How to quit without the consent of the employer. Why is it justified to fire an employee immediately

Dismissal is a routine job for an experienced personnel officer. Some employees leave of their own accord, others at the "request" of the employer. In any case, each ground has its own procedure. Strict observance of it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other hand, at protecting organizations from unfounded claims of former employees. Consider how to dismiss an employee in compliance with all the 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.

An employee's own desire is the most common reason for terminating a relationship with an employer:

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

Difficulties with registration of dismissal at the initiative of the employee, as a rule, do not happen. An exception is issues related to mandatory “working off”. By default, this is 2 weeks that the employee continues to work from the moment the application is submitted.

Certain categories of personnel are entitled to a reduced notice period. 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 have time to calculate the resigning person in time and give him a work book in his hands.

The employer's initiative involves a more complex process of dismissal. If this is a reduction in staff or the liquidation of a company, the procedure is clearly described in the legislation and does not present problems from the point of view of documentary support. Here the main task 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 the dismissal of an employee unilaterally by the organization, here the “freedom” of the employer is clearly limited: one desire is not enough for this. There is a list of grounds for which an employee can be fired, and a special procedure for fixing violations for each of them. There are no documented misconducts of the employee - there is no reason for dismissal.

A “compromise” option for terminating an employment relationship is an agreement between the parties. In this case, the employer and the employee amicably agree on parting on certain conditions. Most often it looks like this: the organization is interested in dismissing the employee without the risk that he will change his mind and withdraw the application “on his own”. The employee is "bargaining" to receive monetary compensation for his departure.

Dismissal at the request of the employee

The 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 out the assigned days;
• complete the transfer of cases to another employee, if such an order is provided for in the organization.

It doesn’t matter what contract was concluded when applying for a job - fixed-term or indefinite. In any case, the desire of the employee is decisive, and the employer has no legitimate reason to interfere with him.

The application is written in the name of the head with the wording: “I ask you to dismiss me of your own free will “XX” month in words XXXXX of the year”, the current date and signature.

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

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another place of service / abroad;
• violation of the law, the terms of the employment contract by the employer.

In such cases, the dismissal occurs on the date indicated by the applicant. If required, a supporting document must be attached to the application (certificate from the institute, transfer order, etc.). An employee can leave “one day” without a good reason, if the employer goes to meet 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 already during the vacation, but no later than 14 days before going to work. Then the first post-holiday working day will be considered the date of termination of the employment contract.

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

On the part of the employer, the procedure for dismissal of one's own will looks like this:

• receipt of an application endorsed by the head of the company;
• creation of an order;
• making an entry in the work book;
• full settlement with the employee on remuneration;
• preparation of documents necessary for further employment (certificates 2-NDFL, 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 for which article to dismiss an employee - Art. 77 of the Labor Code of the Russian Federation. On the day of dismissal, the employee gets acquainted with the order and receives a work book in his hands. Up to this point, a person can change his mind and withdraw the application if a replacement has not yet been invited to his place, which "can not be turned back."

Dismissal through 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 the employer "asks" the employee to leave the firm, he sends him a written proposal.
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 personnel department draws up an order, fills out a work book. The grounds for dismissal are paragraph 1 of article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of opportunities and compliance with legal rights. The employer may, having agreed with the employee, dismiss him on any day, even if he is on vacation or sick. The resigned person cannot “change his mind” and cancel the signed document unilaterally. The employee is also not offended - in the process of negotiations, 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, the entire staff goes to the “expenditure”, in the first case, the reduced units, positions, with the exception of those categories of employees who, according to the law, cannot be reduced.

If you need to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee does not correspond to his position or he has had misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work in a drunken state, systematic violations with the imposition of disciplinary punishment.

In order to avoid infringement of the rights of staff, legislators did everything so that a person could not be fired without good reasons. It is quite difficult to “bring under the article” an employee to whom the authorities have a personal dislike, although it is impossible to completely exclude abuses by employers.

Downsizing and company liquidation

The reduction has a clearly regulated process for the dismissal of part of the staff:

1. The decision on reduction made at the enterprise is fixed by the 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 change in the staffing table.
2. 2 months prior to the cutoff date, all eligible employees are notified in writing against signature.
3. The employer is obliged to offer the employee another position, if possible. For people who agree to the proposed vacancies, a transfer is issued. The rest are getting ready to leave.
4. A notified employee has the right to leave early without waiting for the cutoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go without hindrance. Early dismissal of the employee does not deprive compensation for the days remaining before the reduction.
5. 2 months before the reduction, the management must notify the trade union body, if any. In case of mass dismissal of workers - 3 months in advance, as well as submit lists to the employment service.
6. For each employee, a dismissal order (T-8 form) is prepared with reference to the basis document. The order is submitted for signature to the dismissed person.
7. An entry is made in the work book indicating the reason for dismissal - clause 2, part 1, art. 81 TK.
8. The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of the average salary.

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

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

When one of several equivalent positions is laid off, the choice of employees who leave and who stay lies with the employer. However, even here the authorities are deprived of complete freedom. 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 the priority right to keep their jobs. This:

• persons with 2 or more dependents;
• sole breadwinners in the family;
• who have received an injury or occupational disease from this employer;
• disabled people - participants in hostilities;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. An employee cannot be fired if he is on sick leave or vacation. To reduce the temporarily disabled and vacationers, you will have to wait until they go to work.

All these exceptions do not apply to the complete liquidation of the organization. The liquidation procedure practically does not differ from the reduction, except for one thing: all the 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 and others) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it completely ceases to operate.

Dismissal of violators of labor discipline and unsuitable workers

An employee who systematically violates discipline causes the 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 (alcoholic, narcotic), confirmed by a medical examination;
• disclosure of information protected by law (state, commercial secret), proven in court;
• theft, embezzlement, material damage to the employer or a third party, recognized by the court;
• violation of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teachers;
• submission of false documents upon admission to the position.

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

1. Identification of the fact of violation.
2. Fixation of a misdemeanor (drawing up an act, protocol, examination, medical examination, etc.).
3. Obtaining written explanations from the offending employee.
4. Consideration of the facts of the case.
5. Drawing up a dismissal order in the T-8 form, references to supporting documents (acts, reports, explanatory, court decisions, etc.) are indicated as the basis.
6. Bringing the order to the employee under the 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 dismiss an employee for absenteeism: in the absence of a person at work for the whole day or 4 hours in a row, it is necessary to document this fact and prove that the employee was absent without a good reason.

Until an explanation is received from the "truant", the "presumption of innocence" is valid. The employee could be on time off, vacation, on sick leave, be subpoenaed, get into an accident on the way to work, etc.

If the employee did not receive any sensible explanations or supporting documents (disability certificate, subpoena, protocol of the traffic police, etc.), the misconduct is regarded as a gross violation of labor discipline and is qualified under Art. 81 of the Labor Code of the Russian Federation, part 1, paragraph 6, subparagraph "a". This basis will be recorded in the dismissal order and in the work book.

The list of documents confirming the legality of such dismissal:

1. Notice of absence from work.
2. Explanatory employee or act of refusal to provide explanations.
3. Order for disciplinary action / dismissal.

