Systematic non-fulfillment of labor duties without good reason Art. Violations for which dismissal is possible due to systematic non-fulfillment of labor duties. Vladyko N

When it comes to dismissing an employee due to systematic non-performance job duties, the employer should pay attention to the reasons and circumstances under which he did not fulfill them, because if they turn out to be valid, the employee can easily be reinstated at work. We bring to your attention an overview of judicial practice on this topic. .

An employee who has already been involved in disciplinary responsibility(i.e. has an unremoved and outstanding reprimand or remark), if he repeatedly violates labor discipline, he can be fired for systematic (repeated) non-fulfillment of labor duties (paragraph 4 of article 42 Labor Code RB (hereinafter - TK)).

IT IS IMPORTANT! Dismissal is possible regardless of what the first penalty was, i.e. in case of repeated violation, it is possible to dismiss both an employee who has a reprimand and an employee who has been reprimanded.

If a dispute arises about the legality of dismissal on the specified grounds, the court examines the evidence that confirms the existence of disciplinary sanctions previously applied to the employee and compliance with the dismissal procedure. If the employer provides evidence of the justification for the dismissal of the employee, then the latter's claim for reinstatement by the court will be rejected.

IT IS IMPORTANT! The application of a penalty in the form of dismissal in this case is the right, and not the obligation of the employer. Therefore, the employer may limit himself to another reprimand or remark, or not apply any penalties to the employee at all.

Signs of violation of labor discipline

A violation of labor discipline is recognized as a guilty failure to perform or improper performance by an employee of his duties (Article 197 of the Labor Code). These obligations can be fixed in the employment contract, job description, as well as local regulatory legal acts (hereinafter - LNLA) of the employer, with which the employee must be familiarized with signature.

Thus, dismissal is possible if an employee who has an unremoved and outstanding remark or reprimand commits actions prohibited employment contract, job description, LNPA, or, conversely, does not perform the actions provided for by these documents.

Examples of such actions might be:

Failure labor function;

Late for work early care From the job);

Failure to comply with the instructions of the head;

Violation of other labor duties specified in the LNLA of the employer, with which the employee is familiarized against signature.

Violations for which dismissal under paragraph 4 of Art. 42 TK can be declared illegal

The provisions of Art. 198 TK say that when applying disciplinary action it is necessary to take into account the severity of the committed misconduct, the circumstances under which it was committed, the previous behavior of the employee, his attitude to work, as well as the compliance of the disciplinary sanction with the severity of the committed misconduct. These provisions are accepted judicial practice as a protection of the employee from the subjective attitude of the employer when imposing a disciplinary sanction. This approach ensures the implementation of the principles underlying the holding of an employee to account. These include the principle of justice, when responsibility corresponds to the severity of the misconduct committed, and the principle of expediency, based on the individualization of the penalty applied, depending on the specific circumstances, the severity of the misconduct and the personality of the employee.

Example 1

Voronova V.P. worked as a watchman in a limited liability company "M". By order of the director of the company dated 07/06/2012 No. 79-k, she was dismissed under paragraph 4 of Art. 42 of the Labor Code (systematic non-fulfillment by an employee without good reason of labor duties, if disciplinary measures were previously applied to him). Considering his dismissal unlawful, Voronova The.P. applied to the court with a claim for reinstatement, arguing that the disciplinary sanctions applied to her were unlawful. The district court dismissed her claim.

The Judicial Collegium for Civil Cases of the Regional Court, having considered the appeal of Voronova V.P., overturned the decision of the district court and issued a new decision, which satisfied the plaintiff's demands.

The Judicial Board recognized that on July 6, 2012, the plaintiff was subjected to disciplinary action for leaving her job on June 28, 2012 without the permission of the shift supervisor. workplace. The court found that her absence was of short duration, as she needed to take medicine for her appointment. Although the actions of the plaintiff contained signs of a disciplinary offense (guilty failure to comply with the requirements of the job description), since she left the workplace without notifying the shift supervisor, the cassation instance, considering disciplinary offense Voronova V.P., rated it as insignificant due to the fact that her absence from the workplace was short-term (3 minutes).

Formally, the actions of Voronova V.P. should be regarded as a disciplinary offense, but due to the nature of the offense committed, i.e. its insignificance, the judicial board for civil cases recognized the application to Voronova The.P. disciplinary action in the form of a reprimand unlawful.

The second violation for which she was subjected to a disciplinary sanction was the conduct of personal telephone conversations on the office phone. On the basis of the job description approved by the director of LLC "M", which defines the rights and obligations of the watchman, a ban on conducting personal conversations from the telephone set located at the watchman's workplace has been established.

The Judicial Collegium for Civil Cases of the Regional Court did not agree with the conclusion of the District Court on the validity of applying to Voronova The.P. this disciplinary sanction, taking into account the reason why Voronova The.P. conducted telephone conversations. Her young daughter was alone at home, and Voronova V.P. worried about her health and safety.

