How can you fire an employee without his consent if he does not want to leave? Law, features of the procedure. Legal procedure for dismissing an employee without his desire

Dismissal is a routine job for an experienced HR manager. Some employees leave of their own free will, others at the “request” of the employer. In any case, for each reason there is its own procedure. Strict compliance with it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other, at protecting organizations from unfounded claims of former employees. Let's look at how to fire an employee in compliance with all necessary formalities.

Dismissal options

Labor legislation provides for 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

The employee’s own desire is the most common basis for terminating a relationship with the employer:

1. The employee writes a letter of resignation indicating the date.
2. The employer is obliged to satisfy this request.

As a rule, there are no difficulties with registering dismissal at the initiative of an employee. The exception is issues related to mandatory “working out”. The standard is 2 weeks, which the employee continues to work from the moment the application is submitted.

Certain categories of personnel have the right to a reduced period of notice of dismissal. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not manage to pay the resigning employee in time and issue him a work book.

The employer's initiative involves more difficult process dismissals. If this is a reduction in staff or liquidation of a company, the procedure is clearly described in the legislation and does not pose any problems from the point of view of documentary support. The main task here is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to dismissing an employee unilaterally by the organization, the employer’s “freedom” is clearly limited: desire alone is not enough for this. There is a list of reasons for which an employee can be fired, and a special procedure for recording violations for each of them. There are no documented misconduct by the employee - there is no reason for dismissal.

"Compromise" termination option labor relations is an agreement of the parties. In this case, the employer and employee amicably agree to part ways under certain conditions. Most often it looks like this: the organization is interested in dismissing an employee without the risk that he will change his mind and withdraw the application “on his own.” The employee “bargains” to receive monetary compensation for his care.

Dismissal at the request of an employee

An employee has the right to terminate the employment relationship at any time. To do this he needs:

• fill out an application for resignation of your own free will 2 weeks before leaving;
• work the assigned days;
• complete the transfer of affairs to another employee, if such a procedure is provided in the organization.

It does not matter what contract was concluded when entering the job - fixed-term or indefinite. In any case, the employee’s desire is decisive, and the employer has no legal grounds to interfere with him.

The application is written addressed to the manager with the wording: “I ask you to dismiss me at my own request, “XX” month in words XXXX year”, the current date and signature.

If an employee leaves without working, he must include in the application the reason for dismissal:

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another duty station/abroad;
• violation of laws, conditions employment contract on the part of the employer.

In such cases, dismissal occurs on the date specified by the applicant. If required, a supporting document (certificate from the institute, transfer order, etc.) must be attached to the application. An employee can leave “one day” without a good reason if the employer meets him and allows him not to work.

Without observing the two-week period, you can dismiss an employee on vacation if he submitted an application before it began or during the vacation, but no later than 14 days before going to work. Then the first working day after vacation will be considered the date of termination of the employment contract.

Employees on a probationary period, signed under a fixed-term employment contract for a period of up to 2 months, and seasonal workers work not the standard 14, but only 3 days.

From the employer's perspective, the procedure for voluntary dismissal looks like this:

• receipt of an application endorsed by the head of the company;
• creating an order;
• making an entry in the work book;
• full settlement with the employee regarding wages;
• preparation of documents necessary for further employment (2-NDFL certificates, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the reason for leaving, the personnel documents will indicate the same reason under which article to dismiss the employee - Art. 77 Labor Code of the Russian Federation. On the day of dismissal, the employee reads the order and receives a work book. Until this moment, a person can change his mind and withdraw the application if a replacement has not yet been invited to take his place, which “cannot be turned back.”

Dismissal by agreement

The agreement of the parties implies a quick and simple dismissal procedure:

1. If the initiative comes from the employee, he submits a letter of resignation to the manager.
2. If an employer “asks” an employee to leave the company, he sends him a written offer.
3. The parties discuss the terms of termination of the employment contract.
4. The organization and the dismissed person sign a bilateral agreement.
5. The HR department issues an order and fills out a work book. The basis for dismissal is clause 1 of Article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of capabilities and compliance legal rights. The employer can, by agreement with the employee, dismiss him on any day, even if he is on vacation or sick. A quitter cannot “change his mind” and cancel a signed document unilaterally. The employee is also not offended - during the negotiation process, he has the right to protect his material interests and demand compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer for purely economic reasons - the need to reduce the number of employees or completely close the organization. In the second case, all personnel are expended; in the first case, the units and positions that are being laid off are expended, with the exception of those categories of employees who cannot be laid off by law.

If it is necessary to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee is not suitable for the position held or that he has committed misconduct in labor discipline. Most often, dismissal occurs for absenteeism, showing up at work drunk, systematic violations with disciplinary punishment.