If the employer has violated this procedure, even if he has good reasons to dismiss the truant, the “offended” employee has every chance to recover through the courts.

It is also possible to dismiss a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming "chronic" indiscipline, in the aggregate, can serve as a basis for severing an employment relationship.

Another “ticklish” question for employers is how to properly dismiss an employee who, in the opinion of his superiors, does not correspond to his position. There is no other option than to arrange an attestation for an incompetent employee. It is necessary to issue an order, create an attestation commission and evaluate the professional suitability of a person on the basis of clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can draw up a dismissal with the wording "due to inconsistency with the position held." The deadline for terminating the employment contract is no later than two months after certification.

In the event of disputes related to wrongful dismissals, the courts are more likely to take the side of employees. The reason is simple: a rare organization can boast of an ideal order in internal regulations and personnel documents. The absence of schedules, job descriptions, provisions on certification and labor regulations, an illiterately drawn up employment contract, “missed” steps when initiating a dismissal - all this can serve as evidence that the dismissal was carried out in violation of the law.

The 3 most common options for dismissing an employee: inconsistency with the position held, violation of labor discipline, being in a state of alcohol or drug intoxication.

 

Is it possible to fire an employee without his will?

During the crisis, many enterprises are trying to reduce the number of employees to reduce costs, but it is not always possible to part with them through dismissal of their own free will. If dismissed due to staff reduction, this will entail additional payments, which is unprofitable for the employer.

Entrepreneurs who do not know how to dismiss an employee without his will according to the law can familiarize themselves with the possible reasons for dismissal in acc. from Art. 81 of the Labor Code of the Russian Federation:

• Insufficient qualifications, inconsistency with the position held, failure of subordinates to pass certification.
• Failure to fulfill the labor obligations established by the contract, repeated disciplinary violations.
• The appearance of an employee in the organization in a state of intoxication.
• Violation of labor protection requirements established by the commission.
• Theft of money.
• Committing an act that is contrary to moral standards, making it impossible to continue working.

In order to avoid litigation, in which the court will definitely side with the employee, it is important to know one detail: you cannot fire an employee while he is on sick leave, during pregnancy or while on vacation.

Dismissal in case of inconsistency with the position occupied by the employee

To fire an employee due to non-compliance, you need to take several steps:

• Issue an order for the employee to pass the certification, then give him a notification about it.
• Organize certification, including in it the most difficult tasks for him, with which he will not be able to cope.
• Recognize the inconsistency of the employee with the position held.

For a leader, this method is not the most acceptable, because. by law, he must offer an unqualified employee a vacant lower position, to which he can agree, remaining to work in the company.

Dismissal for violations of labor discipline

If an employee has previously been brought to disciplinary responsibility and a reprimand or remark “hangs” on him, in case of a repeated violation, the employer has the right to dismiss him. What the procedure itself looks like:

• The fact of committing a repeated misconduct is documented by means of a memorandum, act, decision of the commission or an indication of the time actually worked in comparison with the general norm of man-hours.
• An explanatory note is required from the delinquent subordinate. In its absence, in the future, the employee will be able to challenge the dismissal in court, referring to Art. 193 of the Labor Code of the Russian Federation, according to which the employer is obliged to reclaim it from the subordinate. If he does not provide it within two working days, an appropriate act is drawn up.
• Orders are issued on bringing to disciplinary responsibility for systematic violations of labor discipline, as well as on dismissal for failure to fulfill labor obligations.
• An entry is made in the work book about the dismissal indicating the reason - clause 5, part 1, art. 81 of the Labor Code of the Russian Federation.

On the last day of the employee’s work, it is necessary to make all payments due to him: salary earned for the worked period, compensation for unused vacation, etc.

Dismissing an employee due to being in a state of intoxication

Such cases are extremely rare, and it is easier to get rid of an employee through certification or disciplinary violations that everyone has. If there is any doubt about his sobriety, you need to do the following:

• Conduct a medical examination. It is desirable for the entrepreneur to be present at it.
• Draw up an act on the presence of a subordinate at the workplace or on the territory of the enterprise in a state of alcoholic (drug) intoxication.
• Issue a dismissal order.
• Request a note with explanations from the employee.
• Draw up a memorandum on the fact of the appearance of an employee in a state of intoxication.
• Issue a dismissal order at the initiative of the employer and register it in the registration log.
• Make a note-calculation in the form T-61, familiarize the former subordinate with the order against signature.
• Make an entry in the work book indicating paragraphs. b p.5 art. 81 of the Labor Code of the Russian Federation.
• Issue a completed work book and make an entry in the Book of Accounts.

As a rule, most employees who are seen drunk at work agree to leave of their own accord, so it is quite possible to avoid the above procedures by offering to disperse peacefully.

The simplest reasons to quit

The easiest way is for employers who hire employees for a certain period of time under a contract, because after the expiration of this document, it may not be renewed. In addition, the most common reason for dismissal from managers is non-compliance with labor discipline, which includes violations common to 90% of subordinates:

• Absences and delays.
• Premature departure from work without a contract with management.
• Ignoring director's orders.
• Non-fulfillment of direct labor duties.

Despite the many options for the development of events, voluntary resignation still remains the simplest, because only in this case the dismissed employee will not be able to win a lawsuit in court if he does not prove that the dismissal was under pressure from the employer. Even in this scenario, the chance that the court will take his side is very low.

There are a number of reasons why an employer may terminate an employment contract with an employee. All of them are detailed in the Labor Code of the Russian Federation. However, it is not explicitly spelled out for which one of the employees can be fired without his consent.

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

• Worker's initiative.
• Leadership initiative.
• Some circumstances that neither side can influence.

Not all employers know why an employee who disagrees with this can be fired. The procedure is feasible due to the presence of some facts:

• Lack of the required skills and qualifications.
• Low performance, inconsistency with the position held (confirmed by the certification).
• Violations of the established discipline by the employee.
• Systematic failure to fulfill the duties prescribed by the management.
• Absence from the workplace without prior agreement with the management (absenteeism) for 4 hours or more.
• The presence of a worker at the workplace in a state of alcoholic or drug intoxication.
• Administratively proven theft, damage or embezzlement of someone else's property.
• Disclosure of official information or personal information of any of the colleagues.
• Providing false documents during employment.
• If an employee who has access to material values ​​has committed any illegal act. Loss of confidence in such an employee is also sufficient grounds for terminating the employment contract.

The following situations can be considered as force majeure circumstances:

1. Forced need to reduce staff.
2. Liquidation of the enterprise (closing of IP).

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

• Change of management or owner of the enterprise.
• Gross violation of the job description by the management or his deputy.
• Making the wrong decision, which was the reason for the damage to the property of the organization or its misuse.

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

Any employee in the public service can also be removed from his post at the initiative of higher authorities. This happens in case of non-observance by the workers of certain restrictions and prohibitions established by the anti-corruption norms, as well as in case of exceeding the imputed powers.

Required Papers

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

• A photocopy of the employment agreement.
• Dismissal order.
• Photocopies of certificates evidencing that the necessary contributions have been made (to the Pension Fund of the Russian Federation and other organizations).
• An original of a paper that confirms the work of an employee in a specified organization in a specific position. In this case, the time period during which this interaction was carried out should be indicated.