The reason for the dismissal was the fact that on June 28, 2012 Voronova V.P. left her workplace. The case materials established that this happened due to the need to take medicine in the first-aid kit. District Court considered the plaintiff's actions as a disciplinary offense due to the fact that she did not inform anyone of her intention to leave her post for a short time. The court of cassation agreed with the assessment of the plaintiff's behavior, established by the court of the first instance, but due to the insignificance of the misconduct, she recognized it as inappropriate to apply a disciplinary sanction to her in the form of dismissal under paragraph 4 of Art. 42 TK.

The Judicial Board came to the general conclusion that the actions Voronova The.P. formally can be considered as disciplinary offenses, but due to their insignificance, the employer has no reason to attract Voronova V.P. to disciplinary action in the form of dismissal.

The above example shows that when considering a labor dispute, the court took into account the gravity of the misconduct committed and the circumstances under which it was committed.

Therefore, the head of the organization, before making a decision on the application of a disciplinary sanction, must establish the absence of valid reasons for the employee’s disciplinary offense (for this, it is necessary to carefully study all the materials relating to the circumstances of this case).

In addition, the employee's actions that are not related to his job duties should not be considered as a disciplinary offense. Therefore, it is impossible to dismiss an employee under paragraph 4 of Art. 42 of the Labor Code, for example, for misbehavior in everyday life.

Dismissal of an employee under paragraph 4 of Art. 42 of the Labor Code in the presence of his application for dismissal on own will

In practice, the question often arises: is it possible to dismiss an employee who already has a disciplinary sanction and wrote a letter of resignation of his own free will for systematic failure to fulfill his duties?

When answering this question, one should proceed from the fact that the labor law applies to an employee who has submitted an application for dismissal of his own free will during the notice period for dismissal. in full without any restrictions. Labor Relations in this case, they are terminated only after the expiration of the notice period for dismissal. Therefore, despite the employee's statement of dismissal of his own free will, he can be dismissed at the initiative of the employer for a systematic violation of labor discipline, if the violation that was the reason for dismissal actually took place and could be the basis for termination of the employment contract.

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee (including dismissing him under clause 4 of article 42 of the Labor Code) even when he submitted an application for termination of the employment contract on his own initiative before committing a disciplinary offense.

What awaits the employer in case of violation of the procedure for dismissal under paragraph 4 of Art. 42 TC

If, when considering a case in court at the employee’s claim on the legality of the dismissal, it turns out that the employer violated the procedure for registering the dismissal or dismissed the employee without sufficient grounds, and if the court recognizes the dismissal as illegal, the employee will have to be reinstated with payment wages for the duration of the forced absence.

What needs to be proven in court

IT IS IMPORTANT! So, when considering cases on the reinstatement of persons dismissed due to systematic failure to fulfill their labor duties without good reason, if these persons have a disciplinary sanction (according to clause 4
Art. 42 of the Labor Code), the court draws attention to the following circumstances:

1) what were the employee's labor duties;

2) what exactly was the violation that caused the dismissal;

3) whether the misconduct underlying the dismissal order was expressed in the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (and the employee does not agree to continue working in the new conditions);

4) repeated non-fulfillment of labor duties without valid reasons;

5) the reasons for the repeated non-fulfillment of labor duties by the employee, the nature of these reasons (valid or disrespectful);

6) the guilt of the employee in non-fulfillment without good reason of the labor duties assigned to him;

7) the gravity of the misconduct committed, the circumstances under which it was committed, the consequences of the misconduct;

8) the behavior of the employee preceding the misconduct, his attitude to work;

9) previously applying disciplinary measures to the plaintiff, the correctness of imposing on the employee all disciplinary sanctions with which the employer justified the dismissal order, regardless of whether the plaintiff claimed claims to recognize them as unreasonable;

10) observance by the employer of terms for application of disciplinary punishment;

11) whether the trade union body was notified of the dismissal of the employee (whether the consent of the trade union body was obtained for his dismissal), if the employee was a member of the trade union (in accordance with Article 46 of the Labor Code);

12) whether the dismissal was made during the period of temporary disability of the employee or while on vacation;

13) other circumstances.

Required Evidence in cases of this category, which the defendants must submit, are:

A copy of the order on the employment of the plaintiff (extract from the order on employment);

A copy of the plaintiff's dismissal order (extract from the dismissal order);

A copy of the employment contract with the employee, job descriptions and other documents that allow you to determine what duties the employee performed;

Copies of orders for the imposition of disciplinary sanctions;

Materials on the basis of which disciplinary sanctions were imposed (memorandums, materials of internal audits, explanatory notes, acts, etc.);

Duration Documents seniority employee (work book);

Information about the average salary of the plaintiff.

A systematic violation by an employee without valid reasons of labor duties must be documented, in particular, by an order to impose a disciplinary sanction.