To avoid infringement of personnel rights, legislators did everything to ensure that a person could not be fired without good reasons. It is quite difficult to “prosecute” an employee towards whom his superiors have a personal enmity, although abuse on the part of employers cannot be completely ruled out.

Reduction of staff and liquidation of the company

Reduction has a clearly regulated process for dismissing part of the staff:

1. The decision on reduction made at the enterprise is fixed by order. For the personnel service, this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and changes in the staffing table.
2. 2 months before the date of layoff, all employees subject to it are notified in writing under signature.
3. The employer is obliged to offer the employee another position if such a possibility exists. A transfer is issued for people who agree to the proposed vacancies. The rest are preparing to retire.
4. The notified employee has the right to leave early without waiting for the layoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go freely. Compensation for the remaining days before layoff early dismissal does not deprive the employee.
5. 2 months before the layoff, management must notify the trade union body, if there is one. In case of mass layoffs of workers - 3 months in advance, and also submit lists to the employment service.
6. A dismissal order is prepared for each employee (form T-8) with reference to the basis document. The order is sent to the person being dismissed for signature.
7. An entry is made in the work book indicating the reason for dismissal - clause 2, part 1 of Art. 81 TK.
8. The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of average salary.

Dismissal due to staff reduction does not apply to certain categories of employees:

• pregnant women and women on maternity leave;
• single mothers with children under 14 years old, with a disabled child under 18 years old;
• trade union members and workers speaking in negotiations with the employer on behalf of the team.

When one of several equivalent positions is eliminated, the choice of workers to leave and who to stay falls on the employer. However, even here the authorities are deprived of complete freedom. All other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important,” the legislation gives some of them a priority right to keep their jobs. This:

• persons with 2 or more dependents;
• the only breadwinners in the family;
• received injury or occupational disease from this employer;
• disabled participants in combat operations;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. You cannot fire an employee if he is on sick leave or on vacation. To lay off temporarily disabled people and vacationers, you will have to wait until they return to work.

All these exceptions do not apply if the organization is completely liquidated. The liquidation procedure is practically no different from layoffs, except for one thing: all personnel of the organization are deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers, etc.) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it is completely ceasing its activities.

Dismissal of labor discipline violators and unfit workers

An employee who systematically violates discipline causes management to understandably want to get rid of him. Labor legislation allows you to dismiss an employee immediately only for a gross disciplinary “crime”:

• absenteeism;
• presence at work in a state of intoxication (alcohol, drugs), confirmed by a medical examination;
• disclosure of information protected by law (state, commercial secret), proven in court;
• theft, embezzlement, material damage to an employer or a third party recognized by a court;
• violations of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teaching staff;
• presentation of false documents when applying for a position.

Dismissal for a single gross violation is a disciplinary sanction. The procedure for its registration includes:

1. Detection of violations.
2. Recording the offense (drawing up a report, protocol, examination, conducting a medical examination, etc.).
3. Receiving written explanations from the offending employee.
4. Consideration of the circumstances of the case.
5. Drawing up a dismissal order in the T-8 form, with references to supporting documents (acts, reports, explanatory notes, court decisions, etc.) indicated as the basis.
6. Bringing the order to the employee for signature.
7. Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to fire an employee for absenteeism: if a person is absent from work for the entire day or 4 hours in a row, it is necessary to document this fact and prove that the employee was not there without a good reason.

Until an explanation is received from the “truant”, the “presumption of innocence” applies. The employee could be on leave, vacation, on sick leave, be summoned to court, get into an accident on the way to work, etc.

If the employee has not received any clear explanations or supporting documents (certificate of incapacity for work, subpoena, traffic police report, etc.), the offense is regarded as a gross violation labor discipline and is qualified under Art. 81 Labor Code of the Russian Federation, part 1, clause 6, subparagraph “a”. This basis will be recorded in the dismissal order and in the work book.

List of documents confirming the legality of such dismissal:

1. Report of absence from work.
2. Explanatory note from the employee or an act of refusal to provide explanations.
3. Order of disciplinary action/dismissal.

If the employer violates this procedure, even if he has good grounds for dismissing the truant, the “offended” employee has every chance to be reinstated through the court.

It is also possible to fire a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming “chronic” indiscipline may collectively serve as grounds for severing employment relations.

Another “touchy” question for employers is how to properly fire an employee who, in the opinion of management, is not suitable for the position held. There is no other option other than arranging a certification for an incompetent employee. It is necessary to issue an order, create certification commission and evaluate a person’s professional suitability based on clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can formalize your dismissal with the wording “due to inadequacy for the position held.” The period within which the employment contract must be terminated is no later than two months after certification.