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

Nuances that require close attention

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

• Correspondence of the real reasons for dismissal without the consent of the employee with those prescribed by the Labor Code of the Russian Federation.
• Strict observance of all necessary procedures.

If any of the criteria is not met, the employee can challenge his dismissal. In the event of liquidation of the enterprise, all employees must be notified in advance (at least 60 days in advance) of the termination of the contract. The same applies to cases of downsizing of the organization.

You can warn employees both personally (by presenting the relevant document) and by registered letter sent to the place of residence (if the reason for the absence of the employee is valid). Those to whom the warning was issued in their hands must sign for its receipt.

Sometimes the employee purposefully tries to avoid reading the specified paper. In this case, the text of the warning is read aloud in his presence. Next, you should draw up an act of refusal to familiarize yourself with the information. The person who read the warning should certify the paper.

Employee incompetence

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

Dodging duties

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

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

An employee cannot be disciplined if:

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

The management of the enterprise does not have the right to independently recognize any employee as guilty of damaging or stealing other people's things. It is possible to dismiss on the basis of this fact after the issuance of an appropriate court verdict or after receiving a decision from an administrative body. The same applies to the situation when the worker provides false documents.

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

1. Document the discovered misconduct.
2. Assess the severity of the identified violation.
3. Observe the time limits necessary for the application of punishment.

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

How legal is dismissal?

The State Labor Inspectorate periodically checks to what extent the termination of the employment agreement has been carried out according to the law. This may happen:

• As a result of the dismissed appeal to the relevant authorities.
• At the request of the public prosecutor.
• As part of a scheduled audit of the enterprise.

If, according to the results of the audit, it turns out that the worker was fired illegally, some sanctions will be applied to the employer. Often, an administrative fine is imposed on the organization and its management. In addition, the employer will be obliged to reinstate the employee in his position and pay for his temporary absence from the workplace. Sometimes the court assigns additional monetary compensation to the employee as payment for moral damage.

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

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

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

The agreement of the parties (art. 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.

Natalia Plastinina,

The reason for parting is not bad, but in most cases it requires additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation, instructions on the payment of severance pay upon dismissal by agreement of the parties, many years of practice in resolving difficult situations in labor relations have shown that an employee agrees to such a “soft, smooth, but not included in his plans” parting 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 basis under consideration 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 guideline the size of the severance pay in case of staff reduction. However, in special cases (dismissal of the head of any link), this amount can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be "hooked" on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases are the dismissal of a truant or an alcoholic in those circumstances when the employer could not acquire sufficient evidence of the misconduct of employees and, therefore, could not risk-freely apply the basis for dismissal appropriate to the situation (subparagraph “a”, paragraph 6 of part 1 article 81 of the Labor Code of the Russian Federation and subparagraphs "b" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation). The most difficult thing is to find agreement with a category of employees specially protected by law who cannot be dismissed at the initiative of the employer (during certain periods of their activity), - pregnant women, persons with family responsibilities listed in Art. 261 of the Labor Code of the Russian Federation. These workers, being in a wounded state, are so afraid of losing a permanent job and not finding a new one that they refuse to conclude agreements on termination of the employment contract, despite the proposed compensation, and if such an agreement is signed, they go to the courts to challenge them due to a defect of their own will .

Thus, in addition to the material side of the issue, this ground has another disadvantage - a high risk of successfully contesting his dismissal by the dismissed employee. And practice knows cases of recognition by the court of an agreement to terminate an employment contract as illegal due to the lack of an expression of the will of the employee for this action (as an example, you can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case N 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, and there was only a desire to transform labor relations (the agreement contained the obligation of the employer to subsequently hire the employee again). In this regard, the court concluded that the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: cons of dismissal by agreement of the parties:

1. the employee may not agree to terminate the employment contract, despite the favorable termination conditions offered by the employer;
2. in most cases, termination on this basis will require the employer to voluntarily pay compensation agreed by the parties in the agreement to terminate the employment contract;
3. practice fixes a high risk of contesting the dismissal by agreement of the parties due to a defect in the will of the employee. There are cases of recognition of such agreements as illegal in judicial practice.

Anna Ustyushenko,

The agreement of the parties applies 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 the 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 for terminating an employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if it is challenged by the employee.

I offer my clients the following arguments that can help convince the 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 reduced. However, even a reduction is not the best reason to terminate the employment contract for demonstration to a future employer. Another matter is the agreement of the parties.

A potential employer will not see anything wrong with him;

• the agreement of the parties allows you to save the employee's time, which can be spent, for example, when reducing the number or staff;
• the agreement of the parties allows you to agree on the amount of "compensation" for the dismissal, as well as on the procedure for its payment.

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

Natalia Plastinina,head of the legal support sector:

1. When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; dismissed ahead of time, a certain part. 2 Article. 180 of the Labor Code of the Russian Federation; they dismiss the employee just in time, but during the period of 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 are already issuing a dismissal order; they do not care about the real basis for the reduction; they do not approve the new staffing table in time; they incorrectly apply the provisions of Art. 179 of the Labor Code of the Russian Federation on the pre-emptive right to remain at work; they make mistakes in the standard paperwork.

For these and other reasons, there is still a high risk of recognizing the layoff for redundancy as illegal and reinstating the employee at work, which is confirmed by numerous judicial practice.

So, 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 reduction. In this connection, the court recognized the dismissal of the plaintiff employee under paragraph 2 of part 1 of Art. 81 of the Labor Code illegal, reinstated the plaintiff in the organization in his previous position (decision of the Yugorsky District Court of the Khanty-Mansiysk Autonomous Okrug - Yugra (published on November 27, 2012).

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

Indeed, downsizing is one of the methods of dismissal, requiring strict adherence to procedures. The employee is notified in writing about the upcoming reduction 2 months in advance, during this time he must 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 positions. But positions in other regions are offered only if it is enshrined in a collective agreement or other local regulatory act of the company.

Also, one should not forget about the pre-emptive right to leave some categories of employees at work.

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

Natalia Plastinina,head of the legal support sector:

We note right away that such a reason can never be expected from an average moderately responsible employee. Being late does not form such a basis for dismissal as absenteeism, since the time the employee is absent does not reach 4 or more hours in a row. In addition, there is a high risk of incorrect recording of the event, incorrect qualification of absence as absenteeism, incorrectly drawn up documentation for the formation of the basis provided for in paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Cons of applying for dismissal on this basis:

low probability of occurrence of the base itself;

high probability of errors in the procedure for dismissal on the named basis;

a high risk of challenging the dismissal due to its unfairness, illegality, and also in order to exclude an unseemly entry in the work book;

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

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

Even if the employee was absent from work for the amount of time needed for absenteeism, he can hardly be automatically fired. In any case, this will require clearly following the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the restoration of the dismissed person with the accrual of payment for 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 job description of the employee, warning him for two months. Then, in additional agreements to the employment contract with the employee, the conditions are prescribed, on the basis of which the indicators are considered unfulfilled. The values ​​of indicators can be taken according to any schedule: once a week, month, quarter. If an employee fails to cope, he is reprimanded, severely reprimanded, and then fired.

