnel, management is obliged to inform the trade union body in advance.

If planned mass reduction employees, the management of the enterprise is obliged to provide the trade union with detailed information indicating the reasons for such a decision no later than three months before it takes place.

Termination of a contract if the employee’s guilt is proven can be carried out in a simplified manner. The employer is not obliged to warn the employee, pay severance pay or take into account the opinion of the trade union body.

When imposing a penalty, it is necessary to request an explanation from the employee; if he refuses to write it, then a report is drawn up. Within a month, an order is issued to impose disciplinary measures on the perpetrator. The monthly period should be calculated from the day when the misconduct became known, but it does not take into account sick leave and vacation time. The time for issuing an order should not exceed 6 months and is calculated from the day the offense was discovered.

Nuances of the procedure in special cases

Employees whose dismissal is possible only after agreement with certain government bodies include:

persons under 18 years of age (Article 269 of the Code);
pregnant women (Article 261 of the Code);
women with children under 3 years of age, single mothers who have a dependent child under 14 years of age or a disabled child under 18 years of age (Article 373 of the Code), persons who are raising these children without their mother;
heads and deputies of trade union bodies who are not exempt from their main activities (Articles 373, 374 of the Code).

Pregnant women and persons under 18 years of age can be fired only in the event of liquidation of the enterprise. The law also does not allow dismissal during vacation or temporary disability (Part 6 of Article 81 of the Code), with the exception of liquidation or termination of the company’s activities.

Labor Relations - shining example that it is much easier to conclude a contract than to legally terminate it early. Indirectly, this state of affairs is confirmed by the number of lawsuits and complaints about unlawful termination of an employment contract or violations of procedural requirements during its execution.

Normative base

Chapter 13 of the Labor Code of the Russian Federation is fully devoted to the issue of termination of labor relations. The largest number of labor disputes arise when the employer takes initiative (Article 81 of the Labor Code of the Russian Federation), since, most often, such dismissal becomes a consequence of an internal conflict with a subordinate.

However, this does not mean at all that questions and difficulties do not await personnel officers when terminating contracts on the basis of other articles of the Labor Code of the Russian Federation:

Art. 78 – agreement of the parties implies the presence of a document on the conditions of separation or a personal signature on the order with the appropriate wording;
Art. 79 – in order for the contract not to be recognized as indefinite, it is necessary to warn in time about its expiration, and then the dismissal will not raise questions from the regulatory authorities;
Art. 80 – the employee’s own desire must be confirmed by a personal statement, taking into account the fact that in most cases this document can be revoked at any day during the employer’s notice period;
Art. 81 – obliges the employer to collect a package of convincing evidence of his own innocence, as well as confirmation of the employee’s guilty actions;
Art. 83 – the presence of force majeure circumstances must be confirmed by a third disinterested party (medical board, court, military registration and enlistment office, licensing system authorities, etc.);
Art. 84 - concerns those situations where the employment contract initially did not have the right to exist (providing false information upon admission or concealing significant circumstances).

Additional reasons to part with an unsuitable specialist can be found in:

Art. 71 – based on the results of the test, the employee may not come, the main thing is to inform him about this in a timely and reasoned manner;
Art. 72.1 and art. 73 – if the company’s proposal to transfer an employee to another position for objective reasons was met with a sharp refusal, then termination of employment relations with him will be not only legal, but also a logical action of his superiors;
Art. 74 and art. 75 – the employee’s disagreement with the changed working conditions must be confirmed by his signature, then the dismissal will not cause additional proceedings.

General grounds for termination of employment relations are listed in Chapter 13 of the Labor Code of the Russian Federation.

Grounds for termination of an employment contract

The short wording “at the initiative of the employer” in the title of Art. 81 of the Labor Code of the Russian Federation hides a very extensive list specific reasons and grounds for termination of employment contracts. It is impossible to bring all the variety of cases under a single procedure for terminating an employment contract at the initiative of the employer, but it is quite possible to group them into several categories:

Type of termination	Design features	Article of the Labor Code of the Russian Federation
Liquidation of an institution or individual entrepreneur	The final closure of a business entity allows even the “non-dismissal” categories to be calculated, Art. 261 TK. It is enough to warn them 2 months in advance and pay benefits (maximum three average salaries).	clause 1 art. 81
Staffing reduction	Reduction without liquidation is possible only after lengthy and costly procedures (notification 2 months in advance, agreement with government agencies and the trade union, search and offer of vacancies, etc.). A pregnant woman, for example, cannot be fired on these grounds, Art. 261 Labor Code of the Russian Federation.	clause 2 art. 81
Inconsistency with the position held	Only a commission can establish a discrepancy based on the certification performed. Before dismissal, you must offer a transfer to another place.	clause 3 art. 81
Change of owner	Only the management team (director, his deputies and chief accountant) can be fired; ordinary employees can count on continued cooperation.	clause 4 art. 81
Dereliction of duty	For legal dismissal it is necessary to have evidence that the failure to comply is systematic, committed by the employee intentionally or due to negligence. The personal file of the dismissed person must contain information about the disciplinary sanction outstanding on the day of settlement.	clause 5 art. 81
Gross violation (absenteeism, drunkenness at work, disclosure of trade secrets, theft/embezzlement, etc.)	Any single violation considered gross will be sufficient grounds for dismissal. You can expel an employee based on this fact without fear, but taking into account the requirements of Art. 192 of the Labor Code on the proportionality of punishment, the degree of a person’s guilt and accompanying circumstances.	clause 6 art. 81
Loss of trust	Those who, under an employment contract, carry out transactions with money or inventory items should be afraid of dismissal on these grounds. If the employee’s guilt is proven, then it is possible to pay even for an act committed not in relation to the property of the enterprise.	clause 7 art. 81
Providing false data	Fraud during hiring can result in immediate dismissal. The Labor Code of the Russian Federation does not specify, but it is still possible to terminate the contract if these documents confirmed the special skills or education necessary for the job. If a miner, for example, lied about graduating from a music school, then his dismissal due to the provision false information declared illegal.	clause 11 art. 81
Incompetent decision by the manager	The circle of managers includes not only the first person of the enterprise, but also his deputies and the head of the accounting service. In order to be dismissed, you must have evidence that the company has lost money or its property has been damaged, and possibly that profits have been lost due to the fault of these persons.	clause 9 art. 81

When is it impossible to terminate a contract?