If disciplinary sanctions were not officially applied to an employee who violates labor discipline, dismissal on the basis of paragraph 4 of Art. 42 of the Labor Code will be declared illegal.

When considering labor disputes, it often turns out that disciplinary sanctions were not properly executed, and this serves as the basis for satisfying the claim and restoring
the formation of an employee at work, even if he committed a disciplinary offense.

Example 2

Smirnov A.L. filed a lawsuit against OOO E for reinstatement, recovery of wages for the time of forced absenteeism, compensation for non-pecuniary damage, as well as the costs of paying for the assistance of a representative. His dismissal from June 1, 2012 under paragraph 4 of Art. 42 of the Labor Code he considered illegal. At the same time, the plaintiff asked to remove the disciplinary sanction in the form of a reprimand, imposed by the order of the employer dated May 25, 2012 No. 47 (hereinafter - order No. 47) after his dismissal.

In support of the claim Smirnov A.L. indicated that he worked at E LLC as an electrician of the 4th category. On the basis of the order of the employer dated 06/01/2012 No. 56 (hereinafter - order No. 56), he was dismissed under paragraph 4 of Art. 42 of the Labor Code "for systematic violation of labor discipline, failure to fulfill labor duties without good reason and being late for work." However, he had not previously been brought to disciplinary responsibility, and order No. 47 on the imposition of a disciplinary sanction on him, dated May 25, 2012, appeared only on July 10
2012 in the course of preparing a civil case for trial in his claim for reinstatement.

The representative of the defendant LLC "E" did not recognize the claim, explaining that there were no violations of labor legislation during the dismissal of the plaintiff, and asked to dismiss the claim.

The court, having heard the opinion of the parties, having questioned the witnesses, having examined the evidence presented, when considering the case, established the following.

In the text of order No. 56, as the basis for the dismissal of Smirnov A.L. indicated systematic violations labor discipline, being late for work. However, these facts cannot serve as a reason for dismissal under paragraph 4 of Art. 42 of the Labor Code, since there are no such grounds in the legislation.

The reason for dismissal indicated in order No. 56 isfailure to perform labor duties without good reason - also could not be a sufficient reason for the dismissal of Smirnov A.L. according to paragraph 4 of Art. 42 TC; in addition, as follows from Order No. 47, the plaintiff was punished on May 25, 2012 for failure to perform his labor duties without good reason by issuing a reprimand.

As it became known from the case file, orders No. 56 and No. 47 were based on the same memorandum of the section head dated 23.05.2012.

From the memorandum of the foreman foreman of the section it followed that “on May 23, 2012, the electrician Smirnov A.L. did not show up for work on time by 8 o’clock and was absent during the order”, i.e. late for work. This memorandum does not establish another disciplinary offense. The memorandum does not establish that essential fact, as far as Smirnov A.L. late for work.

The plaintiff himself at the hearing explained that he was late for 3 minutes and did not write an explanatory note, seeing in the situation a far-fetched creation of a conflict by the administration.

It follows from the text of Order No. 47 that it was issued on May 25, 2012. The order is based on a memorandum from the head of the section dated May 23, 2012, which
registered with OOO E under No. 21, and the memorandum dated May 31, 2012, which forms the basis of Order No. 56, is registered with OOO E under No. 20.

The representative of the defendant LLC “E” also presented the court with an act dated 05/25/2012, drawn up by the head of the site, an engineer and a personnel specialist, where it was indicated that the plaintiff Smirnov A.L. Order No. 47 was presented, which he refused to sign. However, the said document raised doubts about its authenticity and could not form the basis of the decision.

The head of the section, who acted as a witness, testified that he drew up the act of May 25, 2012 in the control room in the first half of the day, then in the afternoon of May 25, 2012, the reprimand order was presented to the plaintiff, with which he was acquainted with the personnel specialist.

Interrogated as a witness, the employee, who is a personnel specialist, showed that it was she who drew up the act of 05/25/2012, and the order to the plaintiff Smirnov A.L. was presented in the morning of May 25, 2012 in the personnel department of OOO E.

At the same time, a witness working as an engineer testified that on May 25, 2012, plaintiff Smirnov A.L. did not appear in the personnel department of OOO E. And from the time sheet it follows that on May 25, 2012 Smirnov A.L. didn't work at all - he had a day off. In addition, in order No. 56, there is no reference to order No. 47 in the base.

Thus, the court considered that all of the above indicates that order No. 47 on bringing the plaintiff to disciplinary liability was not issued within the specified period.

Assessing the actual circumstances of the case and the evidence presented, the court concluded that Order No. 47 was invalidated as not complying with the requirements of the law and issued after the dismissal of the plaintiff, and therefore a disciplinary sanction in the form of a reprimand imposed on Smirnov A.L. This order, in the opinion of the court, should be removed.

On June 1, 2012, bringing the plaintiff to disciplinary liability in the form of dismissal for repeated failure to perform labor duties without good reason, the defendant E LLC did not take into account that the plaintiff had not previously had disciplinary sanctions, he performed the tasks correctly and in a timely manner, which is objectively confirmed by the available evidence.