Natalia Plastinina,: Paragraphs 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation are two different grounds. The basis of paragraph 3 -“inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification” - in practice, it is difficult to achieve due to the actual non-occurrence of this basis. To apply it, the employer will first have to approve the local act on the certification (see part 2 of article 81 of the Labor Code of the Russian Federation), give employees time to prepare. Create a commission. Correctly record the order of its implementation and results. Give iron arguments of the inconsistency of the employee with the position held. And after that...

Offer the employee another job in his own company! This is required of the employer by part 3 of Art. 81 of the 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 candle?

Clause 5, Part 1, Art. 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - "repeated non-fulfillment by an employee without good reason of labor duties, 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 obligation to sweep 4 production shops in the evening, it seems that the court will not recognize such a change as legal and justified. And he will point out to the zealous employer the correct guideline in this matter - ETKS. In addition, one should not forget about the systematic misconduct of the employee, which may no longer be formed after the first punishment.

And although both grounds may be applicable, but their elusiveness and high risk of contestation do not make them popular.

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

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

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

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

Thirdly, in order to apply such a basis as inconsistency with 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 be a reason for dismissal of an employee.

Failure to comply with the rules of internal labor regulations (Article 192 of the Labor Code of the Russian Federation). Information about the ban on smoking, the need to comply with the dress code should be spelled out in the internal labor regulations, which are signed by all employees when they are hired. You need to understand that it is not enough for the employer to simply indicate “observe the dress code”. He is obliged to convey in writing to his employees what kind of clothing the authorities consider suitable for work with a detailed description of the style and color of clothing.

Natalia Plastinina,head of legal support sector:

Of course, there is no such basis in the Labor Code of the Russian Federation. However, there is a previously considered ground provided for in paragraph 5 of part 1 of 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 territory of the employer, and for non-compliance with the dress code under the following conditions:

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

In case of violation by the employee of the specified requirements for the behavior of employees, the employer must, in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation to punish the employee. And only after the appearance of consistency (two or more violations during the year), he will already be able to dismiss the employee under paragraph 5 of part 1 of Art. 81 of the 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 INTELLECT-S Group of Law 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 without good reason to fulfill work duties if he has a disciplinary sanction), then non-compliance with the dress code or a ban on smoking is not the best reason for dismissal, since 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 the employment contract.

Alcohol intoxication (subparagraph “b”, paragraph 6 of article 81). A single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication at his workplace on the territory of the employer organization or facility where, on behalf of the employer, the employee must perform a labor function is sufficient. But in order 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:

Not always, for the application of this basis, data from a medical examination (medical examination) are needed. The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence that must be assessed by the court accordingly (paragraph 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Russian Federation "(hereinafter - the decision 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 with the aim of further challenging his dismissal), the employer will have to collect other evidence. They may be (including but not limited to):

1. an act of discovery in a state of intoxication;
2. an act of refusal of a medical examination;
3. notification of giving explanations;
4. an 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 accurate approach of the employer to the preparation of documentation in such cases, an employee who appears at work drunk cannot successfully challenge his dismissal.

So, in a dispute on recognizing the dismissal as illegal, the employer confirmed the fact that the plaintiff was in a state of intoxication at the workplace with an act of being in a state of alcoholic intoxication; an act of refusal to undergo a medical examination; protocol on an administrative offense, explanations of witnesses. The court considered this sufficient evidence of the fact that the employee was intoxicated, and, therefore, sufficient grounds for terminating the employment contract under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation. Having found no violations in the dismissal procedure, the court refused to recognize the dismissal as illegal for the employee (decision of the Zheleznodorozhny District Court of Yekaterinburg dated March 21, 2012; decision of the Sverdlovsk Regional Court dated June 21, 2012 in case No. 33-7104 / 2012) .

But the most interesting question is different: will the employer wait for the employee to appear at work in a state of intoxication?

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

To dismiss an employee for appearing at work in a state of intoxication, a medical examination is desirable, but not required. The employee has the right to refuse to proceed to a medical facility. In this case, the employer has the right to confirm the fact of intoxication by an act that describes the signs of intoxication.

Disclosure of professional secrets (subclause “c”, clause 6, article 81). Disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee, is a serious violation of labor duties. At the same time, the concept of personal data is very broad, and theoretically, one can even be fired for telling someone a colleague's home phone number.

Natalia Plastinina,head of 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 unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts. Persons who illegally obtained information that constitutes an official or commercial secret are obliged to compensate for the losses caused. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the terms of the employment contract, and on contractors who did this in violation of the terms of the civil law contract.

According to paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, if the employee disputes the dismissal under paragraphs. "c" p. 6 h. 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 applicable law, refers to state, official, commercial or other secrets 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, as a rule, has problems. Before applying the grounds for dismissal provided for in paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it should be clarified:

• whether the organization has local acts that define information as a legally protected secret;
• whether the employee is familiar with these acts;
• whether he undertook 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, 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 the norms of laws, he will already 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 obligation. But the presence of all these documents, as practice shows, does not minimize the risk of recognizing dismissal on the named basis as illegal.

So, the court, considering the case with similar circumstances under consideration, considered that the employerno evidence of violation by the employee of his official duties, in particular, relating to non-disclosure of commercial secrets, was presented. The court pointed out that the employer's arguments are of a conjectural nature and cannot serve as a basis for applying a disciplinary sanction in the form of dismissal. Since there is no evidence in the case that unconditionally testifies to the disclosure by the employee of information related to the trade secret of the company, the court recognized the dismissal under paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation illegal and changed the wording of the grounds for dismissal to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (of their own free will) (decision of the Leninsky District Court of Perm dated April 6, 2012; appeal ruling of the Perm Regional Court dated October 3, 2012 in case No. 33-8900).

Changing the basic working conditions (Article 74 of the Labor Code of the Russian Federation). The employer has the right to change the work schedule or wage conditions 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 objectionable employee can be offered piecework wages, transfer production to a round-the-clock schedule, and then many employees will prefer to refuse night shifts.

Natalia Plastinina,head of legal support sector:

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

Changing the terms of an employment contract has a strict regulation of the process:

• written acquaintance with the forthcoming changes;
• written justification of the reasons for the introduced changes;
• offer of vacancies during the entire notice period;
• correct recording of all consents and refusals of the employee (from signing, from vacancies, etc.);
• dismissal not earlier than the expiration of the notice period;
• payment of a severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation).

Not an easy process, right? In addition, it must be taken into account that the employee can and ... agree to new working conditions. Or agree to take one of the proposed vacancies. Then it will be necessary to look for another reason for parting?

Given the high risk of contesting the dismissal on the grounds under consideration, it is worth considering the choice of this ground for dismissal.
As an example of a successful challenge, you can see the decision of the Koryazhma city court in case No. 2-12, in which the court did not recognize the employer's grounds for changing the terms of the employment contract and, therefore, the 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). Before the dispute was resolved by the court, the defendant canceled his order and reinstated the worker at work).