Labor legislation of the Russian Federation is often criticized for being excessively protective of the employee. In particular, additional guarantees are provided for certain types of employees, termination of the employment contract with whom at the initiative of the employer is either impossible or very difficult.

The first and most unshakable norm concerns pregnant women, Art. 261 Labor Code of the Russian Federation. Fire expectant mother She cannot leave a working company for any reason, even if she does not show up at the workplace for no reason or constantly ignores the demands of her superiors. The employer has only a limited list of disciplinary or material measures left in its arsenal:

reprimands and comments, Art. 192 Labor Code of the Russian Federation;
absenteeism on the report card allows you to reduce your salary for hours not worked;
failure to fulfill the plan or one’s work functions allows one not to include the pregnant woman in the bonus order.

The dismissal of a woman in this position is permissible only if the business entity is completely liquidated, but it is unlikely that the management will decide to close its doors just so as not to see one of its employees again.

Other categories of employees burdened with young children or other family responsibilities receive similar guarantees. But unlike pregnant women, the mother of a child under three years old can be fired for confirmed guilty actions in relation to the enterprise or failure to fulfill work duties, Art. 261 Labor Code of the Russian Federation.

IN different situations Additional benefits for remaining at work include:

employees with an impeccable work reputation and qualifications;
breadwinners of families with two or more dependents;
disabled people injured in the same production;
combatants and disabled people of the Second World War;
students sent to educational institutions by the employer himself.

Dismissal procedure

Before terminating an employment contract at the initiative of the employer, the personnel officer needs to once again refresh his memory not only of the provisions of Art. 81 of the Labor Code of the Russian Federation, but also look into Art. 84.1 of the same code. After all, it is there that contains a generalized step-by-step guide for the correct execution of paperwork upon dismissal.

Documentary base

It is necessary to begin the procedure for terminating an employment contract only after the categorical position of the management is supported by documented evidence:

employee reports;
explanatory statements of candidates for employment and witnesses of the events that caused the dismissal;
acts, protocols and certificates from doctors;
the grounds for dismissal may be confirmed by a court decision in criminal or administrative claims;
correspondence with the employee or documents handed to him personally against signature;
acts of refusal drawn up in the presence of eyewitnesses or a commission.

It is up to the employer to prove the legitimacy of his own position and the guilt of the employee before regulatory authorities or in court, so having as many papers as possible will only benefit management. In addition, this will be an unnecessary reminder for inspectors that the management was trying to resolve the conflict or reduce the influence negative consequences per employee.

A dismissed employee, even if the grounds for leaving were his guilty actions, cannot be impaired in his rights to receive monetary payments, compensation and benefits.

Payment and compensation

The form and reasons for termination of the employment contract cannot affect the list of monetary payments. Anyone fired has every reason to demand that management give him:

balance of salary for the current period;
vacation compensation (days earned on the day of dismissal);
severance pay and other bonuses provided for in the collective agreement (if any);
reimbursement of expenses incurred by the employee in the interests of the enterprise or payment for material damage caused, if such cases occurred, Ch. 38 Labor Code of the Russian Federation.

In fairness, it must be said that a situation may arise when an employee “goes into the red” for some types of accrual. For example, the employer has the right to withhold the amount of vacation pay for used but unearned rest days. Payments can be reduced by the amount of the advance received previously, as well as the agreed amount of damage that was caused to the company (by agreement with the employee or a court decision).

Deadlines

In case of early termination of an employment contract at the initiative of the employer, the first thing that concerns the personnel department is ensuring the legality of the procedure. In this matter, compliance with the deadlines allocated for this is not the least important. The most common norms of the Labor Code of the Russian Federation:

dismissal as a disciplinary sanction must be no later than a month from the date of discovery of the offense, but no more than six months (sometimes 2 years) after it was committed, Art. 193 Labor Code of the Russian Federation;
The fixed-term contract must be terminated on the day of its expiration, not forgetting to notify the employee of its termination three days in advance, Art. 79 Labor Code of the Russian Federation;
reduction of staff or numbers is carried out no earlier than two (in mass cases - three) months after notifying the team, Art. 180 Labor Code of the Russian Federation;
in case of forgery, the contract can be terminated from the moment of confirmation of the fact that prevents the continuation of the employment relationship, Art. 81 Labor Code of the Russian Federation.

The list of main stages of termination of an employment contract is described in Art. 84.1 Labor Code of the Russian Federation.

Recording in labor

Article 84.1 of the Labor Code prescribes strict adherence to the wording contained in the code when making entries in the employee’s work book. Even a slight distortion can change the content, which, in turn, will give the judge grounds to recognize dismissal for reasons not contained in labor legislation.

An experienced personnel officer tries to enter the correct wording already at the stage of drawing up the dismissal order, and then accurately transfers it to the pages of the labor document. The information about the work indicates not only a verbal definition of the reason for the end of the working relationship, but also specifies the number of the article of the code, as well as its clause and part.

An important point can be considered the handing over of the book itself to a former colleague. This must be done no later than one day after dismissal, if the employee was absent from the workplace on the last day. If personal transfer has not taken place even after 24 hours, then the employer should not relax, thinking that the dismissal’s failure to appear will protect him. The next day after dismissal, you must send a letter to the person inviting him to appear for his documents or give written permission to send a package of papers by mail.

If you request a personal visit former employee ignored and did not respond to the message, the manager is obliged to ensure the “eternal” storage of someone else’s work record (75 years from the date of separation from the employee).

Nuances when terminating contracts of different types

The whole variety of forms and types of employment contracts can be divided into two large groups: fixed-term and indefinite. The legislator makes an unspoken emphasis on the fact that it is preferable to formalize relations with all members of the team on the principles of constant cooperation. Limiting the duration of employment contracts is permissible only in exceptional cases. But as often happens, employers find loopholes in the law and sign fixed-term contracts with employees, even in situations where this is not entirely justified.

Urgent

A time-limited agreement with an employee is acceptable when it is clear in advance that it is impossible to promise permanent cooperation. In particular, when replacing a temporarily absent specialist, with pronounced seasonality of work, as well as if the company itself was created to implement a specific project.