In view of the foregoing, the court concluded that the claims of Smirnov A.L. on reinstatement at work as an electrician of the 4th category in LLC "E" from July 1, 2012

Thus, by the decision of the court, order No. 47 for LLC “E” was declared invalid, the disciplinary sanction in the form of a reprimand imposed by order No. 47 was removed from the plaintiff. Smirnov A.L. was reinstated at work as an electrician of the 4th category in LLC "E" from July 1, 2012.
In his favor, the sums for the time of forced absenteeism, compensation for non-pecuniary damage and legal costs were recovered from OOO E.

In conclusion

Summing up, we draw attention to the fact that dismissal for systematic non-fulfillment by an employee without good reason of the duties assigned to him by an employment contract is possible only if the non-fulfillment or improper fulfillment by the employee of his labor duties is due to his fault, i.e. intentionally or through negligence, as a result of his illegal actions (inaction).

Illegal is an action (inaction) that does not comply with the requirements of the law.

In addition, based on judicial practice and current legislation, dismissal “under the article” may be lawful if the employer complies with all the formalities. Because in the event of unlawful dismissal for systematic non-fulfillment of labor duties, the employee, by a court decision, is subject to reinstatement at work (part one of Article 243 of the Labor Code), or the basis for his dismissal from work is subject to change (for example, to dismissal by agreement of the parties or voluntarily).

The employee also has the right to demand payment of average earnings for the time of forced absenteeism (Article 244 of the Labor Code), compensation for moral damage (Article 246 of the Labor Code), reimbursement of expenses for legal services(lawyer, other authorized person) (Article 124 of the Civil Procedure Code of the Republic of Belarus).

Natalia Vladyko , lawyer

100 r first order bonus

Choose the type of work Graduate work Course work Abstract Master's thesis Report on practice Article Report Review Test Monograph Problem solving Business plan Answering questions Creative work Essay Drawing Compositions Translation Presentations Typing Other Increasing the uniqueness of the text Candidate's thesis Laboratory work Help online

Ask for a price

Paragraph 5 of Art. 81 of the Labor Code provides for the possibility dismissal of an employee for repeated non-fulfillment of labor duties without good reason, if he has a disciplinary sanction. Dismissal requires the presence of a combination of several conditions:

1) non-fulfillment of labor duties must be repeated(at least repeated within a year, counting from the previous violation). For the first, even gross, violation on this basis, it is impossible to dismiss;

2) dismissal is possible only for violation or non-fulfillment of labor duties, i.e. the duties assigned to the employee by legislation or an employment contract (violation of the rules of internal labor regulations, job descriptions, orders of the head, technical rules and instructions, etc.).

Such violations include, in particular:

Being late for work or leaving work prematurely, being outside your workplace without good reason;

Refusal without good reason to temporarily transfer to another job, when the transfer does not require the consent of the employee;

Refusal or evasion without good reason to undergo a medical examination (mandatory for certain categories of workers), refusal to undergo work time training in safety and labor protection rules;

Failure to comply with the lawful orders and orders of the employer;

Refusal to perform work that is part of the employee's labor duties.

Refusal to perform work that is not part of the employee's responsibilities cannot be considered violations of labor discipline; refusal to comply with illegal orders of the employer. Failure to perform or improper performance of labor duties may cause dismissal if it is allowed without a good reason. It is impossible, for example, to dismiss an employee if he refused to be transferred under emergency circumstances to work that he cannot perform for health reasons, or from transfer to work related to liability, justifying his refusal by the absence necessary knowledge or experience with values;

3) non-fulfillment of labor duties must take place through the fault of the employee, i.e., it must be allowed intentionally or by negligence (negligence). Intent assumes that the employee knew that he allowed a violation of discipline or improper performance of work duties, but was indifferent to this. Negligence (negligence) suggests that the employee did not know that he was committing a violation, but should have known it. Those committed by negligence (negligence) include violations of professional duties caused, for example, by ignorance of the law, instructions, rules, technological processes which the employee as a professional should have known. Violations! of the rules of labor protection, safety, fire safety are qualified as committed guilty if the employee was familiarized with them by the employer in advance.

If the employee is not guilty of the violation, the termination of the employment contract on the grounds under consideration cannot follow. Therefore, the employer must always establish the circumstances of the violation and give it a correct legal assessment; at the same time, it is imperative to require a written explanation of the employee about the causes and circumstances of the violation;

4) dismissal under paragraph 5 of Art. 81 of the Labor Code must be preceded by the application of a disciplinary sanction for a previously committed misconduct, provided for in Art. 192 of the Labor Code, imposed in accordance with the law. okay. A disciplinary sanction has legal effect within a year from the date of its imposition; invalidated recovery in attention is not taken.