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

The application of Article 74 of the Labor Code of the Russian Federation is far from possible in all cases. As a general rule, a change in the terms of an employment contract (and wages, work schedules are essential conditions) is 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, article 81 of the Labor Code of the Russian Federation). Most often, the employer uses this wording when other legal methods of dismissal have already been exhausted or are not suitable. In this case, the employee may be given a task that is impossible in terms of time, and then be required to submit an explanatory note on 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, article 81 of the Labor Code of the Russian Federation). The company should have a regulation on attestation, and the attestation commission should include persons who have a professional understanding of the work of employees subject to attestation. All decisions are reflected in the protocol. If the results of the check are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the new job offered to him in the same company, corresponding to the qualification or below it and with less earnings.

(see the 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 legal support sector:

Conducting a general analysis of the grounds presented by the magazine, we can conclude that each of them has its drawbacks and entails the emergence of certain risks. Even the correct observance of the dismissal procedure does not always entail the recognition of the dismissal as lawful and justified. Employers can be recommended to use in their activities the simplest grounds and legally regulated dismissal procedures. For example, dismissal for repeated non-performance an employee without valid reasons for labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) or dismissal for the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication (paragraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

The task of terminating an employment relationship is of concern not only to the employee. It is just the Labor Code that protects him: he wrote a letter of resignation, worked for two weeks - and you can no longer go to work. In this sense, the employer is not so lucky: even though he does not want to fire the employee, he is obliged to do so after a two-week warning period. But what if the employer wants to part with the employee without the lack of desire of the latter? What tools can an employer use? We'll talk about this in the article.

To begin with, it would be useful to note that in the event of disputes, it is necessary to be guided by paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2), which explained, that when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

We will not consider cases of dismissal of an employee if there is his desire to terminate the employment contract - at his own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation), by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation) and etc. We will not dwell on options for terminating an employment contract on grounds that do not provide for anyone's initiative, for example, in connection with the expiration of the employment contract (clause 2, part 1, article 77 of the Labor Code of the Russian Federation, article 79 of the Labor Code of the Russian Federation), as well as due to circumstances not dependent on the will of the parties, for example, the conscription of an employee for active military service (clause 10, part 1, article 77, article 83 of the Labor Code of the Russian Federation). Let's not touch on relations with civil servants.

Let us consider in more detail other possible options, in each of which we will dwell on the legislative aspect, cases of application, controversial issues that may lead to the reinstatement of a dismissed employee at work, and the algorithm for applying the grounds for dismissal.

1. Dismissal due to unsatisfactory test result

The possibility of dismissal in case of an unsatisfactory test result is provided for by Art. 71 of the Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. On this basis, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without payment of severance pay.

Applications

Only during the probationary period in the absence of a legislative prohibition on its establishment.

controversial points

• the presence of a direct ban on the establishment of a probationary period;
• failure to establish a probationary period in the employment contract;
• non-compliance with the procedure for dismissal on this basis;
• unreasonable application of grounds for dismissal;
• the actual end of the test and the continuation of work by the employee.

1. Establish a probationary period in the employment contract, including:
   a) Comply with probationary restrictions. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for:
   • persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
   • pregnant women and women with children under the age of one and a half years;
   • persons under the age of eighteen;
   • persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;
   • persons elected to elective office for paid work;
   • persons invited to work in the order of transfer from another employer as agreed between employers;
   • persons concluding an employment contract for a period of up to two months, and other persons;
   b) comply with the limited test period. So, it cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).
2. To oblige the immediate supervisor of the employee to draw up official (report) notes on his work during his test, as well as other documents indicating that the employee does not stand the test.
3. Draw up a written decision that the employee did not pass the test.
4. Correctly calculate the period for warning the employee about an unsatisfactory test result. At the same time, it should be borne in mind that the period of temporary disability of the employee and other periods when he was actually absent from work (Article 70 of the Labor Code of the Russian Federation) are not counted in the test period.
5. Warn the employee in writing about an unsatisfactory test result no later than three days in advance, indicating the reasons (part 1 of article 71 of the Labor Code of the Russian Federation).
6. Dismiss after the expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in the prescribed manner (Articles 84.1 and 140 of the Labor Code of the Russian Federation). It is also possible to dismiss an employee of his own free will, if he makes such a decision after receiving the notification specified in paragraph 5. After all, Art. 71 of the Labor Code of the Russian Federation also says that if during the probation period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance.

Established practice

Article 71 of the Labor Code of the Russian Federation establishes that an employee can appeal against the decision of the employer in court. Practice shows that if there is at least one point of contention on the grounds under consideration, dismissed workers go to court. Moreover, the application of this ground actually means the beginning of a dispute between the employee and the employer. Indeed, in most cases, such a situation is resolved amicably: the employee is informed that he was not suitable for the job in the position for which he was hired, i.e. did not pass the probationary period. He understands this and leaves of his own accord. The conflict has been resolved: the employer has achieved his goal, and the employee does not have a “bad” entry in the work book.

Example 1

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The State Labor Inspectorate in the Krasnodar Territory conducted an inspection on the fact of violation by the employer of the procedure for dismissing an employee based on the results of the test. An employee was fired at Stroy-Investment LLC due to an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). During the audit, it was found that the employment contract with the employee was terminated on 10/28/2011 without warning him in writing no later than three days before. The warning was drawn up on the day the employee was fired. Thus, the employer did not meet the deadlines established by law during the dismissal procedure under Art. 71 of the Labor Code of the Russian Federation. In addition, a note was made on the warning about termination of the employment contract that it was not handed over to the employee, since he was absent from the workplace from 10/29/2011 to 11/01/2011. At the same time, judging by the documents, the employee was dismissed the day before, on 10/28/2011. It turns out that from October 29, 2011 he was no longer an employee of the company. The employer did not take exhaustive measures to notify the employee of the termination of the employment contract (sending a notice of termination of the contract by registered mail with notification or sending a telegram). Based on this, the dismissal order is subject to cancellation, the employer is obliged to compensate the employee for the earnings he has not received in connection with the illegal deprivation of his opportunity to work. The employer was presented with a binding order to eliminate the violations committed.

As you can see, due to violations of the dismissal procedure on the grounds under consideration, the dismissal will be declared illegal. The employee will continue to work for the employer, and the employer's goal of parting ways with the employee will not be successful.

2. Dismissal in connection with the refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties

The terms of the employment contract can be changed for the employee at the initiative of the employer, and if he refuses to work on new conditions, this gives rise to his dismissal on a completely legal basis - clause 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. This is a slightly lengthened way of parting with an employee, but completely legal.

In accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, the basis for terminating an employment contract is the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties (part 4 of article 74 of the Labor Code of the Russian Federation). According to Art. 74 of the Labor Code of the Russian Federation in the case when, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer , with the exception of changes in the labor function of the employee.

Applications

In the course of an employee's activity. At any stage.

controversial points

• groundlessness of changing the terms of the employment contract determined by the parties (lack of evidence to the contrary);
• introduction of amendments to the employment contract for only one employee (can be challenged due to discrimination);
• non-compliance with the procedure for changing conditions (failure to notify in writing, failure to comply with the notice period);
• lack of evidence of the employee's refusal to work in the new conditions;
• dismissal of an employee prematurely, as well as outside the warning period on the grounds under consideration.

