If a person does not cope with his duties. How to fire an unscrupulous employee without fear of litigation. Case Study

1) The employee does not cope with the work. This is the most common reason. If the employee “does not pull”, and the manager does not take active actions in this situation, then the rest have a question: “Why can he work badly? So can I do it too?" A person is so arranged that from such thoughts his character deteriorates sharply. So, both productivity and efficiency go down. After all, people see everything, you can’t deceive them, you can’t hide anything from them. Therefore, it is necessary to take action quickly. If one of the employees does not perform well, dismissal is the best way to teach the rest to work well.

2) Gross violation. For example, furniture assemblers, while fulfilling an order, complained to the client about how little they were paid. The client, a compassionate woman, wrote in the act: "Add salary." Instead, the director at the general meeting reprimanded the collectors and deprived them of the bonus. The workers got offended and quit. Nobody began to hold them.

3) Poor communication with customers. Is rude to customers, does not fulfill promises, does not follow the standards established by the company, shows increased stupidity. You need to get rid of such an employee at the speed of light. It scares customers away from your organization - it blocks the channels with money, diverts money from your cash register. Until you run aground tightly, make a decision quickly, do not pull.

4) Relations with the authorities did not work out. Subtle moment. The boss needs to analyze - what is the reason for this? How often does this happen? Getting fired because of personal dislike is a sign of weakness. On the one hand, there are no accidents in our life: if you met this person, it means that you need to learn a certain lesson, and as a rule, you will not solve this issue by dismissal. A particularly sad situation is when you have to part with a valuable smart employee because of the boss's ambition. Or a specialist is smarter and stronger - the boss simply cannot cope with him. The low level of leadership competence is the problem of the organization. If the desire to get rid of an objectionable employee arises regularly, fire the boss. On the other hand, there are antagonist people - they are not shown to work together, do not expect good from their union. In this case, it is better to leave, and not torturing each other.

5) The employee negatively affects the team. People say: "One bad sheep will spoil the whole herd." The worst thing is that sometimes this pest is not visible. However, he must be urgently located and decapitated - fired. Some employees complain, sow negativity and pessimism, others provoke conflicts, others set colleagues against each other or against superiors. Often these provocations occur in the smoking room, so, if possible, try to stop frequent smoke breaks. Another reason: a person is underloaded - when there is a lot of work, there is no time to mischief. One thing is important - a person does not work himself and interferes with the work of others. He may be an excellent specialist, but the result of his actions will be devastating. Take action - increase the workload of all employees and fire the pest. If a person is a squabbler by nature, he should leave.

6) The employee does not fit into the corporate culture, does not fit into the team. The situation is quite rare, however, for a number of companies it is very relevant. If the company has a strong corporate culture, then the employees even outwardly resemble each other. This happens in happy families: when spouses live together soul to soul for a long time, their faces acquire similar features. There is such a thing - "not our man." If the company is close-knit, then it is immediately visible, and most likely he will leave - he himself will be uncomfortable. In life, everything is usually more complicated and often you have to make a difficult decision. For example, an employee is result-oriented, gets along with customers, and provides the company with good volume. However, he is not a team player. And that's the problem. If at the same time he takes a leadership position, the situation escalates: for example, he is loyal, moves the company forward, but people cannot work with him, and this will destroy the organization from the inside. This employee must leave.

7) The employee has reached his level of competence, he cannot grow further. If the company is actively developing, employees must keep up with its pace. Therefore, it is important to include in the work technology some principles that will allow weak employees to leave on their own, painlessly for the company. For example, enter professional levels. Wages at each next level are significantly higher than at the previous one. If a person does not grow, they do not level up. This means that his salary is falling compared to inflation. Therefore, those who could not move to another level will quit themselves. And it is right. Otherwise, the manager will have to fire such an employee.

8) The employee worked out, got tired. It happens to everyone. If the employee is valuable, then it is important to prevent a crisis - it is always easier to prevent a disease than to treat it. If a critical moment is overlooked, it is important to give the employee a break, change the type of activity, and inspire him with a new project. Sometimes fatigue and apathy can be associated with a failed project. Then you need to inhale confidence and fresh strength. If an employee has burned out and there is no hope for a new outbreak, let him go. Help him find the strength to quit. He is no longer on the road with you.