Dismissal on this basis is a measure of disciplinary action (Article 192 of the Labor Code), therefore it must be carried out in the manner and within the time limits established for the imposition of disciplinary sanctions (Article 193 of the Labor Code). In this case, the severity of the misconduct committed, the circumstances of its commission, the personality of the employee and other factors should be taken into account, since dismissal should be used as an extreme measure of influence on the employee. To protect employees from illegal dismissals, termination of an employment contract with a trade union member on this basis requires taking into account the motivated opinion of the elected trade union body.

Sofia Povzikova, head of HR administration at Coleman Services, continues to cover the topic of employer-initiated layoffs. Today we will talk about layoffs associated with repeated non-performance official duties workers.

The specified basis is established by paragraph 5 of Article 81 of the Labor Code Russian Federation, but you need to use it, having thoroughly prepared personnel documentation on the one hand, and on the other hand, having a margin of time, because. on this basis, as a rule, takes at least a month.

What is meant by non-fulfillment or poor-quality performance of official duties?

Non-performance of labor duties is a violation of the requirements of labor legislation, the functions specified in the employment contract, local regulations in force with the employer: PWTR, job description, orders of the organization's management, technical rules for processing documentation or using equipment, labor protection and safety requirements, etc. .P.

Example: an employee works in a call center and his job description states the obligation to “make 40 phone calls per shift”. If an employee does not fulfill the specified norm during the day, then this indicates a poor-quality performance of official duties. If during the day the employee for some reason did not make a single call at all (he came up with a job for himself or found reasons to shirk from work), then this is a failure to fulfill duties.

As can be seen from the example, one of the most important documents that establish the requirements for the quality of job duties is another document that specifies the employee's labor function.

The job description is not a mandatory local normative act, but its presence and competent wording help the employee, his immediate supervisor and specialists personnel service determine the quality of the employee's work in disputable or conflict situations.

Very often, when compiling a job description, streamlined wording is used: “calling customers” or “registering customer orders”. Such vague obligations are not specific, which means that some other document is needed that establishes the criteria for assessing the quality of work, and the employee must be familiarized with it under signature. Otherwise, the actions of the employer can be appealed, indicating that the calls to customers have been completed, but the employee was not informed that exactly 40 calls were needed.

What is meant by "repeated failure"?

In practice, there are very often cases when managers complain to HR specialists about the quality of work of line personnel. However, just as often, managers refuse to document the identified violations: a lot of documents need to be drawn up, and, as always, there is not enough time. The HR specialist must understand that the verbal complaints of the head cannot be considered as a failure to perform official duties. Therefore, “repeated non-performance” is several documented disciplinary sanctions for various violations of various job duties.

It is impossible to impose a disciplinary sanction on the same violation, otherwise two penalties will be applied to the employee for one misconduct, which is unlawful (part 5 of article 193 of the Labor Code of the Russian Federation).

Let's return to our example: the first disciplinary sanction the employee can (if documenting) receive for poor-quality performance of official duties, the second, for example, for being late for work.

In 2004 the Plenum Supreme Court The Russian Federation (paragraph 33 of Decree No. 2 of March 17, 2004) decided: in order for dismissal on the specified basis to be legal and justified, two conditions must be met simultaneously:

the employee does not perform labor duties without good reason;

the employee commits a violation repeatedly, that is, he already has at least one outstanding or outstanding disciplinary sanction in the form of a remark or reprimand.

What documents to issue in order to announce a disciplinary sanction to an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and, his manager requires the HR specialist to announce to him. We considered in detail the actions of the personnel officer when issuing a disciplinary sanction in the article “Loss of confidence”.

Let's repeat some points:

It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memorandum must contain:

Full name of the employee;
date and time of the violation. If a violation is detected after the working day, this should also be indicated.
details of the violation itself and the discovery of the violation
proposals of the head on the measures of influence on the employee.

Indicative text of a memo for our example:

“April 13, 2017 call center specialist (full name) during work shift from 9.00 to 18.00, in violation of the requirements of the job description, made 10 phone calls. I became aware of this fact in the process of summing up the results of the working day. I propose to announce (full name) reprimand.

It is necessary to explain to the immediate supervisor that a reprimand can be announced only if there is a written explanation from the employee about the reasons for non-performance of official duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for explanations) and oral (when the manager orally requires an explanation from the employee). I can’t advise my fellow personnel officers the second way: if an employee appeals against the employer’s actions, then without an appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

The requirement to provide explanations, as a rule, is prepared by HR specialists and issued to the employee, necessarily fixing the time of issuance of the document. The requirement is issued to the employee against signature. At the request of the employee, he may be given a copy of the Requirements.

