Can uv. Not of your own free will: why you can be fired

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

Reduction or liquidation

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

Inconsistency

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

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

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

Transfer to another position

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

Failure to fulfill duties

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

• reprimand;
• comments;
• dismissal from office.

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

Absenteeism and tardiness

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

Embezzlement and theft

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

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

Drunkenness

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

Loss of trust

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

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

Loss of trust may be the result of intentional misconduct or negligence, a careless attitude to one's duties. As in the case of absenteeism, the employee's guilt must be proven. Confirm misconduct An employee can have a memorandum, an audit report or an inventory report.

Dismissal at will: article Labor Code

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

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

Design features

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

Witnessing a fact

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

Warning

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

Introduction to the specialist

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

Explanatory

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

Order

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

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

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

Personal documents

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

Compensation and payments

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

Consequences for the employee

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

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

Appealing a manager's decision

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

Is it possible to fire an employee if he is on sick leave to care for a sick family member? - Yes, you can.

Is it possible to dismiss a minor employee at the initiative of the employer? – It is possible, but only with the consent of the labor inspectorate.

Is it possible to fire an employee for absenteeism if his employment contract does not indicate a specific place of work? - No you can not.

Labor legislation gives the employer the opportunity to dismiss employees on his own initiative. But in practice, personnel officers often forget that in addition to this right, they have a number of responsibilities that must be fulfilled in order to realize it. How to fire an employee correctly, avoiding mistakes? What should you pay attention to first of all? What difficulties can you encounter when dismissing an employee at the initiative of the employer?

When can an employer not fire an employee?

An employer does not have the right to dismiss an employee if:

This rule applies even if the employee works from home or part-time. In addition, try not to forget that there are special categories of employees who either cannot be dismissed at the initiative of the employer, or for this a certain procedure must be followed (table on page 40).

Restrictions on dismissal of special categories of workers

What to do if you are faced with a difficult dismissal case?

Let's look at some of the most common and complex issues related to the dismissal of employees at the initiative of the employer.

Unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). Remember that you will not be able to dismiss an employee on this basis if:

1. there is no provision for probation in the employment contract (in this case, the test is considered unspecified);
2. the employer missed the deadline for notice of dismissalon this basis (dismissal will be considered illegal);
3. the employer did not record the results of the work performed by the employee, did not evaluate its quality (that is, there are no documented grounds for dismissal).

Reduction of number or staff (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). It is also not possible to dismiss employees on this basis in all cases. For example, you cannot do this if:

Attention!

Remember that it is not the employee who is being laid off, but the staff unit or position.

Example

Attribute LLC has a network of branches. Each of them has the position of a personnel inspector. But CEO decided that personnel records management will be carried out only in the central office and the position of “HR inspector” in the branches needs to be reduced. In this regard, management issued an order to reduce the number of employees and handed all employees notices of the upcoming dismissal. At the same time, there were no vacant positions in the branches.

Two days before her dismissal, Elizaveta Ivanchuk refused to sign the dismissal order. She motivated this by the fact that she is single-handedly raising a disabled child at the age of five, which means she cannot be fired. And provided supporting documents. Therefore, after the new staffing table came into force, Ivanchuk continued to go to work and spend her working time in the office, doing nothing. What should an employer do?

The General Director of Attribute LLC solved this problem as follows. He made changes to the previously issued order to reduce staff and returned her position to the branch staffing table. Thus, the employee was provided with work. In the future, she will be able to be offered vacant positions in order to transfer to new job, later reducing the position of HR inspector.

Related documents

One-time gross violation by an employee labor responsibilities. Absenteeism (subparagraph “a”, paragraph 6, part one, article 81 of the Labor Code of the Russian Federation). It is impossible to dismiss an employee on this basis if:

Advice
Be sure to indicate in employment contracts with employees their place of work (the structural unit must be indicated in accordance with staffing table). This will help confirm the employee’s absence in case of absenteeism.

Example

Digital LLC has stores in many shopping centers in the city. In an effort to increase sales, the employer different days sends employees (sales consultants, cashiers) to various stores, depending on where workers are currently needed. In employment contracts, the employer deliberately does not indicate a specific place of work (store). One of the workers, cashier-seller Margarita M., was sent by verbal agreement to a store located in mall"Orchid". But it so happened that the worker went to the Lilia shopping center by mistake.