It's hard to fire, so this decision is often delayed

Managers recognize that delaying a layoff is always worse for both the employee and the organization. This has a bad effect on the team. In the end, you still have to fire, but this happens much later than necessary.

Similar stories were told by the manager of a large wholesale company selling sanitary ware in Russia and the chief accountant of a commercial institute: “When our director realizes that a certain employee needs to be fired, for some reason he puts off this moment. He admits: "Ivanov is not pulling, he should be replaced," but he does not make a decision. Something is waiting. For example: “Or maybe he will quit or improve himself.” Although it is already clear that efforts to re-educate do not bring results, but hope dies last: maybe everything will work out by itself. As a rule, there is no improvement, the negative situation becomes protracted.

Here's a more embarrassing story. A specialist from an audit firm shared his observations: “When our director is not satisfied with some employee, she, perhaps not realizing her actions, creates impossible conditions for him to work instead of simply parting with him.”

Why does the manager postpone the dismissal of a negligent employee?

• He understands that it is difficult to quickly find a replacement.
• Regrets the time spent searching and selecting an employee.
• Does not want to re-teach, the training system is unnecessarily time-consuming, in terms of investment of effort and money.
• Afraid to appear tough.
• Trying to find another use for it.
• Afraid of turnover.
• Does not want to set a precedent in the company when employees change frequently.
• Too lazy to fire an employee is a job, moreover, extremely unpleasant.
• Feelings of guilt, pity.
• Because of the fear of the legal aspects of dismissal, the law is on the side of the employee and it is not easy to dismiss under the article: it is necessary to prepare documents, timely record in writing the failure to comply with instructions, job descriptions.

Of course, these reasons are understandable, however, they can be reduced to one: the manager does not want to do extra work. But the longer you wait, the more problems accumulate. Therefore, it is useful to introduce certain mechanisms that formalize this task and simplify decision making.

How to fire an employee who does not do his job?

If you are in doubt whether to fire an employee or not, try this method. Give him one last chance. Formulate a specific task, the results of which can be measured. Set a clear deadline. Choose a form of written control, draw up a reporting form, where the employee will enter the results daily. The task should be short enough - for a week, a maximum of two. Designate a daily norm, or specific daily tasks that need to be completed. For example, find three clients in two weeks, while making 30 calls and five meetings every day. This will allow the employee to see his own results and ... quit. Or stay to work normally.

The method is cruel. On the one hand, he keeps the employee under pressure every day. On the other hand, the method is humane because it trains the employee. Perhaps you did not explain something, did not organize the work, so there is no result. These two weeks will show everything. There are times when an employee tries for two weeks, and then, when there is no such strict control, he again sits down “on the ass”. Therefore, after the end of the experiment, set benchmarks and check them regularly. In the event of a relapse, do not delay. You no longer have a choice.

Important: if an employee did not cope with the task, did not reach even 0.01 percent, he must be fired. This will be a good lesson for the manager - do not hire the wrong employee, do not set unrealistic tasks, keep your word. This simplifies the situation: after all, the decision no longer needs to be made. There can be only one result - either he did it and then he stays, or he didn't do it, and then he leaves.

What to say to an employee when leaving?

Be brief. No need to torture yourself or the person. Thank you for your work. Here is an example text: “Victor, you better look for another job where you can better reveal yourself. Thank you very much for your work." Sometimes an employee begins to balk and ask: “What exactly am I not suitable for? I'll fix it. Give me a chance, I didn't have much time." It is important not to enter into discussions, but to end the conversation, to make it clear that your decision is final and not subject to discussion.

In a well-built business, negligent employees quit themselves

They are fired not by the head, but by the business itself. Experience shows that layoffs are difficult. Moreover, if the company does not have a filter that encourages a weak employee to quit or improve, then this leads to the loss of good employees. Therefore, it is necessary to build management mechanisms that will solve this problem. It is important to set these filters not too hard and not too soft, so that, on the one hand, they do not provoke turnover, and on the other hand, they do not allow lazy people to relax.

The first filter is the trial period. It is provided for by the Labor Code of the Russian Federation , during which the manager has the right to dismiss the employee without giving reasons. And the employee himself knows about it. Therefore, it is easiest for a manager to fire an employee before the end of the probationary period, and many people take advantage of this opportunity. The most common reason for dismissal at this moment is the passivity of the employee. The leader argues as follows: “If now a person did not want or could not show himself, what will happen next! ..”.