After two working days, the employee must provide a written explanation. If an explanation is not provided, an Act of refusal to provide explanations must be drawn up. The act is announced to the employee in the presence of the spirit of witnesses. The employee may put a signature on familiarization with the Act, or may refuse to familiarize himself. In this case, the Act is read aloud to the employee.
Two received documents that recorded the violation are submitted for consideration to the head of the organization (or other authorized person) for a decision. The head, taking into account the facts available, may decide on the recovery or on the absence of grounds for it, may mitigate the punishment or toughen it. The leader reflects his decision in a resolution that he writes on a memo.
Based on the decision of the head of the organization, the personnel service specialist prepares an Order to impose a disciplinary sanction on the employee.

The order of actions of HR specialists may vary depending on the traditions of the organization, but two primary documents are required, because are the starting points for calculating the timing.

Since we are talking about repeated violations, the specified procedure must be performed at least one more time.

There are two disciplinary actions. What's next?

So, the personnel service specialist has two orders for the imposition of disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Prepared and signed by witnesses Acts of refusal to familiarize themselves with the documents.

In the event of the next violation, a third set of evidentiary documents is prepared and submitted for decision to the head of the organization. If the decision of the head is dismissal, then it is necessary to prepare an order for dismissal in the unified form T-8, or in the form established in the organization. If the order cannot be brought to the attention of the employee or the employee refuses to read it against his signature, then a corresponding entry is made directly on the order (Article 81, paragraph 5 of the Labor Code of the Russian Federation).

Thus, the preparation of dismissal, in connection with the repeated failure to perform official duties by employees, requires:

The presence of a job description (or detailed job responsibilities in an employment contract)

Willingness to process a lot of documents quickly and accurately.

Time, because dismissal associated with repeated non-fulfillment of official duties by an employee takes about a month

Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (Article 81 of the Labor Code)

Because Art. 192 of the Labor Code considers dismissal for violation of labor discipline to be a disciplinary measure, then dismissal for repeated violation of labor duties is possible in compliance with the rules established for the imposition of disciplinary sanctions. Dismissal under paragraph 5 of Art. 81 of the Labor Code is lawful when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of the duties imposed by the labor regulations; 2) failure to fulfill these duties for unjustified reasons, i.e. committed unlawfully intentionally or by negligence; 3) repeated culpable violation of labor duties, i.e. disciplinary offense does not take place for the first time, for which the employee was earlier (during the last

working year) a disciplinary measure was applied; 4) a specific offense before dismissal, from the moment of which more than a month has not passed.

The resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 dated December 22, 1992 states (paragraph 24) that a violation of labor discipline is a failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of internal labor regulations, job descriptions, regulations, administration orders, technical regulations, etc.).

Such violations, in particular, include; eight

a) the absence of an employee without good reason at work up to four hours during the working day, his being not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;
b) the refusal of the employee without good reason to comply with the new labor standards amended in the prescribed manner;
c) refusal or evasion, without good reason, of the medical examination of the employee, for which it is mandatory, as well as the refusal of the employee to undergo special training during working hours and pass exams on safety precautions and operating rules, for which this required condition permission to work.

Refusal to perform work that is not part of the employee's labor duties (except in cases of mandatory transfer for employees), or from performing a public assignment, as well as incorrect actions of an employee that are not related to labor duties, are not a violation of labor discipline and therefore cannot serve grounds for termination of the employment contract under paragraph 5 of Art. 81 TK.

Therefore, the dismissal will be lawful if, immediately before the dismissal, the employee committed a disciplinary offense, and earlier during the last working year, a disciplinary sanction was imposed on him for violating labor discipline and it has not been lifted.

When taking into account the penalties, their legality is checked, i.e. whether the order of their imposition was followed. A penalty imposed in violation of the established procedure is not taken into account. The deprivation of the bonus is not a disciplinary sanction, so it should be taken into account. If at least one of the four previously indicated conditions is absent, termination of the employment contract under paragraph 5 of Art. 81 of the Labor Code is considered illegal.

Dismissal is possible in compliance with the terms and procedure established by Art. 193 of the Labor Code (no later than one month from the date of discovery and no later than six months from the date of the misconduct, and based on the results of an audit or financial check - economic activity- not later than two years from the date of commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., according to clauses 5, 6, 8, 10 and 11 of article 81 of the Labor Code). At the same time, only the time of the employee's illness or being on vacation is not counted in the monthly period for the application of a disciplinary sanction in the form of dismissal. In other cases, absence from work does not interrupt the course of the specified period. As previously indicated, for this dismissal, the employer must request the opinion of the trade union body on dismissal (Article 373 of the Labor Code).

A) the absence of an employee without good reason at work up to four hours during the working day, finding him not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;

B) the refusal of the employee without good reason to comply with the new labor standards amended in the prescribed manner;

C) refusal or evasion, without good reason, of the medical examination of the employee, for which it is mandatory, as well as the refusal of the employee to undergo special training during working hours and pass exams on safety and operating rules, for which this is a mandatory condition for admission to work.

Clause 6. A single gross violation of labor duties by an employee. (Article 81 of the Labor Code).

This basis for dismissal contains five subparagraphs indicating a specific gross disciplinary offense entailing the dismissal of the employee, which is referred to in the order and work book.