When disputes arise related to wrongful dismissals, the courts often side with employees. The reason is simple: it is a rare organization that can boast of perfect order in internal regulations and personnel documents. The absence of schedules, job descriptions, provisions on certification and labor regulations, an illiterate employment contract, “missed” steps when initiating dismissal - all this can serve as evidence that the dismissal was carried out in violation of the law.

Often, an employer threatens to fire a negligent employee under an article, although legally the term “dismissal under an article” does not exist. Any dismissal, in principle, occurs under one or another article of the Labor Code of the Russian Federation, but some articles of the Labor Code may negatively affect the further employment of the employee. In Article 81 Labor Code the reasons why an employer can dismiss an employee are clearly defined.

Now there will be fewer of us...

Paragraph 4 of this article states that the manager, his deputies and the chief accountant can be fired when the owner of the organization changes. In this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated, everyone is subject to dismissal, this will even affect pregnant women and young mothers.

When downsizing or downsizing, there are several groups of people who have the exclusive right not to lose their jobs. These people include breadwinners and people with long, uninterrupted work experience. this enterprise, in an institution, organization.

Inconsistency...

Another reason for dismissal is specified in paragraph 3 of Art. 81 of the Labor Code: “Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.”

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor of the subject. A special order is issued regarding its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible, for example, in terms of deadlines, you can write a complaint to labor inspection and challenge the certification results in court. A final report is drawn up on the results of the certification.

Dismissal is permitted if it is impossible to transfer the employee from his written consent to another job available to the employer. This can be either a vacant position or work corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses in writing all offers made to him, the employer may fire him.

Failure to comply...

An employee can also be fired for failure to perform official duties. So, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the reason for dismissal may be “Repeated failure by the employee to comply without good reasons labor duties if he has a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

comments, reprimand or dismissal for appropriate reasons.

To dismiss an employee on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation, failure to fulfill labor duties must be:

a) repeated;

b) without good reason.

If there are valid reasons, the employee must put them in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Ivanov, late again!

Another reason for dismissal, as stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is “Single gross violation of labor duties by an employee.”

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration. The most important valid reason is sick leave. If after returning to work you do not provide sick leave, then the employer may give you absenteeism.

If you had other extenuating circumstances, they must be stated in writing. Management decides how valid your reasons are.

If you need to be absent from work, write a statement in two copies, on which your management puts its “I do not object” resolution, date and signature. The first copy is with your superiors, keep the second one with you.

It's different when you're late.. “A single gross violation is also considered absence from the workplace without good reason for more than four hours in a row during a working day (shift).” That is, if you are an hour late for work, you cannot be fired on this point. However, for repeated lateness, a disciplinary sanction can be imposed and subsequently dismissed under clause 5 of Art. 81, as for repeated failure by an employee to fulfill his work duties without good reason.

Theft and embezzlement

Perhaps the most indisputable reason for dismissals is contained in subparagraph D, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation “Commitment at the place of work of theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses.”

It is already clear from the text of the law that in order to dismiss an employee on this basis, a court decision or a resolution of an authorized official is necessary, i.e., an investigation must be conducted. However, in practice, an employee may be asked not to make noise, which in various circumstances can affect both the reputation of the employee himself (even if he is not guilty of anything) and the reputation of the organization itself. And here the choice is yours.

Unsuitability

Professional incompetence is a lack of conformity professional qualities employee of the position held. In other words, if an employee cannot cope with his duties, or copes below the established average level, such an employee may be professionally unsuitable for this position. What to do if you were fired for?

Be careful!

In fact, there are many more reasons for dismissing an employee than those listed above. Full list The grounds for dismissal contain Art. 81 of the Labor Code, which you need to know by heart.

The Labor Code also provides that termination of an employment contract at the initiative of the employer may occur in other cases provided for in the employment contract with the head of the organization and members of the collegial executive body of the organization. And in each case, checks must be carried out to determine the legality of your dismissal. Thus, before signing an employment contract, carefully study it so as not to get unexpected “surprises”.

What is written with a pen...

What to do if, in your opinion, there is an illegal entry in the labor record? According to Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal grounds or in violation established order dismissal, or illegal transfer to another job, the court, at the request of the employee, may make a decision to recover in favor of the employee monetary compensation for moral damage caused to him by these actions.

Moreover, if the court finds the dismissal illegal, the employee has the right to ask the court to change the wording of the grounds for dismissal to dismissal at his own request. In accordance with clause 33 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, if there is an entry in the work book about dismissal or transfer to another job that has been declared invalid, the employee, upon his written application, is issued a duplicate work book at his last place of work, into which all entries made in the work book are transferred, with the exception of the entry declared invalid.