At this time, there was a large influx of visitors in the Orchid shopping center, whom the workers there did not have time to serve. As a result, the store did not make the profit it could have. The angry manager decided to fire Margarita for absenteeism. Two days later she was asked to review the dismissal order. Margarita refused to do this and turned to the labor dispute commission to protect her rights.

The commission supported the worker's position. The management had to cancel their dismissal order, since the employment contract with Margarita M. did not specify her specific workplace. This means that the fact of absenteeism cannot be proven.

Inconsistency of the employee with the position held or the work performed in the event of insufficient qualifications confirmed by the results of certification (clause 3 of part one of Article 81 of the Labor Code of the Russian Federation). It is impossible to dismiss an employee on this basis under several circumstances, for example, if:

Change of owner of the organization’s property (Article 75, paragraph 4, part one, Article 81 of the Labor Code of the Russian Federation). By general rule the employer does not have the right to dismiss employees on this basis. The exception is the head of the organization, his deputy and Chief Accountant. At the same time, they should not be confused with the heads of branches and other separate structural divisions– such employees cannot be dismissed on this basis. In addition, the new owner loses the right to dismiss these employees if more than three months have passed from the moment he acquired ownership rights.

Disclosure of secrets protected by law, including personal data of another employee (subparagraph “c”, paragraph 6, part one, article 81 of the Labor Code of the Russian Federation). In this case, the employer must carry out a disciplinary procedure and apply punishment in the form of dismissal (Article 193 of the Labor Code of the Russian Federation). But an employee cannot be fired if the company does not have a list of information that constitutes commercial, official or other secrets, as well as evidence that the employer has developed means of protecting them.

Law against practice

On practice

The employer decided to dismiss employee Shpyneva for repeated failure to fulfill her job duties without good reason, since for several days in a row she took her lunch break an hour earlier (not from 13-14 o'clock, but from 12-13 o'clock). Although the manager had previously verbally agreed with her about what hours Shpyneva would have lunch (the employee’s lunch time is not specified in the internal labor regulations and the employment contract).

In law

In accordance with Article 189 of the Labor Code, labor regulations are determined by the internal labor regulations.

What happens if…

It will not be possible to dismiss an employee on this basis in this case, since neither the company’s internal labor regulations nor the employment contract indicate the employee’s lunch break time. But a verbal agreement with the manager cannot be taken into account.

For both employees and employers, the issues of reduction and dismissal are relevant, since violation of the provisions of the Labor Code by both parties can result in a number of troubles. A negligent person may be left without a livelihood due to his negligence, and the management of the enterprise will be held accountable in court for unlawful actions against an employee who was illegally laid off (or in case of failure to pay him the due severance pay).

How to protect yourself if you are facing dismissal? What articles of the Labor Code regulate the rights and obligations of citizens working at an enterprise? For which categories are benefits provided to avoid dismissal? Similar questions are often asked by people who have had to deal with issues of dismissal from work. Let's consider the reasons that influence the dismissal of employees from work, and also analyze the actions of a person that allow them to defend their rights.

Under what clauses can an employee be dismissed?

There are many reasons why an employer may legally terminate an employee's employment. You may be fired for appearing at the enterprise while intoxicated, during staff reduction or liquidation of the organization, due to absenteeism or due to inadequacy of the position held, but this can be done based only on the provisions of the articles of the Labor Code of the Russian Federation.

It would be useful to remind you that even during employment, HR department specialists will tell you and can also familiarize you with the provisions of the Labor Code of the Russian Federation so that you know your rights and obligations.