The second filter is the salary model. For example, active sales managers have a small salary and a high percentage. They earn their salary by activity and skill. Inefficient salespeople quit themselves because they can't make money for themselves or the company, which means the company doesn't need them. The employer is interested in the fact that the bad seller left. Another example I gave above is salary by professional levels. The result is the same: the strong grow and stay in the company, the weak leave because the salary does not grow.

The third filter is the selection system. It should be built in such a way that unnecessary employees do not get into the company, they are eliminated at the selection stage. Filters for the dismissal of the weak should correlate with the selection system so that the weak are not taken immediately, it will be easier for everyone: the staff, the manager. This will save a lot of time and effort for the organization.

The fourth filter is the reward and penalty system. In the example of furniture assemblers who complained to customers about low wages, reprimanding and forfeiting bonuses works as a filter for dismissing unscrupulous employees.

Dismissal is a small death. If it is impossible to avoid it, do it quickly, competently and on time. Remember, a layoff should work for the good of your organization and move it forward. This will happen if you follow our recommendations.

The article was first published on Executive.ru on October 23, 2007 under the heading "Creativity without cuts". Re-announced in the content block as part ofspecial project editions

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An analysis of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), namely Chapter 13 “Termination of an employment contract”, shows that an employer can take the initiative to dismiss an employee in a fairly limited number of cases (Articles 71, 81, 278 of the Labor Code of the Russian Federation). But basically, the termination of an employment relationship without the will of the employee is impossible. In this regard, opinions are often expressed that employers are unreasonably infringed on their right to dismiss an employee they “do not like”. However, the subjective criterion in assessing the personality, and not the work of an employee and his business qualities, is purely discriminatory. Moreover, the employer, as a stronger side of labor relations, has all the tools to motivate and stimulate the employee.

Consider the full set of grounds for dismissal of an employee, which an employer may try to use if he wants to get rid of an objectionable "frame".

"At will"

In practice, most often employees are forced to resign at their own request (clause 3, article 77, article 80 of the Labor Code of the Russian Federation). For this, various methods are used: from psychological pressure to the imposition of unreasonable disciplinary sanctions with the threat of dismissal "under the article" in case of disagreement "to quit in an amicable way." Let's leave out the ethical and professional aspect and analyze the legal component of such actions.

As explained by the Plenum of the Supreme Court of the Russian Federation in its resolution dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, termination of an employment contract at the initiative of an employee is permissible in the case when filing a letter of resignation was exclusively his voluntary expression of will. If the plaintiff claims that the employer forced him to file a letter of resignation of his own free will, then this circumstance is subject to verification and the obligation to prove it rests with the employee. Most often, when considering this category of cases, eyewitness testimony is used as evidence of a forced expression of will.

Judicial practice in such cases is quite extensive, and in most cases cases are decided in favor of the employee. Therefore, employers create situations that would allow them to terminate the employment contract at the initiative of the employer.

Worker test

First of all, we are talking about dismissal due to an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation). In order for the dismissal under Article 71 of the Labor Code of the Russian Federation to be lawful, the employer is obliged, during the probationary period, to record the intermediate results of the employee’s work, issue periodically control tasks, and evaluate them.

In practice, many employers are sure that during the probationary period they are given the opportunity to terminate the employment relationship with the employee at any time, formally citing failure to pass the test. In this case, in the absence of documents substantiating the unsatisfactory result of the test, the forecast for the restoration of the employee is very likely when he files a corresponding claim.

Sometimes there are curious cases when employers recognize an employee who has not passed the test, who was repeatedly awarded for high performance in labor and who was thanked during the test.

"According to the article"

As for Article 81 of the Labor Code of the Russian Federation, attention should be paid to the most common grounds that an employer is trying to apply to dismiss an employee who does not agree to leave his job.

Of course, it is unlikely that in order to terminate labor relations with an employee, an employer will decide to liquidate an organization or terminate activities as an individual entrepreneur (clause 1, article 81 of the Labor Code of the Russian Federation). It seems that the change of the owner of the property (clause 4 of article 81 of the Labor Code of the Russian Federation) will also not be carried out in order to dismiss an employee who does not suit the employer, therefore this ground will not be considered.