A lawfully concluded fixed-term contract quite simply terminates on the last day indicated as the end date of the employment relationship. It is enough to provide the employee with a written reminder of this circumstance three days before this calendar date and no later than last day carry out all the procedures (issue an order, fill out and return the labor form, pay the money).

More difficult to issue early dissolution temporary employment contract at the initiative of the employer. No tricks will allow reducing legal guarantees for employees, because within the period of validity of the work contract, the code does not distinguish between permanent and non-permanent specialists. The procedure for collecting documents allowing for unscheduled dismissal, as well as evidence of a person’s guilt, must be collected in the same volume, depending on the essence of the article of the Labor Code of the Russian Federation applied to him.

If the termination of a fixed-term employment contract occurs in accordance with the clauses of the signed document, then this cannot be called “at the initiative of the employer”, Art. 79 TKRF.

Indefinite

If an employee is hired on a permanent basis, then the employer’s mere desire will not be enough to dismiss him. The simplest way is for the employee to not object to the settlement (Article 78 of the Labor Code of the Russian Federation) or to seek to leave himself (Article 80 of the Labor Code of the Russian Federation). In all other cases, termination of the employment relationship will require evidence, and sometimes even the involvement of third parties (police, court or auditors).

It often happens that contracts initially concluded for a limited period become indefinite. This transformation is possible for several reasons:

the notice period was missed or the dismissal was issued late;
circumstances have changed and neither party wants to terminate the contract;
the contract period exceeds five years;
the legality of concluding a fixed-term contract was challenged in court, and it was reclassified as permanent form employment.

Whether the working relationship has become indefinite or was so initially is not significant for labor legislation. It is important that such cooperation does not give the employer the right to painlessly dismiss an employee at any time convenient for him.

Termination of an employment contract is not always the result of an obvious or hidden conflict of interest. But when dismissing for any reason, it is vitally important to strictly follow the procedure for processing documents. Negligence at any stage can bring not only additional costs to the company, but also further disciplinary consequences against company officials.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.

Unlike the employee, the employer’s freedom to terminate the employment contract at the employer’s initiative is limited by a number of strictly formal rules:

The dismissal of an employee must be carried out under specific circumstances, the list of which, as a general rule, is established in federal laws, mainly Article 81 and, as an exception, in the employment contract itself, which is permissible for certain categories of workers (homeworkers, managers and others)

Dismissal at the initiative of the employer is carried out in a strictly established manner, that is, the law provides for a specific dismissal procedure for a specific reason for dismissal, for example, the rule for notifying the employee, taking into account the opinion of the VOPPO.

It must be taken into account that in the event of a labor dispute regarding the reinstatement of an employee dismissed at the initiative of the employer, the obligation to prove the existence of legal basis and compliance with the established procedure for dismissal is the responsibility of the employer.

Dismissal at the initiative of the employer for some reasons entails payment to the employee for established by law compensation

General guarantees established for employees in cases of dismissal at the initiative of the employer. They are general not because they apply to everyone, they apply for a group of reasons, and for certain categories of workers:

Dismissal of an employee is not allowed, with the exception of dismissal under paragraph 1 of part 1 of Article 81 during the period of temporary disability and while on vacation, in relation to pregnant women, as well as women with children under 3 years of age, single mothers raising a child under 14 years of age, if he is disabled, then up to 18 years of age and other persons raising such children without a mother, with the exception of dismissal under paragraphs 1.5-8, 10, 11 of part 11 of article 81 and part 2 of article 336

Termination of an employment contract with employees under 18 years of age is allowed at the initiative of the employer, in addition to the general procedure, only with the consent of the state labor inspectorate and the commission for minors.

The dismissal of employees who are members of trade unions on the grounds of clauses 2,3,4 of part 1 of Article 81 is carried out taking into account the opinion of the VOPPO (trade union committee) in accordance with Article 373.

Representatives of employees participating in collective bargaining during the period of their introduction cannot be dismissed at the initiative of the employer without prior authority of their authorizing body, with the exception of dismissal for culpable reasons (dismissal related to a disciplinary offense)

Representatives of workers and their associations participating in the resolution of a collective labor dispute cannot be subjected to disciplinary action during the dispute, transferred to another job or dismissed at the initiative of the employer without the prior consent of the body authorizing them (405)

Grounds for dismissal Article 81

Termination of an employment contract in the event of liquidation of an organization or termination of the activities of an individual entrepreneur (clause 1 of part 1 of Article 81).

The basis for dismissal under this clause may be a deprivation of liquidation of a legal entity, that is, a decision to terminate its activities without the transfer of rights and obligations through succession. If the employer is an individual entrepreneur, then the contract under this clause can be terminated when the activities of the individual entrepreneur are terminated on the basis of his own decision, as a result of his being declared insolvent (bankrupt) by a court decision, due to the expiration of certificates or permits. In case of a dispute, the burden of proving the fact of termination of activity falls on the employer.

Is it always logical to say that the dismissal of employees due to the liquidation of an organization is dismissal at the initiative of the employer?

In the event of termination of the activities of a branch, representative office or other separate division located in another area, the dismissal of employees of such divisions occurs according to the rules of liquidation of the organization.

Guarantees and dismissal procedure:

The employee is notified in writing against signature two months before dismissal. In practice, this occurs either by reading the order against signature, or by delivering a special notice to the employee. In case of refusal to certify the fact of familiarization with the order or receipt of notification, a corresponding act of refusal is drawn up which is confirmed by the signatures of at least two witnesses.

The rules for drawing up acts will be the same for all cases in labor law (the rules are indicated above).

The employer has the right, with the written consent of the employee, to terminate the employment contract with him on this basis before the expiration of the two-month notice period, while paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice period.

In addition to notifying the employee himself, when deciding to liquidate the organization and possible dismissal of the employee, the employer is obliged to inform the employment service authorities in writing no later than two months before the start of the relevant measures. The notice must indicate the following: profession, specialty, position, qualifications and level of remuneration for each specific dismissed employee. If the liquidation leads to the mass dismissal of workers (and the criterion for mass dismissal is established in industry agreements or territorial agreements), then notification of the employment service authorities is made no later than three months in advance.

The dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains his average earnings for the period of employment but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary may be retained for the third month by decision of the employment service authorities, provided that the employee applied to this authority within two weeks from the date of dismissal and was not employed by it. For employees of certain categories, separate periods for maintaining average earnings are established, for example, up to 6 months for persons dismissed from organizations in the regions of the far north, as well as ZATO - Article 317 of the Labor Code of the Russian Federation (forgot about individual entrepreneurs).

On this basis, it is possible to dismiss employees during their vacation or during a period of temporary incapacity for work.

Clause 2 of part 1 of Article 81 reduction of the number or staff of employees of an organization or individual entrepreneur. The right of the employer to determine its own structure and manage personnel, including taking measures to reduce them. In this regard, the courts, when considering disputes about dismissal under this paragraph, do not have the right to check the expediency or economic justification of a reduction in headcount or staff, but are obliged to check whether the reduction was actually carried out (whether such a reduction was not fictitious), and whether all requirements were met labor legislation. Headcount reduction differs from staff reduction in that in the first case the number of staffing units, and in the second, the number of positions, specialties and professions in the state. A reduction in numbers may coincide with a reduction in staff. A fictitious reduction is a reduction of any unit that is carried out for the purpose of dismissing a specific employee without economic justification, usually after a short time in staffing table a similar position is being restored.

Guarantees and dismissal procedure:

The employer is obliged to notify the following entities in writing about this decision (reduction) and the upcoming dismissal:

VOPPO no later than two months before the start of the relevant activities, and if this may lead to mass dismissal no later than three months

Employment service body, just like in VOPPO

The employee himself can be terminated personally and against signature no later than two months before the dismissal, before the expiration of this period, with the written consent of the employee, subject to additional payment. Compensation under Article 180 of the Labor Code of the Russian Federation

When reducing numbers or staff, the rules on the preferential right to remain at work must be observed; it is provided to employees with higher labor productivity and qualifications; if these indicators are equal, the following must be taken into account:

Having two or more dependents in the family

Absence of any other persons in the family with independent income

The fact of receiving a work injury or occupational disease while working for this employer

Disabled status during the Second World War, or during military operations to defend the fatherland

The fact of improving the qualifications of workers without interruption from work

Dismissal of employees of trade union members takes into account VOPPO

Dismissal on this basis is allowed only if it is impossible to transfer the employee to another job with a given employer. The employer is obliged to offer the employee, during the entire notice period, as soon as they appear, all vacancies corresponding to the employee’s qualifications and lower vacancies that the employee can fill, taking into account his state of health. He is obligated to offer vacancies available to him in a given locality; existing vacancies in another locality are offered only if this is provided for by the Code of Conduct. The employer must obtain evidence that he offered available vacancies, for example, have a notice of the availability of vacancies for which the employee signs to confirm the fact of familiarization.

Payment of severance pay and preservation of average monthly earnings occurs according to the rules of paragraph 1 of part 1 of Article 81

Clause 3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications established by the certification. Dismissal under this clause is permitted provided that the qualification discrepancy is confirmed by the written result of certification, which can be carried out in the manner established:

Labor legislation (for example, on the dismissal of rescuers on the status of laws)
Other legal acts in the field labor law(RF Government Decree 1997 on certification of emergency rescue services)
Local regulations. Any employer has the right, in order to verify the suitability of an employee qualification requirements to provide at the local level for rules on certification; most often, the corresponding local normative act is called a regulation on certification.

When conducting certification, which may serve as a basis for dismissal of employees, a representative of the VOPPO must be included in the certification commission.

The employer does not have the right to terminate the contract with the employee under this clause if certification for this employee was not carried out or was carried out in violation of mandatory rules, or the certification commission came to the conclusion that the employee corresponds to the position held or the work performed, unconditionally or even with reservations, while the conclusions of the certification committee commissions (in the event of a legal dispute) on the employee’s business qualities are considered in conjunction with other evidence presented in the case. The certification commission is usually entitled to make three conclusions:

On the employee’s suitability for the position held and possibly on recommendations for promotion of the employee

About inconsistency with the position held

On suitability for the position held, subject to the elimination of comments

Dismissal under this clause is permitted if it is impossible to transfer the employee to another job available to the employer with the written consent of the employee. The rules for providing vacancies are the same.

Clause 4 of part 1 of Article 81 termination of an employment contract in the event of a change in the owner of the organization’s property

This reason is special since only the head of the organization, their deputies, and the chief accountant can be dismissed under this clause (heads of branches cannot be fired). However, this reason for dismissal was included in the list of general ones due to the fact that for managers, deputies and chief accountants there are not many specific features for the formation of a separate chapter.

Deadline for dismissal - no later than three months from the date of transfer of ownership, you can dismiss. Employees are provided with compensation upon dismissal (Article 181 of the Labor Code of the Russian Federation) of at least 3 average monthly earnings.

Clause 5 of Article 81 termination of an employment contract in the event of repeated failure by an employee to fulfill work duties without good reason if he has a disciplinary sanction. This type of dismissal in itself refers to a disciplinary sanction; therefore, in addition to the general rules of dismissal, the norms of Chapter 30 of the Labor Code of the Russian Federation (labor discipline, this will also apply to all other types of disciplinary dismissals, which we will consider below) must also be taken into account. Failure by an employee to fulfill his job duties without good reason means both failure and improper execution the employee of the work duties assigned to him, which may manifest itself in violation of the requirements of the law, obligations from the employment contract, PVTR, proper instructions, regulations, orders of the employer, technical rules, and so on. The concept of valid reasons is an evaluative one and will be determined depending on the circumstances of a particular case.

The employer has the right to terminate the contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to fulfill his work duties without good reason, it has not been lifted or extinguished.

A disciplinary sanction is extinguished if within a year from the date of its application the employee is not subjected to a new disciplinary sanction. Before the expiration of a year, the employer has the right to lift a disciplinary sanction from an employee on his own initiative, at the request of the employee, at the request of his immediate supervisor or trade union body. Application of a new disciplinary sanction to an employee, including dismissal under this clause, is also permissible if failure to perform or improper performance of job duties continued despite the imposition of a disciplinary sanction, for example, in the case of an employee’s continued evasion from undergoing a medical examination which is mandatory in his profession, continued evasion from passing the safety exam and others.

The employer has the right to apply a disciplinary sanction to the employee in the form of dismissal even when, before committing the offense, he submitted a letter of resignation of his own free will, since the employment relationship in this case terminates only after the expiration of the notice period for dismissal. Examples of failure to fulfill labor duties are absence from work without good reason or from work at all.