Correct Application Algorithm

1. Notify the employee of upcoming changes to the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing, no later than two months, unless otherwise provided by the Labor Code of the Russian Federation.
2. Obtain from the employee a refusal or consent to work in the new conditions.
3. If the employee does not agree to work in the new conditions, offer him in writing another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract. If the employer wants to part with the employee completely, then in order to avoid the possibility of finding a job in another position, it is first necessary to change the staffing table, excluding vacancies from it altogether.
4. After the formalities are met (provided that there are no vacancies or if the employee has written refusal of the proposed vacancies), terminate the employment contract in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. Dismissal is carried out in the usual manner in accordance with Art. 84.1 and 140 of the Labor Code of the Russian Federation.

Established practice

As in any other case of dismissal at the initiative of the employer, a litigation may arise here. Paragraph 21 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 provides that when resolving cases on the reinstatement of persons whose employment contract was terminated under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation, it must be borne in mind that, based on Art. 56 of the Code of Civil Procedure of the Russian Federation, the employer is obliged to provide evidence confirming that the change in the terms of the employment contract determined by the parties was the result of changes in organizational or technological working conditions, for example, changes in equipment and production technology, improvement of jobs based on their certification, structural reorganization of production, and did not worsen the position of the employee compared with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation cannot be recognized as legal.

Arbitrage practice

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The Volzhsky District Court reasonably reinstated the plaintiff at work as an accountant in LLC 222, dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation. The court found that the plaintiff had been working in the company as an accountant since August 29, 2006 with a salary of 15 thousand rubles. per month and a monthly bonus of 3 thousand rubles. On March 20, 2008, an employee was given a notice of a reduction in the official salary to 10 thousand rubles. in connection with changes in organizational working conditions and a reduction in the volume of work. Meanwhile, the employer did not provide evidence confirming that the change in the essential working conditions of the plaintiff was the result of changes in organizational and technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons). In addition, the employer did not offer the plaintiff another job in writing (thus violating part 3 of article 74 of the Labor Code of the Russian Federation).

Most often, it is the failure to prove the validity of changes in the terms of the employment contract determined by the parties by the employer that serves as the basis for recognizing dismissal under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation illegal.

3. Reducing the number or staff of employees

In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, the dismissal of an employee due to a reduction in the number or staff of employees of an organization (individual entrepreneur) is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid work) that the employee can perform, taking into account his state of health. The employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area.

When deciding on the transfer of an employee to another job, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, work experience (paragraph 29 of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2).

According to part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during his temporary disability and during his vacation.

Applications

When carrying out an actual reduction procedure at the enterprise. Under this reduction in the number and / or staff, it is possible to “bring down” the position (profession) of the employee with whom it is necessary to terminate the employment relationship.

controversial points

• the validity of downsizing and/or staffing. Initially, the courts establish whether there has been a reduction in the number of employees or staff of the enterprise. This circumstance must be confirmed by an order to reduce the number or staff of employees and a new staffing table. At the same time, the new staffing table must be approved before the start of measures to reduce the number or staff of the organization's employees. In addition, the courts check what served as the basis for reducing the number or staff of employees (reducing the amount of work, carrying out various organizational and technological measures);
• compliance with the pre-vacation procedure for the employment of an employee at the same enterprise for another position. In case of disputes, the courts find out whether the employee was warned in the prescribed manner personally against a personal signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation), whether the plaintiff has a preemptive right to remain at work (Article 179 of the Labor Code of the Russian Federation), whether measures have been taken for his employment, whether he is a member of a trade union and whether the trade union took part in his dismissal (Articles 82, 372 of the Labor Code of the Russian Federation). When deciding whether an employee has a priority right to be left at work during a reduction, it should be borne in mind that in addition to the category of workers who enjoy the priority right to remain at work, listed in Art. 179 of the Labor Code of the Russian Federation, the collective agreement may provide for other categories that enjoy such a right;
• compliance with the prohibitions of Art. 81 of the Labor Code of the Russian Federation for the dismissal of an employee during his temporary disability or while on vacation;
• "Delay" dismissal on the named basis without any reason. If the employee continues to work after the expiration of the warning period and the employer does not insist on dismissal, does not take any actions for this (and there are no circumstances preventing dismissal), the employment contract continues to be valid.

Correct Application Algorithm

1. Issue an order to reduce the number and / or staff.
2. Approve the new staffing table with its introduction into force from a certain date (not yet arrived).
3. Determine the pre-emptive right to leave at work (it is considered both before the issuance of an order to reduce, and until the dismissal itself - if new circumstances arise that indicate that the dismissed employee has a pre-emptive right to leave at work). If the employee is a member of a trade union, take into account Art. 82 of the Labor Code of the Russian Federation.
4. Notify in writing (under the personal signature) of the laid-off employees of the upcoming dismissal at least two months before the day of dismissal; in case of mass dismissal - not less than three months.
5. Notify the state employment service no later than two months, and in case of mass reduction - no less than three (clause 2, article 25 of the Law of the Russian Federation of 19.04.1991 No. 1032-1 "On employment in the Russian Federation"). If there is a trade union organization at the enterprise, notify the trade union within the same time frame (part 1 of article 82 of the Labor Code of the Russian Federation).
6. Notify in writing of the availability of suitable vacancies at the enterprise with a proposal to the dismissed employee to fill them. However, vacancies must be offered during the entire two-month notice period for each new vacancy.
7. Receive a written refusal from the employee of the proposed vacancies. In case of consent to take one of the vacancies, stop the procedure for dismissal by reduction and transfer to the position (profession) chosen by the employee.
8. Dismiss the employee in the usual manner on the date specified in the notice of reduction and upcoming dismissal (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

Established practice

Retrenchment is one of the most contested grounds for dismissal. The employer should pay attention to several points. First, to offer the employee not only a vacant position or a job corresponding to his qualifications, but also a vacant lower position or a lower-paid job. Secondly, if new vacancies appear, do not forget to offer them to the employee. Thirdly, to check whether the employee has a pre-emptive right to stay at work. Fourthly, to warn the employee about the upcoming reduction in writing and under a personal signature at least two months in advance. Fifth, check if the employee is on vacation or on sick leave on the day of the reduction.

Arbitrage practice

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The Soviet District Court reasonably reinstated the plaintiff at work, since her dismissal was carried out by the employer in violation of Part 6 of Art. 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer (with the exception of cases of liquidation of the organization) during the period of his temporary disability and during his vacation. The court found that the laboratory where the plaintiff worked was liquidated by order of the rector. The plaintiff applied with a written application for granting her unused vacation days with subsequent dismissal under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation. By order, the plaintiff was granted unused vacation days from 11/03/2007 to 01/16/2008, followed by dismissal due to staff reduction. By order dated 05.11.2008, she was dismissed from work under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation from 16.01.2008. The court also found that the plaintiff was ill during her vacation (from 01/09/2008 to 01/24/2008). On January 13, 2008, she notified the employer of her incapacity for work and the right to extend her leave in accordance with Art. 124 of the Labor Code of the Russian Federation. Despite this, the employer did not extend the leave to the plaintiff, illegally dismissing her under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation during the period of vacation and temporary disability, which contradicts the norm of Part 6 of Art. 81 of the Labor Code of the Russian Federation.