BUT) absenteeism (absence from work without good reason for more than four consecutive hours during the working day);

B) appearing at work in a state of alcoholic, narcotic or other toxic intoxication;

AT) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;

G) committing at the place of work theft (including small) of another's property, its deliberate destruction or damage, embezzlement, established by a court verdict that has entered into legal force or a decision of a body authorized to apply an administrative penalty;

D) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created real threat occurrence of such consequences. This is a new (as well as subparagraph “c”) basis for dismissal, which was not contained in the previous Code of Labor Laws.

Valid reasons for non-attendance at work include circumstances confirmed by documents or testimonies such as illness (even in the absence of a sick leave), illness of a child, transport delays due to accidents, natural disasters, participation of a citizen in saving people and property, passing exams, tests without proper formalization study leave, refusal of illegal translation and absenteeism in connection with this new job and etc.

Clause 7. the commission of guilty acts by an employee directly servicing cash or commodity values if these actions give rise to a loss of confidence in him on the part of the employer (Article 81 of the Labor Code).

On this basis, a special subject is subject to dismissal, i.e. an employee directly serving monetary or commodity values. The Supreme Court of the Russian Federation in Resolution No. 16 of December 22, 1992 clarified that these include employees who receive, store, transport, distribute and other actions with material values(for example, a cashier, a warehouse manager, a salesperson). Most often in trade organizations under paragraph 7 of Art. 81 of the Labor Code dismiss sellers for deceiving buyers when calculating, underweight, selling goods without cash receipts. It should be borne in mind that the loss of confidence in the employee on the part of the employer must be based on reliable data giving the right to dismissal. In the absence of the employee's fault, dismissal is unacceptable on this basis.

2.8. Clause 8. The commission of an immoral offense by an employee performing educational functions is incompatible with the continuation of this work (Article 81 of the Labor Code). The law does not establish a circle of persons subject to dismissal under paragraph 8 of Art. 81 TK. An approximate list of such persons is given in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992. These are the teachers educational institutions, masters of industrial training, educators of children's institutions and other persons performing educational functions. In a broad sense, an immoral offense is an act that violates the moral foundations of society. An immoral offense is a guilty action (inaction) that violates the basic moral standards society and contrary to the content of the service-labor function and thereby discrediting the service-educational, official powers of the relevant circle of persons.

For the dismissal of employees under paragraph 8 of Art. 81 of the Labor Code does not require the repeated commission of immoral offenses. An employment contract can also be terminated for a single immoral offense. Dismissal on the specified grounds (as well as under paragraph 7 of Article 81 of the Labor Code) is now a disciplinary measure, and therefore it complies with specific deadlines (Article 183 of the Labor Code), during which an employee performing educational functions can be dismissed from work . 2.9. Clause 9. Acceptance of the groundlessness of the decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization (Article 81 of the Labor Code). This paragraph concerns three categories of workers; heads of organizations (heads of branches and representative offices), their deputies and chief accountants of organizations. Consequently, a special subject acts on this basis for dismissal, since other employees cannot be dismissed under paragraph 9 of Art. 81 TK. If the adoption of an unreasonable decision did not entail the consequences indicated in paragraph 9, then there are no grounds for the dismissal of the persons listed above. It should be borne in mind that an unreasonable decision must be specific.

2.10. Clause 10. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (Article 81TK).

Heads of branches and representative offices are appointed by the legal entity - the founder and act under his power of attorney. Paragraph 10 of Art. 81 of the Labor Code applies only to the heads of organizations, structural divisions and to their deputies.

Such an increased responsibility of this category of persons is due to their special legal status. They occupy positions in the management of production and labor, associated with power-administrative powers and with a special character. official functions. One gross violation by the head of the organization or his deputy of official duties can cause great harm the entire organization.

Paragraph 10 of Art. 81 of the Labor Code does not apply to employees who are subject to charters and discipline regulations, since the latter provide for specific misconduct for which employees can be dismissed. In such cases, reference is made to the article of the charter on discipline, and not to this paragraph, since it applies only to the heads of organizations (their separate subdivisions) and their deputies.

2.11. Clause 11. Submission by the employee to the employer of forged documents or knowingly false information when concluding an employment contract (Article 81 of the Labor Code).

This paragraph filled a gap that existed in the previous Labor Code. The employer is obliged to prove the deliberate falsity of the documents or information submitted by the employee when hiring. It seems that he must also substantiate that false information may affect the work of this person. For example, if a woman, exhausted by unemployment, hid when applying for a job that she had a young daughter, then it would hardly be fair to fire her for this.

2.12. Clause 12. Termination of access to state secrets, if the work performed requires access to state secrets (Article 81 of the Labor Code).
According to the previous legislation (clause 2 of article 33 of the Labor Code), the employment contract in this case was terminated due to the employee’s inconsistency with the position held or the work performed, while maintaining certain guarantees (during transfer, payment of severance pay, etc.), which is not provided for in clause 12 Art. 81 TK.