Due to the incredibly frequent requests for help regarding dismissal issues, we have compiled the TOP 7 specifically for job seekers important rules– Dismissals under the article. Information was collected during 2013-2015. so that you can confidently communicate with your employer. If we helped you, please express your gratitude in the comments at the bottom of the page. We wish you a peaceful resolution of labor issues with employers. And professional success to your HR colleagues!

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08.05.2014 78320

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself - nerves and time. But why sometimes, knowing that a break in relations is inevitable, do we postpone the decision for months?

The dismissal process can be divided into three stages: making a decision to dismiss, informing the employee, and legal registration of dismissal.

Decision-making

The decision to dismiss arises in the head of the manager at first unconsciously, implicitly and matures for some time. As a rule, from the moment the thought appears that an individual employee has no place in the company or department, until the announcement to him decision taken months pass. Often managers delay dismissal because they are not ready to say it out loud. The most common reasons for such delay can be identified.

• “If I admit the need for dismissal, I actually admit that I made a mistake when I conducted the interview, I didn’t see it, I didn’t recognize it, I taught the wrong thing, I didn’t pay enough attention.”
• “I feel sorry for dismissing him; he has a difficult financial situation.”
• “It’s so frustrating to report this. I hope the situation will resolve itself."
• “Staffing problem! I’ll fire this one, but where is the guarantee that the next one will be better? Who will work?

All these reasons are a sign of excessive softness of the leader. By delaying making a decision, you deprive your business of efficiency and face the fact of lost profits due to the fault of a careless employee.

Managers sometimes believe that it is better to have a bad employee than none at all. The directors say: “I can’t get rid of this employee now, because the rest will have to work even more, there are not enough people.” Of course, you need to choose a convenient moment to quit. But there will never be enough time, staffing, and there will always be a reason to say to yourself: “I don’t have time to interview candidates right now” or “Maybe he’ll come to his senses.” If bad employees do not want to improve, they need to be fired.

Perhaps right now there is a person working on your team whom you want to get rid of, but are delaying making a decision. Analyze the employee’s behavior by refuting or agreeing with the following statements:

1. The employee takes a lot of time, energy, money, and his performance does not improve. He does not (does not want to, cannot) fulfill the tasks assigned to him.
2. The employee shows disrespect for you and the team (customers, if the position involves communicating with clients).
3. Personally, you are uncomfortable working with this person; he is unpleasant to you.
4. The employee is disloyal to the company and does not share its values ​​and principles.
5. The employee is conflict-prone and regularly creates difficult situations.

If the answers are ambiguous, then give the person another chance. Give him the opportunity to improve within a certain time frame. If you agreed with 4 statements, decide to break up right now and set a date for the final conversation.

Informing an employee about dismissal

Often in the final conversation, the manager lists what the person did badly and gives negative examples. In such words lies an attempt to prove to both oneself and the employee that he really does not correspond to the position he holds. This is a serious mistake. When you voice mistakes or shortcomings, be prepared for the person to defend himself - this is a natural reaction. He may not show his resentment, but when he goes outside the office, at every opportunity he will talk about your disadvantages and the problems of the company. Your task is to conduct the conversation so that the employee does not leave embittered and does not discredit the name of the organization.

The dismissal procedure should be an additional reason for feedback and be carried out according to the “plus-minus-plus” formula. Start a conversation with a list positive qualities employee, based on which you once hired him. Then explain why you are unhappy and what caused the dismissal. Finishing the conversation, once again highlight a few advantages that, in your opinion, are his strengths and will be useful to him in his new job. Any person has the right to understand why they want to break up with him.

When conducting the final conversation, it is better to be guided by the following rules. Talk to the person being fired personally and privately, be attentive and polite, but do not sympathize. Stay correct: voice only facts, not emotions. Give the employee the opportunity to speak, do not agree or challenge his words, just listen. Speak firmly, because the decision has already been made. End the conversation on a positive note - every person has something to praise for.

Legal registration of dismissal

It is important to fire an employee legally and without consequences. The Labor Code offers us several options; let’s look at the most common ones.

Classic option - at your own request(Clause 3 of Article 77 of the Labor Code of the Russian Federation). This method is the simplest for both parties: the manager invites the employee to write a letter of resignation in his own hand, the employee agrees. If he refuses to write a statement of his own free will, then you can sympathize with the manager, since he will have to try to force the employee to do it. Each remark must be accompanied by a reprimand and written documentation. When will it be enough sufficient quantity documentary evidence of the employee’s failure to fulfill his duties, you can talk again with the employee and invite him to voluntarily write a statement in order to avoid dismissal under the article. Most likely, after reviewing the documents and talking with you, the employee will write a letter of resignation of his own free will.

You can go the other way, namely, change the employee’s working conditions: transfer his clients and part of his powers to another employee, do not increase wages, and deprive him of bonuses. In this case, everything depends on the personality of the leader and his moral principles.