The example shows that it is necessary to comply with formalities up to the dismissal of the employee. In the case under consideration, non-compliance with the prohibition established by Part 6 of Art. 81 of the Labor Code of the Russian Federation, served as the basis for recognizing the dismissal of an employee as illegal and reinstating him at work.

4. Dismissal for non-compliance

Clause 3, part 1, art. 81 of the Labor Code of the Russian Federation provides for the possibility of dismissal of an employee due to his inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification. As noted by the Plenum of the Armed Forces of the Russian Federation, at the same time, certification should be carried out in the manner established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers. The employer does not have the right to terminate the employment contract with the employee on the above grounds, if the certification was not carried out in relation to him or the certification commission came to the conclusion that the employee complies with the position held or the work performed. The conclusions of the attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case (clause 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2).

In addition, when an employee is dismissed on this basis, the employer is obliged to prove that he offered him another job that matches his qualifications, but he refused, or the employer was not able (for example, due to the lack of vacancies or jobs) to transfer the employee with his consent to other job he has in the area.

Applications

In relation to employees who are required to undergo certification in accordance with the law, local regulations of the organization. As you know, employees can be divided into two categories: those who are required to undergo periodic certification due to the requirements of regulatory legal acts (doctors, prosecutors, teachers, etc.), and those who undergo such certification if there are requirements established by the internal documents of the organization. Questions about the first category are much less common than about the second. Indeed, in order to establish requirements for certification, not only the grounds are necessary, but also the procedure for conducting, frequency, methodological base, and so on.

controversial points

• no need for certification (for example, the employee has positive results of the previous certification and the lack of grounds for a new one, including by deadline);
• lack of certification. The position of the courts is as follows: the dismissal of an employee on the specified basis without certification is not provided. If the employer does not provide the court with evidence of the legality and observance of the procedure for dismissing an employee in accordance with the rules of Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal cannot be recognized as legal;
• non-compliance with the certification procedure;
• inconsistency of certification conclusions with actual circumstances;
• non-compliance with the procedure for dismissal on the grounds under consideration (say, in terms of the lack of an offer of another job at the same enterprise);
• "Delay" in the application of the ground (for example, the dismissal of an employee on the specified grounds two years after receiving the results of the certification).

Correct Application Algorithm

To terminate an employment contract due to an employee’s inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code of the Russian Federation), the following legal facts and documents are required:

1. the decision of the attestation commission confirming the above fact;
2. an offer in writing of another job and the employee's refusal of it (in writing). Staff list confirming the availability of vacancies;
3. the absence of the employee’s fault in the improper performance of labor duties, i.e. the employee does not correspond to his position due to insufficient qualifications, and this is precisely what prevents him from fulfilling his duties. Qualification consists of at least the following elements: knowledge, skills, which are enshrined in the state educational standard in the specialty in the qualification directory.

Established practice

An analysis of judicial practice shows that the inconsistency of an employee with the position held or the work performed can only be confirmed by the results of an appraisal carried out in the appropriate manner and the issuance of a negative conclusion on the qualifications of the employee based on its results. The employer does not have the right to dismiss him on this basis, if there was no attestation in relation to him.

Arbitrage practice

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The employee filed a lawsuit against the Municipal Unitary Enterprise Housing and Public Utilities for reinstatement and payment for the time of forced absenteeism. The plaintiff worked in the organization as an electrician and was dismissed under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation for inconsistency with the position held. The reason for the dismissal was the lack of documents giving the right to work as a duty electrician.

The court found that before hiring, the plaintiff passed a knowledge test of the Labor Code of the Russian Federation, PB of electrical installations, traffic rules, PPB 01-03, PORM and he was assigned the III electrical safety group, which served as the basis for issuing him the appropriate certificate. However, the employer violated the procedure for dismissal (did not create an attestation commission, did not conduct an attestation, therefore, there is no conclusion of the attestation commission that the plaintiff does not correspond to the position held). In addition, upon dismissal, the employer did not offer the plaintiff in writing the available vacancies at this enterprise, which is a prerequisite for dismissal on the specified basis. Thus, the court concluded that the dismissal of the plaintiff cannot be recognized as legal, therefore, the claims were fully satisfied (decision of the Uletovsky District Court of the Trans-Baikal Territory dated April 19, 2011 in case No. 2-79 / 2011) .

Upon dismissal under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is necessary not only to comply with all the formalities and procedures, but also to have a real basis, otherwise the employee will be reinstated at work.

5. Repeated dereliction of duty

Dismissal on the specified basis is provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation and is possible only with repeated failure to fulfill duties.

Applications

If the employee has "minuses" in the work, allowing to apply a penalty to him. At the same time, the “minuses” should be in the nature of a violation of labor discipline, including the requirements of the job description, local regulations, etc. In the case of an impeccable behavior and work of an employee, such a basis for dismissal does not apply to him.

controversial points

• there is no repetition (systematicity) of the violation (the violation is of a single nature);
• in the presence of systematicity - the absence of punishment for the previous violation (there is no basis for applying the considered grounds for dismissal);
• missing the deadline for repetition, i.e. a situation where a penalty for a previous violation has been withdrawn or extinguished (more than one year has passed);
• missing the deadline for applying a new penalty in the form of dismissal on the specified basis. It is six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit - two years, as well as one month from the day the misconduct was discovered (the day when the misconduct is discovered, from which the monthly period begins, is considered the day when the person to whom the employee is subordinated by work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions). At the same time, the time of illness of the employee, his stay on vacation (any of its types), as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) are not counted in the monthly period for the application of a disciplinary sanction. The absence of an employee from work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period;
• successful contestation by the employee of the previous penalty, which leads to the loss of the sign of repeated violations;
• application of a penalty without reason (the actual absence of a violation by the employee).

Correct Application Algorithm

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary responsibility.
2. Find a new violation.
3. Check the procedure for bringing to disciplinary responsibility in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (fixing the fact of a violation, demanding an explanation, drawing up an act on the failure to provide an explanation after a two-day period, etc.).
4. Issue a dismissal order under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, following the usual procedure established by Art. 84.1 and 140 of the Labor Code of the Russian Federation.
5. Familiarize the employee with the order and conduct a full settlement with him upon dismissal.

Arbitrage practice

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33-35 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2. Thus, the courts, considering disputes, must take into account that an employee’s failure to perform duties without good reason means failure to perform labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

• absence of an employee without good reason at work or workplace. If a specific workplace is not specified either in the employment contract or in the local regulatory act, then one should refer to Part 6 of Art. 209 of the Labor Code of the Russian Federation, according to which the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;
• refusal of an employee without good reason to perform labor duties in connection with a change in the established order of labor standards (Article 162 of the Labor Code of the Russian Federation), since he is obliged to perform a labor function determined by an employment contract, as well as comply with the internal labor regulations in force in the organization (Article 56 TC RF). If the employee refuses to continue working due to a change in the terms of the employment contract determined by the parties, then he should be dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (see paragraph 2 of this article on page 33);
• refusal (avoidance) without good reason of medical examination of workers of certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

The Decree of the Plenum of the Armed Forces of the Russian Federation also states that the employer has the right to terminate the employment contract on this basis only if a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his labor duties without good reason, it was not removed or extinguished. It is also possible to dismiss under this article if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

In addition, the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice of dismissal.