Note: if the employment contract concluded with an employee or PVTR does not stipulate a specific place for the employee, then when a question arises about its determination, Part 6 of Article 209 of the Labor Code of the Russian Federation should be applied, according to which the workplace is understood as the place where the employee should be or where he needs to arrive in connection with with his work and which is directly or indirectly under the control of the employer.

Example: refusal of an employee to perform job duties without good reason due to a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation). Labor standards are production standards, for example, which can be revised by the employer. It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (Article 74 of the Labor Code of the Russian Federation) cannot be a violation of labor discipline, but serves as grounds for dismissal under clause 7 of part 1 of Article 77 of the Labor Code of the Russian Federation.

Example: refusal or evasion without good reason from a medical examination for workers of certain professions, or refusal to undergo special training and an examination on labor safety and health during working hours if this is a mandatory condition for admission to work

Example: paragraph 36 of the resolution of the plenum No. 2 separately considers the situation of an employee’s refusal to conclude a written agreement on full financial responsibility - independently

And others.

A number of points are indicated by Resolution of Plenum No. 2, in particular, an employee’s refusal to comply with the employer’s order to go to work before the end of his vacation cannot be considered as a violation of labor discipline, since the employee’s recall from vacation is possible only with his consent.

In the event of a dispute, the employer must have evidence showing that:

The violation committed by the employee, which was the reason for dismissal, actually took place and could be grounds for dismissal

The employer complied with the terms and procedure for bringing to disciplinary liability established by Article 193 of the Labor Code of the Russian Federation (learn).

The day the misconduct is discovered, from which the month period for bringing disciplinary action begins to run, is considered the day when the person to whom the employee is subordinate became aware of the commission of the misconduct, regardless of whether he has the right to apply a disciplinary sanction. This period does not include the employee’s time of illness, his stay on vacation, as well as the time spent by the employer on the procedure for taking into account the opinion of the VOPPO (373), as well as the employee’s absence from work for other reasons.

Clause 6 termination of labor rights in case of one-time gross violation employee of his duties – is also a type of disciplinary dismissal. Unlike paragraph 5, paragraph 6 does not have an abstract formulation, but a closed list of types of violations:

Absenteeism, that is, absence from the workplace without good reason during the entire working day or shift, regardless of their duration, as well as more than 4 hours in a row during the working day or shift. Absence from the workplace means a situation where either the employee did not go to work at all, or went out but was outside his workplace, for example, in other premises, with colleagues, on the territory, and so on. An employee’s absence from the workplace due to the employee’s suspension or exclusion from work cannot be regarded as absenteeism (76), because the initiative in these cases comes from the employer himself, although it may be associated with unjustified reasons related to other work. The situation when an employee is at his workplace but refuses to do his work, then this is also not absenteeism. It is also not considered absenteeism if an employee is absent from the workplace in case of suspension of work due to a delay in payment of wages for a period of more than 15 days, provided that he has previously notified the employer about this in writing (about the suspension of work). The validity of the reasons for absence is determined in each specific case by the employer based on the employee’s explanations. Of course, valid reasons include emergency circumstances that prevent the employee from being at work, the employee’s illness, the need to provide assistance to third parties.

Examples of absenteeism:

Abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without notifying the employer about this within the established time frame. There should be a local regulatory act - the obligation to notify the employer about changes in your personal data and a note that in the event of a long absence, the employer has the right to request an explanation for the absence by mail.

Abandonment of work without a valid reason by a person who has entered into a fixed-term employment contract until the expiration of this contract or the period of notice of early termination

Unauthorized use of time off, unauthorized going on vacation, it must be taken into account that the use of rest days by an employee is not absenteeism if the employer, in violation of the duties provided for by labor legislation, refused to provide them, and their use did not depend on the discretion of the employer. For example, Article 176 (donors).

Leaving a job by an employee for another job function if the employee was transferred legally by the employer. For example, Article 72.2. The time an employee is absent from the workplace must be recorded by the employer; in practice, this is done in an absenteeism report drawn up by an authorized person in the presence of witnesses, as well as in a work time sheet

Appearance by an employee at work or at a place specified by the employer or facility where, on behalf of the employer, the employee must perform his work function in a state of alcoholic, toxic, narcotic or other intoxication. For dismissal, the mere fact that the employee is in such a state at work during working hours is sufficient. If an employee comes to work on a weekend or holiday, or if intoxication occurs after the end of the working day, dismissal is unacceptable.

If an employee is found to be intoxicated at a checkpoint, he should be escorted to the employer’s premises and a document drawn up there confirming the fact of intoxication at the start of his working day or shift. The state of intoxication can be confirmed both by a medical report (if it is possible to obtain one) and by other types of evidence. For example, witness testimony and a report on the employee’s appearance at work in a state of intoxication. In the act, it is necessary to indicate specific signs by which the state of intoxication is determined (incoherent speech, persistent bad breath, unsteadiness of gait), the time of drawing up the report, and it must be within working hours, the place of drawing up the report (office of such and such) and certify everything with the presence and signatures of witnesses. After drawing up the act, the employer should remove the employee from work; however, this has no legal significance for dismissal

Disclosure of a secret protected by law that has become known to an employee in connection with the performance of job duties, including disclosure of personal data of another employee. State secret is information protected by the state in the field of its military, foreign policy, intelligence, counterintelligence, the dissemination of which could harm the security of the Russian Federation. Information is classified as an official or commercial secret when it has the following characteristics:

Information has actual or potential commercial value due to unknown to third parties
No legal third party access on legal grounds
The owner of the information takes measures to protect its confidentiality (example: know-how)

According to the Federal Law on Trade Secrets of 2004, information constituting a trade secret is scientific, technical, technological, production, financial, economic and other information, including production secrets, which has the characteristics listed above (signs from 139 of the Civil Code of the Russian Federation) in relation to which the owner of the information a trade secret regime has been introduced. Thus, dismissal of an employee for disclosing a trade secret is possible only if the employer has established a trade secret regime in relation to this information and has also established the employee’s obligation not to disclose this information (the obligation is specified in the employment contract + a non-disclosure agreement). In addition, mandatory elements of the trade secret regime are a list of acts, documentation, information related to a trade secret approved by the employer and placing a mark on the media of this information indicating that it is confidential.