But these methods have their drawbacks - they incite war and affect relationships within the team as a whole. Angry, the fired employee may turn to the tax office, the court, your competitors, or all of them at the same time, turning your existence into a nightmare.

Another way to break up - termination of a trade agreement by agreement of the parties(clause 1, part 1, article 77 of the Labor Code of the Russian Federation). This method is convenient to use when both parties are determined to sever the employment relationship. In this case, the date of dismissal is selected taking into account their mutual interests, for example, when a replacement for the employee is selected or when he finds a new job. If it is legally correct to formalize the termination of an employment contract by agreement of the parties, then it is necessary to conclude a termination agreement, which must stipulate the date and conditions of termination. IN real life the parties agree on the terms of departure orally, and when the agreed date arrives, the employee writes a letter of resignation, and the entry in the work book is made on the basis of paragraph 3 of Article 77 of the Labor Code, that is, “at his own request.”

Opportunity dismissal due to failure to pass probationary period must be provided in advance. The probationary period usually lasts up to three months, and during this period the employment contract can be terminated at any time. Please note that the probationary clause must be included in the employment contract and, preferably, in the order and application for employment. Otherwise, the employee is considered hired without a probationary period, and he cannot be fired on the basis of failure to pass the test. If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test. In this case, it is advisable to confirm the reasons with written evidence.

Termination of a fixed-term employment contract passes easily and simply after the expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before dismissal.

Dismissal based on certification results- a risky step, since in 90% of cases the court decision is made in favor of the employee, regardless of how well the employer’s documents are drawn up. If an employee cannot cope with his job responsibilities, then he can be dismissed based on the results of certification (in accordance with subparagraph “b” of paragraph 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a Regulation on Certification, as well as an approved certification schedule or order, which is created immediately before the certification. The employee must be familiarized with all these documents in advance against signature. It is better for the head of the company not to be a member of the certification commission, since then the employee will not have the opportunity to file a complaint about disagreement with the results, which are issued in a separate order. If the results of the certification are unsatisfactory, it is necessary to give the employee time to correct it and re-certify him. If the results of re-certification are unsatisfactory, it is better to offer the employee another job, and if he refuses, you can safely fire him. Most often, such dismissal involves a conflict between the company and the person, and therefore this measure should be used only in extreme cases. If before the certification the employee did not have written comments or complaints from colleagues, then such dismissal is easily challenged in court, and in most cases the judge takes the side of the former employee.

If an employee is systematically late, then he can be dismiss due to non-compliance with labor discipline(Clause 5 of Article 81 of the Labor Code of the Russian Federation). The most important thing in this case is the clause of the employment contract, which clearly states the start and end times of the working day. In addition, the time sheet must record the time of arrival at work. If an employee’s tardiness is chronic, it is necessary to draw up a report of tardiness, and then require the employee to written explanation on the basis of Article 193 of the Labor Code of the Russian Federation. If the employee does not want to write an explanatory note, he should draw up a statement of refusal and get the signatures of three other employees on it. If there are three written comments, you can issue a reprimand, after which you can safely dismiss such an employee. I would like to emphasize that if you want to fire an employee under an article, it is important to carefully prepare written documents (memos, comments, orders) so that in the event of a legal dispute you have strong evidence.

Despite the abundance of ways to part ways with an employee, the best is voluntary dismissal. Try to do everything possible to ensure that the employment contract is terminated precisely on this basis, regardless of the presence or absence of a conflict with the employee. The main thing for you is to avoid lawsuits that entail costs. In addition, there is a possibility that you will be forced to reinstate the employee during the trial. It is better not to bring the dismissal to trial and resolve the situation peacefully.

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself – nerves...

It is rare that an organization does not need to fire an employee. There can be many reasons for this. For example, an employee does not get along with the team, copes poorly with his responsibilities, suffers from some kind of addiction, etc. Naturally, you must first try to negotiate with the employee so that he resigns of his own free will (clause 3, part 1, article 77 Labor Code of the Russian Federation) or by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation).

However, it happens that an employee does not want to leave, despite any arguments. In this case, the employer can only exercise the right to dismiss the employee on his own initiative. If an employer decides to resort to this method of terminating an employment contract, then he should be very careful and careful. Since one careless action or failure to comply with legal requirements can lead to a conflict, the resolution of which will be transferred to the courtroom. And this threatens not only monetary costs, but also the reinstatement of the dismissed employee.

All grounds for dismissal at the initiative of the employer are set out in Article 81 of the Labor Code of the Russian Federation. Let's figure out how to use the most “popular” separation methods.