• Dismissal of employees when the owner of the organization changes. Article 81 clearly regulates the provisions that may lead to the dismissal of employees. If the owner of the company changes, then, according to paragraph 4 of Article 81, only the existing head of the enterprise and his deputies can be fired. According to this clause, the chief accountant can also be laid off, but this action does not apply to ordinary employees of the organization. Please note that if an enterprise is subject to liquidation, then all categories of workers are subject to layoffs, including disabled people, pregnant women and women in labor conditions. If there is a reduction in staff, then people with a long continuous work history cannot be fired from their jobs.
• Can pregnant women and women on maternity leave be laid off? According to the provisions of Article 261 of the Labor Code, a pregnant woman can be dismissed from work only in the event of liquidation of the enterprise, and any form of contract must be extended by the employer until the pregnant woman goes on maternity leave. If an employee of an enterprise has violated discipline, she may receive comments and reprimands, which is not prohibited by law. Also, the employer cannot, on his own initiative, dismiss an employee who is in maternity leave. The only grounds for layoffs can be the liquidation of the enterprise, as well as the discovery of a woman’s employment (before going on maternity leave) using forged documents or her immoral behavior at the enterprise.
• Is it possible to fire a person for unsuitability for the position held? This argument is often used by employers who want to get rid of an employee and do not have good reasons to reduce it. Paragraph 3 of Article 81 clearly indicates the reason for the reduction: an employee who does not correspond to the position can be dismissed if the level of his insufficient qualifications is confirmed by a specially created commission as a result of certification. It is easy to guess that all threats from the management of the enterprise to fire a person are not justified in any way until the qualifications are confirmed. To prove a person’s inability to perform a particular job efficiently, the enterprise creates a certification commission headed by a deputy manager. It also includes the head of the department in which the subject works and a HR specialist. Before the certification, the employee is notified of the upcoming aptitude exam, and a corresponding order is drawn up. The task for the subject is prepared within the framework of his job description.

Advice: If you are confident in yourself and know for sure that the certification tasks were deliberately drawn up in such a way that they were impossible to complete, you need to write a corresponding complaint to the labor safety inspectorate. You should also challenge the decision of the certification commission in court.

• It is still possible to dismiss a person from work if his transfer (with written consent, of course) to other positions available in the enterprise’s reserve is not possible. The management of the company you work for can offer similar work or a position with a lower salary. If the employee does not suit any of the proposed vacancies and he refuses them in writing, then the management of the organization will have all the legal grounds to dismiss the person from work.
• Dismissal from work for being late and being intoxicated. Regardless of the reasons for being late for work, you cannot be fired if this happened once and the owner of the enterprise (head of department) did not reprimand in writing. If repeated lateness is recorded during the working year, which is regarded as a violation of labor discipline, then the company management will have every reason to fire you. This provision is regulated by clause 5 of Article 81 of the Labor Code. Regarding showing up at work (or drinking alcoholic beverages, using drugs at the enterprise during working hours) in drunk, then, according to clause 6 of provision “B” of the same article, the owner of the enterprise has the right to dismiss an employee upon identification of a precedent.
• Reduction of employees for non-compliance official duties. If an employee of an enterprise periodically (systematically) does not fulfill the duties assigned to him and has recorded disciplinary sanctions, he may be dismissed from work (Article 192 of the Labor Code). They are allowed in the form of reprimands or comments. If an enterprise specialist has committed minor offenses, this is not grounds for his dismissal. Before a labor penalty is announced (recorded), the owner of the enterprise (department manager) is obliged to demand a written explanation for failure to complete the assigned task. If the employee does not provide it within 48 hours, the company’s management draws up a report, and disciplinary action must be applied no later than 1 month from the moment the precedent (misdemeanor) was identified. Please note that this does not take into account the employee’s time on sick leave or vacation. Grounds for dismissal from work (according to paragraph 5 of Article 81) can only be repeated violations of labor obligations and failure to fulfill them without good reason. If any, they must be stated in writing.
• Reasons for dismissing disabled people. If a working person is diagnosed with a disability, he may be fired if he is not suitable for his position or if low performance is detected. qualification level(as we have already said, this fact still needs to be proven). Also, a disabled person can be fired from work if the medical commission of the enterprise has grounds to consider him incompetent (or there is no possibility of transferring him to light work in divisions of the same organization).
• Why can a single mother be fired by law? A woman raising a child (several children without a legal spouse) does not have the right to be fired from work until her children reach the age of 14. If a single mother has a disabled child, she cannot be fired from her job until the child reaches 18 years of age. These provisions are regulated by Article 261 of the Labor Code. When a child (children) reaches the specified age, a woman can be dismissed from work on a general basis, while according to Article 179, the owner of the enterprise has the right to give preference to the qualifications of the employee rather than his social status(status).
• Dismissal for theft and embezzlement of company property. And again, let us turn for clarification to Article 81, which clearly states that a person convicted of theft, embezzlement and intentional damage to the property of an enterprise can be fired if his guilt is proven. The grounds for dismissal are judgment, as well as a resolution of authorized persons of the enterprise. Most often, the precedent is resolved by dismissing the offending employee by agreement of the parties. This is beneficial both for the employer, so as not to tarnish his own reputation, and for the most negligent employee, which will allow him to get a job in another company. It should be understood that the employee most likely will not receive.