Other types of secrets protected by law are medical, lawyer, notarial, and so on. What law protects the secret of confession?

Personal data of an employee is information that is necessary for the employer in connection with labor relations concerning a specific employee. Disclosure is an action or inaction as a result of which information in any possible form (oral, written, other form, including using technical means) becomes known to third parties without the consent of the owner of this information. The obligation of non-disclosure of information must be stipulated in the employment contract with the dismissed employee.

Assignment for the seminar: a situation where the employer has established an obligation to maintain a trade secret for 5 years, what responsibility does the former employee have for disclosure?

In case of a dispute, the employer is obliged to provide evidence demonstrating the following:

Disclosures of information relate to the indicated types of secrets

The information became known to the employee precisely in connection with the employee’s performance of work duties. Is it possible to fire an employee if secret information became known from a work colleague?

The employee agreed not to disclose this information

committing theft at the place of work, including petty theft of someone else's property, embezzlement, intentional destruction or damage established by a court verdict or a decision of a judge, body, official authorized to consider cases of administrative offenses that have entered into legal force. Theft and other actions must be committed at the place of work, that is, on the territory of the employer or other facility where the employee must perform a labor function. Any property that does not belong to a given employee should be considered as someone else's property, in particular property belonging to the employer, other employees, as well as non-employees (clients, visitors). A one-month period has been established for the application of such a disciplinary measure and comes into force from the date the court verdict or in the case of an administrative offense comes into force. You need to know Article 293.

In the event of a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe), or knowingly created real threat the occurrence of such consequences. Compliance with labor protection requirements is the general labor responsibility of every employee. Violation of labor protection requirements must be documented by the above-mentioned entities, for example, in a report on an industrial accident, a report on the investigation of an accident at an enterprise. The Occupational Safety and Health Commission is a social partnership body formed by the employer on a parity basis from representatives of the VOPPO or other representative body and from representatives of the employer. This commission is responsible for ensuring labor safety requirements, and also organizes inspections of labor safety conditions at workplaces; sometimes such functions are carried out by labor safety commissioners. The list of grave consequences is closed. If the employee was not properly familiarized with labor safety requirements or, through the fault of the employer, did not undergo training and testing of knowledge in the field of labor protection, then the dismissal of such an employee under this clause is not permissible.

Clause 7 in the event of guilty actions committed by an employee directly servicing monetary and commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer. Clause 7 and clause 8 may or may not be disciplinary sanctions. A special subject under this clause is an employee who directly services monetary or commodity values. Such persons are understood as workers who receive, store, transport, distribute, process commodity or monetary assets, or similar actions. Examples of professions: loader, cashier, seller, receiver, bartender, cook, supply manager. This group of employees includes not only persons with whom agreements on full financial responsibility can be concluded, but also other employees who are directly entrusted with valuables in connection with their work responsibilities. As a rule, actions that give rise to loss of trust by the employer are associated with the commission of selfish acts or gross careless violations. The fact of these actions must be documented. It does not matter whether these actions led to real damage to the employer. Examples of mercenary acts - embezzlement, theft, taking a bribe, examples of gross careless acts - a gross violation by a storekeeper of the rules for storing any goods, which created a threat or led to damage.

If it is established in the manner prescribed by law that such actions have been committed (theft, bribery and other mercenary acts), these employees may be dismissed on this basis even in the case when these actions are not related to their work. In this case, dismissal will not constitute a disciplinary sanction. In the case where guilty actions are committed by an employee at the place of work and in connection with the performance of his job duties, dismissal under this paragraph is a disciplinary sanction. Dismissal of an employee on this basis in cases where guilty actions leading to loss of confidence were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of job duties, is not allowed later than 1 year from the date of discovery of the misconduct by the employer.

Clause 8. In the event that an employee performing educational functions commits an immoral act incompatible with the continuation of this work. An immoral act is an evaluative category, determined in each specific case by the employer himself, focused on the moral norms of society. In practice, these clearly include crimes, as well as some administrative offenses, for example, appearing in public place in a state of severe intoxication, public foul language, other cases of hooliganism, giving deliberately false testimony, using false documents, using unauthorized educational measures against pupils and students. The fact that an offense has been committed must be recorded, although it is not necessary that it be recorded in a court verdict or in a resolution in a case of an administrative offense. This may be information that the employer can trust, written in a certain way (memo). Also, a special subject is employees who are engaged in educational activities, for example, teachers, lecturers educational institutions, industrial training masters, educators, and so on.

Dismissal under this clause can also occur either in the form of a disciplinary sanction if the offense was committed at the place of work in connection with the performance of job duties, or it can be dismissal on a general basis if the offense is committed outside the place of work, or at the place of work, but not in connection with with the performance of work duties. In the latter case, the period for dismissal is one year from the date of discovery of the misconduct.

Clause 9 Making an unjustified decision by the head of the organization (branch, representative office), his deputies, the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property. Dismissal under this point is a disciplinary sanction. In deciding whether it was decision unfounded, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of such a decision and whether they could have been avoided if a different decision had been made. When qualifying a decision as unreasonable, the normal degree of business or economic risk acceptable in each specific circumstances of the case must be taken into account. The presence in the employee’s actions of at least a sign of good faith (that is, acts flawlessly) and reasonableness (adequacy) should already exclude the possibility of dismissing the employee on this basis.

Examples: the head of an organization has a need to purchase goods and makes an advance payment to an unverified counterparty; it turns out that he is a fraudster. Did the manager have the opportunity to check the activities of this counterparty and adequately assess the behavior of the representative of this counterparty?

Clause 10 in the event of a one-time gross violation by the head of the organization (branch, representative office) and his deputies of their labor duties. Dismissal here is also disciplinary. The question of whether a violation was gross is decided taking into account the specific circumstances of each case. Therefore, the burden of proving the fact of the violation and its gross nature falls on the employer. In judicial practice, it is proposed to regard as such violations, for example, failure to fulfill the duties assigned to the manager and his deputies, which could result in harm to the health of employees or damage to the property of the organization. Example: submission of false accounting and tax reporting.