Inconsistency of the employee with the position held

An employer has the right to terminate an employment contract with an employee who does not correspond to the position held or the work performed due to insufficient qualifications confirmed by certification results (clause 3, part 1, article 81 of the Labor Code of the Russian Federation). The compliance of the actually performed duties and qualifications of employees with the requirements of job characteristics is determined by the certification commission, therefore, the dismissal of an employee on the specified basis without certification is illegal (letters of Rostrud dated 04/30/2008 No. 1028-s, dated 03/06/2013 No. PG/1180-6-1) .

Dismissing an employee due to inadequacy for the position held is not very popular among employers, since it is considered too labor-intensive and time-consuming.

In addition, the employer may dismiss an employee who, based on the results of certification, does not correspond to the position held, only if it is impossible to transfer him to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which he can perform taking into account his state of health (Part 3 of Article 81 of the Labor Code of the Russian Federation). The employee must be offered all vacancies available to the employer in a given locality that meet the specified conditions (vacancies in another locality are offered if this is provided for in the labor or collective agreement). The proposal to transfer the employee should be familiarized with signature.

note

The chief accountant cannot be fired due to loss of trust. TO this conclusion came from the Supreme Court of the Russian Federation in its ruling dated July 31, 2006 No. 78-B06-39.

If the employee does not want to transfer (a written refusal must be received) or there are no suitable vacancies (the employee must be notified of this, and the absence of vacancies must be confirmed staffing table), then you can proceed to terminate the employment contract. Please note that the period during which, based on the results of certification, the employer has the right to make a decision to dismiss an employee is not defined by the Labor Code. However, in paragraph 12 of the resolution of the State Committee for Science and Technology of the USSR and the State Committee for Labor of the USSR dated October 5, 1973 No. 470/267, which applies to the extent that does not contradict the Labor Code of the Russian Federation, it is said that a decision must be made to transfer an employee recognized as unsuitable for his position to another job from his the manager may consent within no more than two months from the date of certification. If the employee cannot be transferred to another job, the employer may terminate the employment contract with him within the same period.

It is worth noting that on this basis it is impossible to dismiss pregnant women, employees who have worked in the organization less than a year(clause 4 of resolution No. 470/267), women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under the age of 18), workers who do not have a diploma special education, if it is not required by law, etc.

Repeated failure to fulfill job duties

The basis for termination of an employment contract may be the employee’s repeated failure to fulfill his job duties without good reason if he has received a disciplinary sanction (Clause 5, Part 1, Article 81 of the Labor Code of the Russian Federation). According to paragraph of the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 (hereinafter referred to as Resolution No. 2), dismissal in this case is possible only on the condition 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 not withdrawn or repaid. Let us remind you that if within a year from the date of application of the disciplinary sanction the employee is not subject to a new penalty, then he is considered to have no penalty. Also at the initiative of the employer, the request of the employee, his petition immediate supervisor or a representative body of employees, the penalty may be lifted earlier.

Single gross violation of labor duties

Clause 6 of Article 81 of the Labor Code of the Russian Federation contains an exhaustive list of one-time gross violations employee of labor duties, for the performance of which the employer has the right to impose a penalty on the employee in the form of dismissal. Such offenses, firstly, include truancy (subparagraph “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation). It is understood as absence from the workplace without good reason during a working day or shift, regardless of duration, as well as in the case of absence from work without good reason for more than four hours in a row. Dismissal for absenteeism is possible only if there is the employee’s fault and unjustified reasons for absence from the workplace. The responsibility for finding out the reasons for absenteeism rests with the employer. He must also independently and objectively determine whether the reason for the employee’s absence was valid or not. For example, the absence of railway tickets at the ticket office is a valid reason for absenteeism (determination of the RF Armed Forces dated March 30, 2012
No. 69-B12-1).

Secondly, the appearance of an employee in a state of alcohol, drug or other toxic intoxication (subparagraph “b”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation). This condition can be confirmed by a medical report, witness testimony, CCTV camera recordings, etc. In this case, the employer is obliged to follow the procedure for removing the employee from work (paragraph 1, part 1, article 76 of the Labor Code of the Russian Federation). Suspension from work means the suspension of labor relations between an employer and an employee until the circumstances that served as the basis for the suspension are eliminated. Also not paid during this period wage. The decision on suspension is formalized by an order, which indicates the full name and position of the employee, the circumstances that served as the basis for the suspension, documents confirming the existence of grounds for suspension (acts, memos, medical report, etc.), and the period of suspension. The employee should be familiarized with the order against signature. If he refuses to familiarize himself, then it is necessary to draw up a corresponding act.