It should be noted that if an employee of an enterprise is on leave (educational, childcare, regular), he cannot be fired from work. By law, this can only happen if the organization is liquidated. The same applies to persons absent for health reasons. Please note that it will be paid by the enterprise provided that it was opened no later than 30 days from the moment of contacting the medical institution until the moment of termination of the employment contract.

Categories of citizens who cannot be fired by law

If you are interested in who cannot be legally fired from work, you need to know that there are categories of citizens who enjoy preferential rights. When staffing is reduced (in accordance with Article 179 of the Labor Code), those who show the highest indicators of labor productivity, as well as those who are highly qualified, have advantages over other employees of the enterprise.

When choosing employees who need to remain at work, the owner of the enterprise, based on the provisions of paragraph 2 of Article 179 of the Labor Code, takes into account a number of circumstances that influence the final result in terms of staff size. Preferential rights are enjoyed by employees who:

• have more than 2 dependents;
• are disabled from war;
• are the only breadwinners in the family;
• Being employees of the enterprise, they received disabilities, injuries and occupational diseases.

There is also a separate category of citizens who cannot be dismissed from work by law. These should include inventors, workers who did not change jobs after military service, as well as spouses of military personnel on active duty in military units and government agencies. According to clause 3. Article 179 of the Labor Code, the head of the enterprise can indicate in the employment contract the category of persons who will enjoy preferential rights in the event of a reduction in the number of workers.

When drawing up an employment contract, the employer has the right to indicate the categories of persons who cannot be dismissed from work at the time of reduction, and there are also additional conditions that prevent staff reduction:

• Irrelevance of grounds for layoffs. Paragraph 5 of Article 81 of the Labor Code of the Russian Federation provides for cases in which, by law, it is impossible to dismiss an employee if a staff reduction is planned. According to clause 5, persons whose actions led to a loss of trust are not subject to reduction. It is also impossible to dismiss an employee from work on the initiative of the boss if the employee has committed immoral act, not related to professional activity, if a year or more has passed since its discovery.
• Non-compliance special conditions to fire workers. If a company employs a minor, he cannot be dismissed by law unless there is permission from the relevant authorities. According to Art. 269 ​​of the Labor Code, the employer is required to obtain permission from the State Labor Inspectorate, as well as the Commission on Minors’ Affairs.
• Deliberately reducing the time required to notify an employee (trade union) or lack of notification of upcoming dismissal from work. The employer is obliged to notify the trade union of a massive reduction in staff at the enterprise no later than 3 months (according to Article 82) before the start of the layoff. The same applies to notifying an employee (Article 71), who must be notified no later than 3 days if he has not shown satisfactory work results during the trial period.

What do all employees need to know?

For every conscientious person, it is important not only to retain his job, but also to preserve his reputation. So that you don't have any problems serious problems in the future at the enterprise, you should carefully study the provisions of the employment contract from the moment of employment.

You should also pay attention to internal regulations. Carefully study the general labor regulations at the enterprise, clarify the conditions and, find out whether it is issued to employees, and also clarify the methods of issuing it (cash, transfer to bank card, payments in envelopes, bonuses, etc.).

Many people, when signing an employment contract, neglect to familiarize themselves with its provisions, which is fundamentally wrong, since knowledge of their rights and responsibilities within labor collective of a certain enterprise will allow resolving many controversial issues if there is a high probability of dismissal.

Every person should know when his working day begins and ends, the procedure for going on vacation and its payment, etc. If these clauses are missing from the contract or are not clearly formulated, this may cause certain difficulties when asserting your rights when reducing staff (employee).

Absence from work for a valid reason must be documented. To do this you will need a certificate from medical institution about visiting a doctor or written confirmation of stay in government agencies. With absence permitting documentation the employee is obliged to write an explanatory note no later than 48 hours from the moment of the recorded violation, which is a prerequisite for dismissing a person. After this, the employer can dismiss the employee within 30 calendar days from the moment the violation is discovered. If they violate the deadlines, the employee will be reinstated in their previous position.