Clause 11 in the event that the employee provides false documents to the employer when concluding an employment contract. Dismissal under this clause is not a disciplinary sanction, because it takes place before the establishment of an employment relationship. Question for the legislator: might it be worth expanding the scope of responsibility? Dismissal under this clause is possible when the employee provides the employer with a false document, which must be presented to them when concluding an employment contract.

Clause 12 is no longer valid

Clause 13 in the case of members of the collegial executive body of the organization provided for by the employment contract by the head of the organization. “Grim dispositiveness” within the framework of the law. Example: failure to fulfill the company’s profit plan, reduction in revenue, liquidity indicators, and so on.

Clause 14 in other cases established by the Labor Code and other Federal Laws. This refers to additional or in other language special grounds for dismissal for certain categories of workers

General note in relation to all points: When applying a disciplinary sanction to an employee who has committed a disciplinary offense, the following must be taken into account - based on general principles legal liability, such as fairness, equality, proportionality, legality, guilt and humanity, the employer must, among other things, have evidence that when imposing a penalty, the gravity of the offense and the circumstances in which it was committed, as well as the employee’s previous behavior and attitude were taken into account to work. If, when considering a dispute about reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

Today, everyone who is employed knows how important all the nuances that are associated with work are. First of all, this is explained by the fact that this area is clearly and completely regulated by law, so it is quite difficult to move away from the practice that has developed over many years.

It is quite rare that problems arise throughout the entire workflow. As practice shows, most issues arise immediately at the moment when one of the parties wants to break the employment relationship. Such situations can cause a lot of headaches for both the employer and the employee.

General provisions on the procedure for terminating an employment contract

It is worth noting that dismissal in the legal field is perceived as termination of the employment contract. Such actions require certain actions from both parties to such an agreement. Therefore, it is important to become familiar with the process of severing labor relations.

If you follow experience, quite often employees go to court for wrongful dismissal. In this situation, we are talking about the fact that the employer did not adhere to the procedure provided for by the contract or the Law. Therefore, it is important to study the process of terminating the agreement and the consequences that both parties expect after such actions.

Therefore, we invite you to familiarize yourself with the information that details the dismissal procedure. Regulatory – legal framework in this area is quite large and not always understandable to those who do not deal with jurisprudence in everyday life. Therefore, we have selected the most important aspects and tried to present them in a simple form. If you are faced with such a situation, be sure to read the article.

The concept of an employment contract and its termination

First of all, it is necessary to consider the key concepts that will appear in our article, since without this it will sometimes be difficult to understand what exactly we are talking about. First, let's define what an employment contract is. In accordance with current legal norms, this is a bilateral agreement between an employer and an employee to provide a certain position and perform certain duties. That is, it is a document that regulates relationships.

It is worth noting that not all organizations have recently drawn up such contracts. Some companies choose to discard such actions. This is due to the fact that the company is required to pay taxes for each employed employee. Therefore, unscrupulous employers simply want to save money. But here it is worth understanding that, first of all, this is illegal, because such an obligation is directly enshrined in regulatory legal acts. Secondly, such actions directly protect the rights of both parties, since they regulate their relationships in detail.

That is, before you start work, ask your boss to draw up an employment contract. This will help you protect your rights upon dismissal. As we have already found out, payment from work is called termination of the employment contract. This procedure is a certain set of actions, the result of which will be the termination of all rights and obligations provided for in the employment contract between these parties.

The most important thing in such a case is that the procedure for terminating the agreement must necessarily comply with the norms of the Law. Otherwise, such actions will be declared invalid or appealed in court.

It is worth noting that all actions that need to be taken to terminate the relationship between employer and employee can be specified in the contract. But quite often such documents contain a reference norm, which directly indicates that the reasons for such actions may be situations that are provided for by the legislative framework. In this case, you will certainly have to become familiar with the regulatory framework.

Grounds for termination of an employment contract

Like any other legal action, the termination of a work relationship requires specific reasons to be stated. In this case, such provisions are directly enshrined in regulatory legal acts. The legislator provided that these include:

mutual consent of both parties to the contract;
the end of the period for which such a contract was drawn up;
termination of relations at the initiative of the employer;
termination of relations at the initiative of the employee;
using the procedure for transferring an employee to another organization or to another position;
termination of the agreement due to changes in the form, structure, operating principle of the company;
unilateral refusal to conclude new contract, due to changes in working conditions;
refusal to draw up a new contract due to a change of place of work;
due to circumstances that do not depend on the will of all parties to the agreement;
inconsistency of the terms of the contract with legal norms, which make it impossible to continue cooperation.

Such provisions are complete and it is on their basis that the employment contract can be terminated. Among them are the most common ones. This is the consent of both parties and the initiative of each of the participants in such a contract. Therefore, we suggest that you familiarize yourself with each of these situations in more detail.

Termination of an employment contract by an employee

This form in everyday life is called “at one’s own request.” It is worth noting that in such situations there are also certain conditions under which the employee has the right to use this option for dismissal. Today the Labor Code includes:

impossibility of continuing further cooperation (for example, he is enrolled in an educational organization or goes on retirement due to reaching a certain age);
the employer violated the working conditions stipulated by the contract, federal laws, normative and legal acts of a local nature.

In this case, if a person sees that his situation falls under such criteria, he has every right to submit a special statement to his employer, which will indicate his request to terminate the employment contract indicating the reason for such dismissal.

Termination of an employment contract by an employer

Quite often it happens that the initiative to terminate the employment relationship comes directly from the organization itself. In such a situation, the head or head of the human resources department needs to become familiar with the reasons that may be the basis for taking such actions. The legislator included:

termination of activities legal entity or an individual entrepreneur who is specified in the employment contract as an employer;
reduction in the number of employees at the enterprise;
insufficient knowledge and skills of the employee for the position he occupies and the work he performs in the labor process;
changes in the ownership of property used in the employer’s activities;
failure by the employee to fulfill his labor duties as specified in the contract. At the same time, such actions must occur repeatedly or for one of them disciplinary liability was imposed on the employee;
one-time violation of the rules of work or failure to fulfill one’s duties:

1. For absence from work for the entire shift, its duration does not matter, without good reason.

2. An employee appears at the workplace drunk or under the influence of drugs.

3. Dissemination of statements that constitute a secret protected by law.

theft of property or material assets that belong to the organization;
committing an immoral act by employees whose obligations include educational functions.

These are the most common reasons. As a rule, it is on their basis that the employer builds the procedure for dismissing an employee.