Thirdly, disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (subclause “c” of paragraph 6 of Article 81 of the Labor Code RF).
On this basis, only those employees who have agreed not to disclose such information can be dismissed. Therefore, in the employment contract with an employee who will be allowed to know the secret, a condition on its non-disclosure should be written down. In addition, the employer should collect evidence of the employee’s disclosure of secrets, as well as evidence that this information relates to a secret protected by law. The employer may require
from an employee who disclosed an official or commercial secret, compensation for all losses incurred.

note

When reducing staff, the employer is obliged to comply with the legally established priority. Thus, those workers whose labor productivity and qualifications are higher have an advantage. If these parameters are equal, then preference should be given to family members and those in whose family there are no self-employed workers, persons injured or occupational illness at work, disabled people, and employees with advanced qualifications as directed by the company.

The category of gross violations includes, so to speak, a violation such as theft (including small) of someone else’s property at the place of work, embezzlement, intentional destruction or damage (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). Other people's property means any property that does not belong to the employee who committed the theft. In this case, the employer, even if there are guilty actions, will not be able to short time impose a penalty on the employee in the form of dismissal. This is due to the fact that the commission of theft must be established by a court verdict that has entered into legal force or by a decision of a judge, body, or official authorized to consider cases of administrative offenses. Thus, month period provided for the application of a disciplinary sanction will be calculated only after the entry into force of a court verdict, decision of a judge, body, official that considers cases of administrative offenses. It is worth noting that if the court passes a sentence that provides for punishment in the form of deprivation of the vault, or it excludes the continuation of the previous labor activity, then the employer is obliged to terminate the employment contract on the basis of: sentencing the employee to punishment that precludes continuation previous job, in accordance with the court verdict, which entered into legal force (clause 4, part 1, article 83 of the Labor Code of the Russian Federation).

Finally, the basis for dismissal is a violation of labor protection requirements if it entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences (subparagraph “e”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). Violation of labor protection requirements must be established by the labor protection commission or the labor protection commissioner. In this case, a labor safety commission must be created in compliance with the requirements of Article 218 of the Labor Code of the Russian Federation.

In any of these situations, the employer is obliged to apply a penalty in the form of dismissal in the manner established by Article 193 of the Labor Code of the Russian Federation.

Dismissal due to loss of confidence

Dismissal due to loss of confidence (clause 7, part 1, article 81 of the Labor Code of the Russian Federation) can only be limited to a limited number of employees. Thus, according to paragraph 45 of Resolution No. 2, the employer has the right to terminate the employment contract due to loss of trust only with employees who directly service monetary or commodity assets (reception, storage, transportation, distribution, etc.).

These include: cashiers; storekeepers; delivery drivers; accountants-cashiers; sellers; managers; warehouse managers, etc.

Dismissal is possible regardless of whether an agreement on full financial responsibility (individual or collective) has been concluded with the employee or not. It also does not matter what job responsibilities (primary or additional) include servicing monetary or commodity assets.

In order for an employee to be fired due to loss of confidence, he must commit culpable acts that would cause the employer to lose confidence in him. Otherwise, dismissal is impossible.

The employer independently determines which employee actions really undermine trust in him. In practice, these actions most often include:

• use by an employee of property intended for the performance of work duties for personal purposes;
• fictitious write-off of goods and valuables;
• fraudulent activities;
• violation of cash discipline;
• theft, loss or destruction of property entrusted to the employee;
• violation of the rules for storing and issuing material assets;
• reception and delivery Money for services or goods without proper documentation;
• underestimation or overestimation of prices for goods;
• weighing, calculating, measuring and fitting;
• shortage;
• violation of the rules for the sale of alcoholic beverages and cigarettes;
• violation of issuance rules medicines containing narcotic substances;
• storing keys to premises with material assets in an inappropriate place;
• violation of local regulations containing the procedure for issuing commodity and monetary assets;
• actions that create a threat of theft or loss of property, etc.

The fact that an employee committed one of the above actions in itself cannot serve as a reason for dismissal due to loss of trust. Termination of the contract on this basis is possible only if there is evidence of the employee’s guilt. Consequently, the employer is obliged not only to comply with the procedure for applying penalties (Article 193 of the Labor Code of the Russian Federation), but also to collect evidence of the employee’s guilt (for example, to conduct an internal investigation). If there is no evidence, then dismissal due to loss of trust will be illegal.

Igor Shilov, lawyer

Technology of popular dismissal methods

Methods and expert comments

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

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

Natalia Plastinina, head of the legal support sector:

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

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

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

Conclusions: disadvantages of dismissal by agreement of the parties:

1. the employee may not agree to terminate the employment contract, despite the employer’s proposals profitable terms termination;
2. in most cases, termination on this basis will require the employer to voluntarily pay compensation agreed upon by the parties in the agreement on termination of the employment contract;
3. practice records a high risk of challenging dismissal by agreement of the parties due to the employee’s defect of will. There are cases in which such agreements have been declared illegal in judicial practice.