2.13. Clause 13. Termination of the employment contract in cases provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization (Article 81 of the Labor Code).

The previous Code of Labor Laws (clause 4, article 254) provided for such a basis only for the head of the organization. The Labor Code supplemented it with members of the collegial executive body of the organization. At the same time, this ground for dismissal is called in the order and work book of the head with reference to paragraph 13 of Art. 81 of the Labor Code and the relevant paragraph of his employment contract, indicating the specific reasons for this dismissal.

2.14. Clause 14. (Article 81 of the Labor Code).
Reference - it provides for the termination of the employment contract at the initiative of the employer in other cases established by the Labor Code and other federal laws.

In such cases, these grounds are not indicated with reference to paragraph 14 of Art. 81 of the Labor Code, but on the norm of the Labor Code or a specific law providing for such a basis.

In chapter
XII
TC for some workers other additional grounds for their dismissal are provided. Yes, Art. 278 of the Labor Code indicates two new additional grounds for terminating an employment contract with the head of the organization;

1) in connection with the dismissal of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);

2) in connection with the adoption authorized body legal entity or by the owner of the property of the organization, or by the person (body) authorized by the owner of the decision on the early termination of the employment contract. With this ground for early dismissal of the manager in the absence of his guilty actions (inaction), he is paid compensation for the early termination of the employment contract with him in the amount determined by the employment contract. (Article 279 of the Labor Code).

The head of the organization himself has the right to terminate the employment contract ahead of schedule by notifying the employer in writing no later than one month in advance. With the head of the organization in accordance with Art. 275 of the Labor Code, an employment contract is always concluded for a period established founding documents organization or by agreement of the parties.

An employee who works for an employer individual and also a homemaker may be dismissed on the grounds provided for in the employment contract (Articles 307, 312 of the Labor Code). The severance pay upon dismissal of these employees and the warning period are established by the employment contract. The same applies to employees. religious organizations(Article 347 of the Labor Code).

Task

When compiling the annual report, the economist Krylova admitted blunder, for which she was dismissed by the employer under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation. Krylova appealed the dismissal to the court, citing in the statement of claim that she had been working in this organization for about 5 years, had been repeatedly awarded and had gratitude for Good work, and the mistake was made by her for the first time. Under what conditions is dismissal allowed under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation? What decision will the court make in this case?

According to paragraph 3-b of Art. 81 dismissal is lawful if the employee is found to be inconsistent with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification. At the same time, insufficient qualifications should be established on the basis of objective data obtained as a result of the employee's certification.

Certification is mandatory; for this purpose, a
certifying commission. The procedure and conditions for the certification are determined by the relevant regulation approved by the head of the organization, if, with respect to a particular category of employees, special regulatory legal acts There are no specific terms and conditions.

Dismissal is allowed, in accordance with part 2 of article 81, if it is impossible to transfer the employee with his consent to another job. Without compliance with this condition, the dismissal cannot be recognized as legal.

For the dismissal on this basis of an employee who is a member of a trade union, a reasoned opinion of the relevant elected trade union body is also required. According to article 82 of the Labor Code: Upon dismissal of employees who are members of a trade union, during certification to the composition of the certification commission in without fail a member of the commission from the relevant elected trade union body is included.

Based on the conditions of the problem, certification was not carried out. In this case, the dismissal will be declared illegal by the court and Krylova will be reinstated at her former place of work. If we assume that Krylova was a member of a trade union, then it was also necessary to obtain a reasoned opinion from the trade union body on her dismissal. This, apparently, was not done either.

On the basis of Article 394 of the Labor Code, Krylova must be reinstated in her previous job. Krylova must pay the average earnings for the entire time of forced absenteeism. If the incorrect wording of the reason for dismissal prevented Krylova from entering another job, then the court will decide on the payment of Krylova's average earnings for the entire time of forced absenteeism. The court, at the request of Krylova, may also decide on compensation monetary compensation moral damage caused illegal dismissal. At the request of Krylova, the wording of the grounds for dismissal may be changed to dismissal of her own free will (if Krylova has no desire to be reinstated in her previous job). According to Article 396 of the Labor Code, the decision to reinstate the illegally dismissed Krylova at work is subject to immediate execution. If the employer delays the execution of such a decision, the court will issue a ruling on the payment of Krylova for the entire time of the delay in the execution of the decision of average earnings.

Test : Does an employer have the right to temporarily transfer an employee to a job that requires lower qualifications?

Choose the correct answer: a) yes, he has the right to translate in all cases; b) such a transfer is illegal; c) may, but only with the written consent of the employee.

in) can, but only with the written consent of the employee.
An employee can be transferred to work requiring lower qualifications only with his written consent (according to part 3 of article 74 of the Labor Code). If the work of the employee's qualifications corresponds, his consent to a temporary transfer is not required.