The procedure for terminating an employment contract at the initiative of an employee

It is especially important to outline the process of terminating the relationship between employee and employer. Such actions must be carried out strictly in accordance with the law, otherwise the person will be held liable for unlawful acts.

Depending on who exactly is terminating the agreement, the procedure is established. That is, there is a direct connection to the subject. Therefore, it is worth considering them separately. Let's start with the employee's initiative.

If an employee has a desire, and it coincides with the conditions, he can provide his employer with a special statement, which will directly indicate the need to resign. Such a document must contain:

names of the parties;
main text;
indication of the reason;
signature.

First of all, indicate the name of the organization and the employer. You need to indicate your full initials; it is best to copy them from the employment contract itself.

The main text contains the title of the document. Here, in the middle of the sheet, you must indicate “Application for resignation at your own request.” Next comes the petition itself to terminate the employment contract. You need to indicate when, where and by whom it was signed. In addition, if it had a number, then you also need to write it down.

The indication of the reason must comply with the law. That is, it is necessary to write one of the reasons discussed in the previous sections of the article. In addition, you can directly make reference to the normative legal act, indicating its title and article number.

At the end, the document must be certified by the signature of the employee himself. The date of its submission to the manager or authorized person is also entered. If you write an application earlier, you do not need to set a date. It is best to indicate such a number before the submission itself. In order to view such a document, you can download a sample application for termination of an employment contract:

Once such a document is ready, it must be submitted to the human resources department or employer. He must accept it. Next comes a period characterized by special rights and obligations of the parties.

Thus, over the next 14 days, the employee is still required to carry out his usual work activities. They are paid according to the same regime that existed throughout the entire employment relationship between the parties. On the last day of this period, the employer provides him with a work book and other documents that were submitted to him upon hiring.

There is one more nuance. During this two-week period, the employee has the right to withdraw his application at any time. At the same time, the employer does not have the right to refuse his employee and continue the employment relationship as usual. That is, if a person suddenly changes his mind and wants to leave his job, then he needs to contact the employer and withdraw his request for termination contractual relations.

But there is also a certain exception here. So, if during such a period the employer hired another person to his workplace, who, according to the Law, belongs to the category of people who have the right to the prerogative in obtaining a job, then it will not be possible to withdraw the application. But, without fail, an employment contract must already be concluded with him, otherwise such an agreement will not be recognized.

There are categories of persons who, according to the Law, are allowed to change their decision after 14 days have passed. Thus, military personnel who wrote a statement of their own free will and the reason for it was retirement are given three months after dismissal to regain their position. At the same time, such a workplace cannot be worse than that, which was before retirement.

The procedure for terminating an employment contract at the initiative of the employer

Termination of an employment contract at the initiative of the employer has its own characteristics, which are primarily related to its administrative functions. Except special conditions, which were discussed above, there is also a certain procedure that is directly provided for by law:

agreeing on all conditions for terminating a work contract with employees of certain categories;
studying the category of workers who cannot rightfully be dismissed;
payment of severance pay as compensation for termination of employment relations between the parties.

In addition, there are situations when the employer cannot independently decide on the issue of further termination of cooperation with a certain person. In such situations, he will definitely need advice from the Trade Union. Today the category of such cases consists of:

dismissals when the number of employees in the organization is reduced;
termination of an employment contract due to insufficient competence of the employee in the area where he performs his duties;
termination of the relationship as a result of repeated violation by the employee of the rules of conduct and internal regulations, commission of a disciplinary offense.

There is a special procedure for these situations. In making such decisions, the employer cooperates with representatives of the Trade Union. At this stage, before the final verdict is made, he does not have the right to terminate the employment relationship with the employee.

Particular attention should be paid to pregnant women, because, as practice shows, the dismissal of such persons is most often the reason judicial trial. Thus, the law provides that an organization or enterprise of any form of ownership has absolutely no right to terminate employment relations with such people. The only exception would be the complete liquidation of the company itself, which simply makes further cooperation impossible.

If the employment contract with a certain employee is terminated, a special notice of termination of the employment contract is issued. It takes the form of an order from a body authorized for such actions within the structure of the company or an official. Such a document must necessarily contain the name of the person being fired and the very reason for such actions. In addition, the date of adoption of such a document must be indicated.

The law provides that, at the initiative of the employer, dismissal can occur no earlier than 2 months after the employee is informed of this fact. During this period, work continues as usual. On the last day, the employee is given a work book and other documents that were required from him to conclude an employment contract.

If an employee does not agree with his employer’s decision or considers it illegal, he has every right to go to court to seek justice. Recently, this procedure has been very popular. First of all, this is due to the fact that employment contracts, which are drawn up at the initial stage of the relationship, as a rule, are not always drawn up correctly. This gives the employee the opportunity to appeal an unlawful decision to the Themis authorities, based on the fact that the employment contract is incorrect.

That is, the timing of termination of the employment contract at the initiative of both parties will be completely different. This must be taken into account and observed, since quite often such cases occur in the courts. If a party does not adhere to the terms specified in legislative framework– this will become the reason for recognizing the illegality of termination of the employment contract.

Termination of a fixed-term employment contract

There is a category of contractual relations in the field of labor, which are secured by contracts, where the duration of the relationship between the parties is clearly established. According to the Law, such terms do not exceed five years and regulate only certain categories of cases.

Such agreements have a certain procedure for termination. In this situation, everything directly depends on the conditions that were specified in such a contract. So, if it was concluded, for example, for three years, then after this period it loses its legal force. At the same time, the employer is obliged to warn his employee about this in advance. In addition, such actions must be carried out no later than three days before the contract ends.

If the contract was drawn up for certain work, then its completion will be characterized directly by the final completion of such work. That is, here the fact of completion of the relationship will be the very fulfillment of all the conditions provided for by the employment agreement.

If the contract was drawn up to replace another employee who, due to certain circumstances, could not perform his duties, then it terminates when such employee takes his previous position. Another category consists of seasonal work. In this situation, they also end with the fulfillment of their duties.

That is, this category of breaking off relations is characterized by its automaticity, since it has certain indications of the time frame for cooperation, which often simplifies the task for both parties. But it is worth noting that both parties to the employment contract have every right to use those types of dismissal that were provided for in the previous sections.