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

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

I offer my clients the following arguments that can help convince an employee of the need to sign an agreement to terminate the employment contract: bringing to the attention of the employee information that the employment contract with him will be terminated, at best, the employee will be laid off. However, even a reduction is not the most good foundation to terminate the employment contract for demonstration to the future employer. Agreement between the parties is another matter.

A potential employer will not see anything wrong with him;

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

Reduction of staff (clause 2 of article 81 of the Labor Code of the Russian Federation)

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

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

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

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

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

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

Truancy (subparagraph “a”, paragraph 6, article 81)

If an employee is absent from the workplace for the entire working day or for more than four hours in a row, dismissal occurs automatically. It is more difficult to fire an employee who is often late, but this is also possible if the start time of work is specified in the internal rules labor regulations, in the employment contract, as well as in the collective agreement, if there is one in the company.

Natalia Plastinina, head of the legal support sector:

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

Disadvantages of applying dismissal on this basis:

• low probability of the foundation itself;
• high probability of errors in the dismissal procedure for the above reason;
• high risk of challenging dismissal due to its injustice, illegality, as well as in order to eliminate an unseemly entry in the work book;
• in those organizations where there is no full-time lawyer, and the management of personnel records is entrusted to the secretary, all of the above risks of erroneous actions by the employer increase significantly. The risk of reinstatement for a dismissed truant also increases.

As practice shows, regulatory authorities are also on the alert, inspecting employers and may recognize an order to dismiss for absenteeism as illegal.

What was done in Altai Territory State Labor Inspectorate. As a result of an inspection carried out on the basis of a citizen’s appeal, the state labor inspector found that, in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not require a written explanation from the employee regarding the fact of absence from the workplace, did not provide evidence confirming the absence work time employee without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. At the request of the state labor inspector, the order of dismissal by the employer was canceled. For violation of labor legislation, the director was brought to administrative liability in the form of a fine.

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

Inconsistency with the position held (clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation).

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

Natalia Plastinina, head of the legal support sector:

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

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

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

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

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

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

Secondly, in order to sign any additional agreements to the employment contract, the will of the employee is required, without which agreements cannot appear. What if the employee refuses to sign additional agreements? Has the right to.

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

Failure to comply with internal labor regulations (Article 192 of the Labor Code of the Russian Federation)

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

Natalia Plastinina, head of the legal support sector:

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

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

If the employee violates the specified requirements for employee behavior, the employer must, in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation punish the employee. And only after the appearance of consistency (two or more violations during the year) will he be able to dismiss the employee under clause 5 of Part 1 of Art. 81 Labor Code of the Russian Federation.

In my opinion, the most optimal option for parting with an employee in terms of simplicity and validity among those proposed.

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

Alcohol intoxication (subparagraph “b”, paragraph 6, article 81)

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

Natalia Plastinina, head of the legal support sector:

To apply this basis, data from a medical examination (medical examination) are not always needed. The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court (clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation" (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunk employee flatly refuses to undergo a medical examination (including in order to further challenge his dismissal), the employer will have to collect other evidence. They can be (inclusive, but not limited to):

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

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

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

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

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

Disclosure of professional secrets (sub-clause “c” of paragraph 6 of Article 81)

Disclosure of secrets protected by law (state, commercial, official and other) that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee, is a serious violation of job duties. At the same time, the concept of personal data is very broad, and theoretically you can be fired even for telling someone home phone Colleagues.

Natalia Plastinina, Head of the Legal Support Sector:

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

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

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

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

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

Changes in basic working conditions (Article 74 of the Labor Code of the Russian Federation)

The employer has the right to change the work schedule or terms of payment by giving employees two months' notice. And here a huge space of opportunities opens up for the employer, and employees are forced to either agree with them or quit on their own. For example, an undesirable employee can be offered piecework wages, production can be switched to a 24-hour schedule, and then many employees will prefer to give up night shifts.

Natalia Plastinina, head of the legal support sector:

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

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

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

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

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

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

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

Failure to fulfill labor duties (clause 5 of Article 81 of the Labor Code of the Russian Federation).

Most often, the employer uses this wording when others legal ways layoffs have already been exhausted or are not suitable. In this case, the employee may be given a task that is impossible to complete in terms of deadlines, and then required to provide an explanatory note about the reasons for non-fulfillment.

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

Unsatisfactory certification results (clause 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a provision on certification, and the certification commission must include persons who have a professional understanding of the work of employees subject to certification. The commission reflects all decisions in the minutes. If the results of the inspection are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the offer offered to him in the same company new job with corresponding or lower qualifications and with lower earnings.

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

Natalia Plastinina, head of the legal support sector:

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

• Personnel records management and Labor law