However, a reduction in the number or staff of employees is used very often for this (clause 2, article 82 of the Labor Code of the Russian Federation).

Reduction

Employers should keep in mind that such a solution to the issue seems successful only at first glance. First, the reduction entails significant financial costs in the form of severance pay (Article 178 of the Labor Code of the Russian Federation). Secondly, the reduction involves the implementation of a rather complicated procedure (Articles 179, 180 of the Labor Code of the Russian Federation), including the observance of the employee's right to apply for a vacant position in this organization. Thirdly, it is necessary to take into account the requirement of the real nature of the reduction. This means that positions being cut should not be reintroduced.

Note that the employer can introduce new positions into the staffing list both simultaneously with notifying the employee about the reduction, and after his dismissal, if this does not detract from the real nature of the reduction being made. If the position introduced after the dismissal of the employee is similar to the reduced position, then in the event of a lawsuit, the court will unambiguously reinstate the employee.

Job inconsistency

In order to dismiss an employee due to inconsistency with the position held or the work performed due to insufficient qualifications, a special procedure is required - certification (clause 3 of article 81 of the Labor Code of the Russian Federation). At the same time, few people realize how laborious and costly this procedure is.

First of all, in order to conduct certification, the organization must have a Regulation on certification, which determines which categories of employees, with what frequency and in what forms are certified for compliance with the position held. The employer adopts this Regulation independently, on the basis of Article 8 of the Labor Code of the Russian Federation. The employee must be familiarized with the Regulation against signature. It is also desirable that in the employment contract there is a reference to this Regulation.

The tested employee will not be able to challenge the results of the certification if it was carried out by the forces of involved specialists, whose opinion will be as objective as possible. And only upon receipt of the conclusion of the certification commission, which will reflect the relevant conclusions about the insufficient qualifications of this employee, the employer will have the right to terminate the employment contract with the employee under paragraph 3 of Article 81 of the Labor Code of the Russian Federation. However, the employer must first offer the employee another job (both a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or a lower-paid job), which the employee can perform taking into account his state of health (Article 81 of the Labor Code of the Russian Federation).

Arbitrary certification without the presence of the relevant Regulations, or in relation to only one specific employee, or in violation of the terms and procedures will be illegal. In these cases, it is very likely that a legal dispute will arise with the employee and, most likely, the case will be resolved in his favor.

Non-fulfillment of labor duties

Special attention should be paid to dismissal for repeated non-performance by an employee without good reason of labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

Dismissal under this paragraph is a dismissal in the manner of imposing a disciplinary sanction (Articles 192, 193 of the Labor Code of the Russian Federation). And this is where the most mistakes are made.

First, the employee is often punished for failure to perform those duties that were not covered by his employment contract. For example, a legal adviser got a job at the head office of a holding company with 30 employees to provide legal support for its activities. A highly qualified employee coped with this volume of official duties successfully and in a timely manner, therefore he had the opportunity to often take smoke breaks, conduct conversations on his mobile phone, and so on. In this regard, employers often conclude that the employee needs to be "loaded" with work, since during the "paid" time he does not have the right to be distracted by something other than work. Therefore, the employee is unilaterally obliged to engage in, for example, legal services for the branch network. In this case, neither the obligation to standardize labor, nor the requirement of Article 60.2 of the Labor Code of the Russian Federation on the establishment of additional payments are often taken into account. Naturally, the employee ceases to cope with an unreasonably high volume of work, in connection with which they begin to impose disciplinary sanctions on him and, in the end, are fired. If such an employee goes to court, he can easily prove that the employer forced him to perform work that was not stipulated by the employment contract, respectively, there can be no question of violation of official duties established by the employment contract. Therefore, the court recognizes the illegality of the disciplinary sanction in the form of dismissal.

Secondly, sometimes punishment follows a violation of duties that under no circumstances are labor duties, for example, for violation of the Code of Corporate Ethics and the Dress Code Regulation. These internal acts of the employer are not local regulations (Article 8 of the Labor Code of the Russian Federation) and do not contain labor law norms that are mandatory for execution. In such cases, only the impact of informal methods developed with the help of HR management is acceptable.