If an employee is accused of stealing the property of the enterprise or employees, or damaging it, then this fact can be confirmed by the judicial authorities. Often, the management of organizations literally resorts to blackmailing employees in order to fire them from their jobs (of course, not legally). If an employee has not committed a crime in the workplace and his guilt has not been proven, then he cannot be fired. The employer may offer to leave by agreement of the parties. Here you should decide what is preferable - your own reputation or your position.

If an employee is accused of showing up to work under the influence of alcohol or drugs, then the fact of his inadequacy still needs to be proven in order to be fired.

Note: for example, you accept medications alcohol-based, which is not conscious consumption of alcohol. In this case, it is necessary to obtain from the doctor an appropriate document indicating the specifics of the treatment. And in order to fire a person from work, he must undergo a medical examination, the results of which will prove involvement in taking drugs or alcohol.

What to do if you are facing dismissal?

So, we found out that it is possible to fire a person from his job based on the articles of the Labor Code of the Russian Federation, otherwise the employer will commit illegal actions and will be obliged to reinstate him in his position. If you believe that the layoff is illegal, you must contact the labor safety inspectorate with a corresponding complaint. It can also be filed in court at your place of residence.

In the complaint, you must write about the need for reinstatement at your previous job, and also indicate that you want to receive a compensation payment. Based on the provisions of Article 392-393 of the Labor Code, we can confidently say that for the plaintiff (for you) the procedure for applying to government bodies are absolutely free, and all expenses and state fees will be paid by the enterprise.

Save the article in 2 clicks:

Try to inform the company management of your intentions before leaving. Often, employers make concessions and can offer you either reinstatement in the organization or another vacancy. If you are not satisfied with the proposed entry in the work book, you should try to discuss its wording with the company management. It wouldn't hurt to consult a lawyer if you are facing dismissal under this article.

In contact with

Dismissal can hardly be called a pleasant topic. However, remembering that best protection- attack, it will never be superfluous to arm yourself with information and be as knowledgeable as possible in this area. This training will be an excellent help for any employee.

Reasons for dismissal from a position

Despite the fact that almost every enterprise has its own charter, stated in the employment contract, you should know the main points that are misdemeanors of the degree for which they can and have the right to be deprived of work.

Absenteeism

Absenteeism, as the most popular deviation from labor discipline, is quite compelling, however, it is also one of the most controversial arguments in favor of dismissing an employee who has crossed this line.

Definition of absenteeism in the Labor Code of the Russian Federation, paragraphs. “a” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation simultaneously covers two concepts: the absence of an employee for the entire working day (regardless of whether it is a couple of hours or ten), and more than four hours in a row (not inclusive).

It is also reasonable to note that absenteeism is not an absence for a good reason.

In addition, the definition of the above term includes the following points:

• the employee’s workplace (if it is not assigned to the employee, then being on the territory of the enterprise does not constitute absenteeism);
• fact of absence of the employee (the reason for dismissal must be officially documented and confirmed).

Loss of trust

This clause provides for the dismissal (only!) of financially responsible employees in accordance with clause 7 of Art. 81 Labor Code of the Russian Federation. This means that the reason for loss of trust can apply to persons who have direct access to money and other material resources, their reception, storage, distribution, etc.

Professions of this kind include:

• cashiers;
• sellers;
• accountants;
• warehouse managers;
• economists;
• forwarders, etc.

The reason for the loss of trust can be both intentional misconduct and negligence, negligent attitude towards goods and (or) material values. As in the case of absenteeism, the employee’s guilt must be documented (an audit report, an inventory, a memo).

Vivid examples of reasons for mistrust:

• receiving payment for services without appropriate documentation;
• weighing or counting;
• violation of the rules for the sale of alcoholic beverages, as well as the dispensing of pharmacological drugs.

Drunkenness

This reason is defined in paragraphs. "b" clause 6 of Art. 81 Labor Code of the Russian Federation. The legislation of the Russian Federation notes several significant clarifications to dismissal due to drunkenness in the workplace.

It is worth noting some facts:

• Firstly, the fact of intoxication in the workplace, and not just alcohol consumption, must be recorded.
• Secondly, the reason is a valid reason only if the employee appeared at work in an inappropriate condition during his working hours.
• Thirdly, intoxication means not only alcoholic intoxication, but also narcotic or other toxic intoxication.

Theft

Dismissal of an employee for theft, as this article is otherwise called, occurs when the fact of theft by a specific employee is established.