It is the employer, in the event of a dispute, who is obliged to provide evidence proving that, firstly, the violation committed by the employee and which was the reason for dismissal actually took place and could be the basis for terminating the employment contract; secondly, the employer did not violate the terms for the application of a disciplinary sanction, provided for in Parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation.

Arbitrage practice

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The Soviet District Court reasonably recognized the dismissal of the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation illegal. The court found that the plaintiff had been reprimanded for violating work discipline. However, the plaintiff contested the order to impose a reprimand, and by the decision of the justice of the peace it was declared illegal. Despite this, the plaintiff was dismissed due to the employee's repeated failure to perform his job duties without good reason. Considering that the disciplinary sanction previously applied to the employee was declared illegal and thus there is no sign of repetition, the court concluded that there were grounds for dismissing the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation was not.

In addition, it must be borne in mind that when dismissing on this basis, the severity of each of the misconduct, the employee's attitude to work, and the consequences of misconduct are important.

6. Absenteeism and other guilty one-time actions of the employee

These grounds are deliberately collected in a single section, since they provide for the guilty actions of the employee and are, in essence, a disciplinary sanction for a violation. The grounds under consideration include:

1. a single gross violation by an employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation). This is absenteeism (subp. "a"); appearance at work in a state of intoxication (subparagraph "b"); disclosure of secrets protected by law, which became known to the employee in connection with the performance of his labor duties (subparagraph "c"); the commission of theft, embezzlement, etc., at the place of work, established by a verdict or court order that has entered into legal force (subparagraph “d”); violation of labor protection requirements that caused serious consequences (accident at work, accident, catastrophe) or created a real threat of such consequences (subparagraph "e");
2. the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
3. commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

Applications

Only in cases where there are guilty actions of the employee, which have found their expression in a disciplinary violation. If the employee with whom it is necessary to terminate the employment contract is not a violator of discipline (see paragraph 5 of this article on page 40), dismiss him on the grounds provided for in paragraphs 6-8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is impossible.

controversial points

• lack of grounds for dismissal (for example, the absence of an employee at work for more than four hours in a row for good reasons cannot be regarded as absenteeism);
• the presence of factual grounds, but a violation of the dismissal procedure. Since in the cases described above the grounds for dismissal are disciplinary violations, when applying dismissal as a disciplinary sanction, it is necessary to thoroughly observe the procedure for imposing a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation;
• violation of the term of application of the basis. Dismissal on the specified grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, being on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of the employee (part 3 of article 193 of the Labor Code of the Russian Federation). A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit or audit of financial and economic activities or an audit, later than two years from the day it was committed. The indicated time limits do not include the time of proceedings in a criminal case (part 4 of article 193 of the Labor Code of the Russian Federation).

Correct Application Algorithm

Dismissal on the grounds considered should be the logical conclusion of the procedure for applying a disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation: with the fixation of a fact, the demand for explanations, the clarification of the circumstances of the case by an internal audit, etc.

Established practice

In most cases, employees win disputes due to the recognition of dismissal orders as invalid due to violations of the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation). As a rule, these are ordinary disputes about challenging penalties, only the penalty here is dismissal.

7. Termination of relations with the head

Parting with the head of the organization is possible not only for all of the above reasons, but also for several additional ones:

1. In accordance with paragraph 10 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event of a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties. Heads of structural subdivisions (their deputies), chief accountant do not fall under this basis.
   The question of whether the violation was gross will be decided by the court. For example, failure to perform one's duties, which could cause harm to the health of employees or cause property damage to the organization, will be considered rude. At the same time, the obligation to prove that the violation took place and was gross lies with the employer (paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).
2. According to paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in cases provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization. In other words, an additional list of grounds and conditions for their application (not named in the Labor Code of the Russian Federation) can be established in labor contracts with these persons.
   As additional grounds for dismissal, the employment contracts of the heads of organizations may provide, for example, failure to comply with the decision of the general meeting of shareholders; infliction of losses to the managed enterprise, society on a large scale (specify the criteria); allowance by the head in connection with inefficient work for more than three months of delay in the payment of wages to employees.
3. Paragraph 2 of Art. 278 of the Labor Code of the Russian Federation provides an additional basis for terminating the employment contract with the head of the organization in connection with the adoption by the authorized body of the legal entity or the owner of the property of the organization, or the authorized owner of the person (body) decision on the early termination of the employment contract. The decision to terminate the employment contract on the specified grounds in relation to the head of the unitary enterprise is taken by the body authorized by the owner of the unitary enterprise in the manner established by the Government of the Russian Federation. At the same time, this ground is subject to a general ban on dismissal at the initiative of the employer during the period of temporary disability and during the period of vacation, except in the case of liquidation of the organization or termination of activity by an individual entrepreneur (paragraph 50 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2).

Applications

Only in relation to a specific category of workers - managers.

controversial points

• lack of grounds for dismissal;
• violation of the dismissal procedure.

Correct Application Algorithm

1. Record the grounds for dismissal so that there is documentary evidence.
2. Follow the general dismissal procedure (including a ban on dismissal of an employee during his or her temporary disability or vacation).

Arbitrage practice

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The Samara District Court considered a case on a claim for the reinstatement of a dismissed employee at work as a director. The plaintiff challenged her dismissal, made for inefficient work on the basis of paragraph 13 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The court found that the parties concluded an employment contract for a period of one year, according to which the possibility of its early termination under Art. 81 of the Labor Code of the Russian Federation on additional grounds for dismissal, including failure to comply with certain provisions that affect the financial performance of the enterprise. The plaintiff worked in the position for 54 days, after which she was fired. The reason was the act of a comprehensive documentary audit and the balance sheet, which testified to the deterioration of financial and other indicators in the work of the enterprise. The court pointed out that the grounds for dismissal may be improper performance of the terms of the employment contract during the period of its validity, and not the period preceding its conclusion. The defendant could not prove the fact that the plaintiff did not fulfill the terms of the contract during the period of its validity, therefore the plaintiff was reinstated at work in her previous position, and a salary was collected in her favor for the time of forced absenteeism.

In conclusion, we note that we have given seven possible grounds for dismissal, which can be used by the employer if it is necessary to terminate the employment contract with the employee. Each of these bases has its own specifics. Not everything can be applied to all employees without exception. In addition, some grounds suggest the presence of certain factors and circumstances that may not appear "at the request" of the employer.

However, an analysis of all the considered types of grounds allows us to conclude that if there is a goal to terminate the employment relationship with the employee, a competent approach to solving this issue and carefully carrying out the legal dismissal procedure, the task is not immediately, but can be solved. Even the dismissal of an employee belonging to the “preferential” category (say, a woman with children under the age of three) can occur in the absence of his desire on a completely legal basis. You just need to choose the right one and implement it.

I would like to add that the presence of such an opportunity should not run counter to ethical issues or be transformed into discrimination. There must be a measure in everything. Possibility - does not mean real use. Although knowing your rights and opportunities is useful not only for employees, but also for employers.

Footnotes

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