To do this, there is a certain set of evidence, which should include:

• place where the offense was committed;
• intent to steal;
• court verdict.

It should also be taken into account that an employee can be dismissed from work for theft no later than a month after the verdict comes into force.

True, this paragraph. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation also has some non-legal amendments. Many enterprises prefer not to talk about such cases in the team, and therefore, for example, administrative punishment for petty theft can be carried out without the last indication in the list - the employee will most likely be asked to submit an application of his own free will, which is a way out for both the employer and and for the employee.

Inconsistency

The employer has the right to dismiss an employee who is insufficiently qualified to perform job duties in his position, based on the results of certification in accordance with clause 3, part 1, art. 81 Labor Code of the Russian Federation. However, dismissal can only take place if the company is unable to offer the worker a more suitable vacancy.

Consequently, dismissal under this point takes place in two stages:

• certification that determines how prepared an employee is to work in modern conditions;
• execution of documents if the certification results were unacceptable.

Let us recall that the qualifications of a worker are determined by documents on his education, as well as relevant forms certifying his work experience and length of service in a specific position.

Other reasons

In addition to the above reasons, there may be many reasons for dismissal. All of them are listed in the Labor Code of the Russian Federation.

1. Failure to comply with internal regulations and organizational rules. This paragraph affects the charter that was indicated at the beginning of the article. Dress code, smoking ban - all these instructions, if they are written down in the employment contract, must be followed in the strictest order.
2. Disclosure of professional secrets. Theoretically, an employer can fire even for reporting home phone colleagues to a stranger. In practice, this most often happens on a larger scale and with larger consequences. This point is especially important if it is also specified in the employment contract.
3. Failure to fulfill labor duties. The simplest and most accessible point that does not need explanation. However, in order to dismiss legally on this issue, significant evidence will be required.

Dismissal procedure under article

The peculiarity of dismissal under this article is not only the legal and officially documented reason for depriving an employee of the enterprise of work, but also specific stages of dismissal, non-compliance with which may indicate insufficient legal force signed decree. So, each stage is described in detail below.

Witnessing a fact

For each article, this stage must be carried out differently, since each has its own amendments. So, as already stated earlier, in order to be fired due to drunkenness, it is necessary to attest to the intoxicated state, and not just the fact of drinking alcohol.

At the same time, theft is proven in three stages: not only does the law recognize theft as a fact only if there is documented evidence in the form of an audit or a memorandum, it is also obligatory under this article trial with the appropriate sentence.

In some cases, this stage becomes one of the simplest. For example, systematic non-compliance with work regulations can be recorded daily, and then presented as reliable evidence.

Warning: is it necessary?

This stage also has attributes depending on the reason for dismissal:

• In the event of liquidation of an enterprise and the subsequent dismissal of all employees, as well as any other change in the organization’s operating procedure and staff reduction, the employer is obliged to notify employees of the dismissal 2 months. In addition, the company is obliged to offer employees alternative work, suitable for the specialty.
• Similar conditions must be observed in case of dismissal due to insufficient qualifications/unsatisfactory certification.
• When dismissing an employee for failure to fulfill job duties, non-compliance with internal regulations, absenteeism, the employer first undertakes to request from the employee a written explanation of his misconduct, then he has one month to impose appropriate disciplinary sanctions. It should be noted that for each offense there is only one penalty, that is, if an employee has already been reprimanded for one absence, they do not have the right to fire him for the same absence.

To sum up all that has been said, a notice of dismissal is a mandatory act; only the timing of its execution varies.

Employee familiarization

Consists of an official notification and presentation of an order indicating the reason, date and basis for dismissal to the employee.

A signature confirming that the employee agrees/is familiar with the decree is required.

In case of refusal to sign, a statement of refusal is drawn up with the presence of witnesses.

Explanatory

The condition for the presence of an explanatory note has already been mentioned in passing earlier. According to the Labor Code, the employer undertakes to demand an explanatory note from the employee who committed the offense, but the employee himself is not required to write an explanatory note.

His right to refuse is not regulated by any acts.

However, the lack of this document does not cancel the disciplinary sanction. In any case, the penalty will be drawn up two days after the request for an explanation in writing.

Issuance of an order

The law requires the issuance of two orders: the first confirms the imposition of a disciplinary sanction in the form of dismissal, and with the help of the second, the employment contract. In practice, in most cases, only the latter is sufficient.

All regulatory documents are attached to it, such as:

• details of reports and acts;
• explanatory note from the employee (if available);
• other documentation confirming the existence of a real reason for dismissal.

Employment history

The employer is obligated to issue him his work book with the corresponding notice of dismissal on the last working day for the dismissed employee. According to such a record, the reason for dismissal and the article that governs this regulatory provision are understood.

Depending on the reason for dismissal, the entry in the work book may contain one of the following options:

Payments and compensations

Upon dismissal, an employee must be paid:

1. salary for all time worked in the last month before dismissal. The day of dismissal is considered to be the last working day;
2. monetary (this takes into account all such vacations);
3. severance pay. Payment is made in the following cases:

• liquidation of the organization;
• staff reductions.

Consequences for the employee

Based on the article under which the employee was fired, after the dismissal he may have problems of varying degrees of complexity.

Conventionally, the reasons for dismissal can be divided into three groups, each of which has its own consequences:

• Articles not included in the work book. The employee resigns “of his own free will” and the misconduct that occurred is not indicated anywhere. Despite the acceptable option, when looking for a new job, questions may arise from a potential employer.
• Articles included in the work book. Reasonable consequences in the form of a damaged reputation. However, in some cases, honesty is the best policy, especially from a legal point of view.
• Articles related to the reorganization of the enterprise. In this case, if the management of the company follows the law, the employee is obliged to provide all the conditions for finding a new job and therefore the consequences are only positive.

The employee does not agree

The employee always retains the right to defend his opinion, therefore, it is possible not to accept dismissal as given. At a minimum, this is precisely the main purpose of the explanatory note. However, there are other methods.

Ways to challenge

The law of the Russian Federation allows you to appeal a decision on dismissal in several cases:

1. dismissal occurs on the basis of the results of certification to test qualifications. In such a situation, the employee has the right to submit an application to the commission within ten days to review the result;
2. The dismissal of an employee occurs illegally. For this option, the Labor Code provides for the restoration of the workplace and consequences for the employer;
3. dismissal under article of theft. One of the conditions for such dismissal is a court verdict, which, within the prescribed period, can also be appealed.

Management Responsibility

From the above list, attention should be paid to Special attention the second point. Management, first of all, has the responsibility to carry out dismissal in the manner prescribed by law. If these obligations are not fulfilled, the employer must pay the employee monetary compensation and restore his job.

As for appealing the decision to dismiss in principle, management is also responsible for ensuring that all necessary applications are received by the appropriate authorities, but these applications themselves are not considered - the exceptions are explanatory notes intended specifically for the management.

Despite the fact that the article provides answers to the main questions that may arise regarding dismissal, there are a huge number of small nuances that tend to manifest themselves differently in each situation. However, they all in more detail recorded and explained in the Labor Code of the Russian Federation. He, in turn, is definitely best assistant, both for a law-abiding employee and an honest employer.

Subordinates are interested in what articles are most often dismissed from work, and how the process of terminating an employment contract goes in this case. To find out why they can be fired and under what articles, you need to understand the legislative acts.

Under what articles can an employment relationship with an employee be terminated?

In case of any dismissal or reduction, the employer must refer to the relevant articles of the Labor Code in order to comply with the termination procedure labor relations with an employee.

However, there are articles that can create a bad reputation for a person fired on their basis.

The director can dismiss an employee based on his misconduct. There are articles under which employees are fired most often and, as a rule, finding a new job after termination of an employment contract can be difficult.

Dismissal for failure to perform official duties

The boss can fire under Article 81, Part 5 of the Labor Code of the Russian Federation, which regulates dismissal based on a person’s failure to fulfill his job duties.

The following circumstances must be present:

1. This is not the first time the employee has violated his duties.
2. No valid reasons for this.

If, in addition, the subordinate has a disciplinary sanction, then the director has even more rights to dismiss him.

In accordance with Art. 192 of the Labor Code of the Russian Federation, recovery can be in the form of:

• reprimand;
• termination of the contract between employer and employee;
• comments.

Even if a person has a good reason, a penalty is still issued against him.

Important! If the employee still has an excuse, then he must reflect this in the explanatory note and attach documents confirming his words. For example, if a subordinate gets sick or his relative is hospitalized, then you need to take documents from the hospital or clinic.

Dismissal due to theft and embezzlement

An employer can dismiss an employee based on proven theft or embezzlement in the organization. This care from work is regulated by paragraph 6 of Article 81 of the Labor Code of the Russian Federation. If a subordinate steals or damages other people's things, then the manager or another official given the right to go to court on the fact of violation.

For reference! To fire a subordinate, you must first conduct an investigation and only then decide to terminate the employment agreement.

But most often in this case, the director invites the employee to leave the organization of his own free will or to draw up a resignation agreement so as not to make a fuss again. This decision is explained by the fact that the reputation of not only the subordinate, but also the employer may deteriorate.

Dismissal due to absenteeism

Dismissals under Article 61, subparagraph 6a of the Labor Code of the Russian Federation are among the most frequent. This article regulates the termination of a contract between a boss and an employee on the basis of the latter’s absenteeism.

1. Failure to show up for work within 4 hours of the start of the shift.
2. The person did not show up to the organization for the entire day.

In this case, the subordinate does not have a valid reason and an act of his absence is drawn up.

It should be remembered that the director cannot initially consider the reason for absence as disrespectful. Even if the person did not warn the manager in advance, the latter must first demand an explanation and then decide on the issue of dismissal.

Important! If the employment agreement does not clearly define the workplace, then the absence of an employee from it is not considered absenteeism, provided that he is on the territory of the enterprise.

Some doubt whether they can fire you for 1 absence. In accordance with Article 192, the manager has the right to terminate the employment relationship with a person who fails to show up for work even once without extenuating circumstances.

Dismissal for immoral behavior

Many people do not know under what article a person can be fired from work for immoral behavior. This termination of the employment contract is regulated by Article 81, paragraph 8 of the Labor Code of the Russian Federation. Dismissals under this article are among the most controversial.

Based on the 46th paragraph of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, only people working in educational institutions and performing an educational function.

List of those fired for immoral behavior:

• teachers;
• educators;
• masters on industrial training.

If a person works in educational institution, but does not perform an educational function (for example, an accountant or a cook), then this law does not apply to him.

Termination of a contract between a boss and a subordinate can also be carried out if the latter committed an immoral offense not at work or while not performing his job duties.

Important! To terminate an employment relationship with a subordinate based on his immoral actions, it is necessary to have evidence of the misconduct. If there are none, and the accusation is based only on rumors and speculation, then the dismissal will be considered illegal.

The boss does not have the right to dismiss a subordinate who has been convicted of immoral behavior in the following cases:

• during illness;

When drawing up an order to terminate an employment agreement, the manager must attach materials confirming the fact of immoral behavior.

The procedure for dismissal may differ if the guilty act was committed at or outside the place of work.

Algorithm for terminating an employment relationship if a person behaved incorrectly at work:

1. The manager demands an explanation from the subordinate.
2. The person writes an explanation and hands the paper to the director.
3. A dismissal order is issued.

According to Article 193 of the Labor Code of the Russian Federation, if a subordinate has committed a crime, the manager must terminate the contract with him within 1 month from the moment the offense was discovered and within 6 months from the moment it was committed.

For reference! A guilty employee cannot take a break before leaving work (Part 2 of Article 127 of the Labor Code of the Russian Federation).

If a person committed immoral acts while not in the performance of official duties, then the employer does not have to demand an explanation, but the law does not prohibit this. The time frame within which the boss must fire the person is also specified in this case.

If immoral acts are committed outside of the workplace, the subordinate and the director can agree that the former should leave of his own free will.

Regardless of the employee’s misconduct, he must be given everything due compensation and documents on the last working day.

General procedure for dismissal based on an employee’s guilty actions

To dismiss an employee for absenteeism, theft of property, and so on, the director first asks the subordinate for an explanatory note, and then issues a dismissal order.

How to fire a person for committing guilty actions correctly:

1. The director issues a punishment order for a subordinate.
2. The collection order is sent to the employee.
3. An order to terminate the employment relationship is issued.
4. The person is introduced to the contents of the order against signature.
5. Cash compensation and a work book are issued.

The manager must attach a document confirming the fact of the violation to the sanction order.

List of documents that can be used to prove a subordinate’s guilt:

• explanatory;
• the employee’s written refusal to provide explanations;
• report.

To support the reason, you can only use a document that was drawn up no more than a year ago.