Such circumstances will be the basis for recognizing orders to impose penalties as illegal, respectively, the sign of “repeated punishment” necessary for dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation will be lost.

Absenteeism

“Popular” is also the dismissal of an employee for absenteeism (subparagraph a, paragraph 6, article 81 of the Labor Code of the Russian Federation). Most often, the employer recognizes absenteeism as a completely legitimate absence from work, for example, when an employee took time off from work, and did it orally.

In order to "leave" the employee, false acts of absenteeism, memoranda and other documents are also drawn up. Of course, it is very difficult for an employee in such circumstances to prove his case, but the employer must understand that such acts are criminally punishable.

Noteworthy in this regard is one of the cases considered by the Supreme Court of the Russian Federation. Thus, the head of the cash settlement center (RCC) was found guilty of falsifying evidence in a civil case pending in the district court, on the claim of a group of employees against the RCC for reinstatement and recovery of wages for the time of forced absenteeism. In order to “win the case”, he prepared and submitted to the court through his representative, a lawyer, falsified documents: photocopies of four fictitious letters dated July 15, 1994. The servants of Themis condemned the “great schemer” under paragraph 1 of Article 303 of the Criminal Code of the Russian Federation.

Drunk

Almost the same can be said about the dismissal under subparagraph b of paragraph 6 of Article 81 of the Labor Code of the Russian Federation for the appearance of an employee at work in a state of alcoholic, narcotic or other toxic intoxication. If such intoxication was not in reality, then all the acts drawn up will be forged.

Thus, it is practically impossible to dismiss a qualified employee who properly performs his duties at the initiative of the employer (of course, with the exception of the dismissal of the head of a legal entity under paragraph 2 of article 278 of the Labor Code of the Russian Federation).

Agreement of the parties

If the employer really wants to fire the employee, then the only way in such a situation is to agree on conditions acceptable to all parties for terminating the employment relationship in accordance with paragraph 1 of Article 77 and in accordance with Article 78 of the Labor Code of the Russian Federation. These norms require the signing of an additional agreement (see Example 1) to the existing employment contract, which determines the date of its termination (Article 78 of the Labor Code of the Russian Federation).

It should be borne in mind that the employee must necessarily agree to quit on this basis. Otherwise, he will simply refuse to sign an additional agreement. Therefore, such an additional agreement very often includes a clause on the payment of compensation to the employee.

Note that the legislation does not provide for the mandatory compensation upon termination of the employment contract under paragraph 1 of Article 77 of the Labor Code of the Russian Federation. This condition should be established by agreement of the parties, however, it is clear that a conscientious employee has the right to count on certain benefits for himself. Although this is precisely what is an obstacle for the employer to enter into the contractual process.

Many managers believe that giving in to an employee is the loss of a certain amount of authority. Such a psychology is very destructive for a manager. But upon dismissal by agreement of the parties, and even more so upon dismissal, accompanied by the payment of "compensation", the employee will not have a chance to be restored to his former place of work by going to court. Judicial practice in this category of cases is very convincing evidence of this. The only “hook” in this case is a violation of documentation, but it is doubtful that an employee who received an amount that suits him upon dismissal will initiate legal proceedings.

At the same time, employers need to know all the nuances of dismissal by agreement of the parties.

Claiming an application for this is absolutely not required, since the parties sign a bilateral document - an additional agreement. In practice, there are violations of the following nature: in the order to dismiss an employee, “the agreement of the parties, clause 1 of Art. 78 of the Labor Code of the Russian Federation”, although there is a reference to the employee’s statement as a documentary basis. This is a mistake. In fact, the agreement of the parties as such does not occur under such circumstances, but there is a dismissal of one's own free will with an incorrect reference to a paragraph of the Labor Code. The documentary and normative grounds for issuing an order must correspond to each other. Therefore, in the order for dismissal by agreement of the parties, only an additional agreement should be referred to.

Sometimes they mistakenly believe that the agreement of the parties can be drawn up as a statement from the employee, followed by the resolution of the representative of the employer on it. The arguments are given as follows: since the text of the document shows the will of both parties to terminate the employment relationship on this basis (clause 1 of article 77 of the Labor Code of the Russian Federation), the form of such a document has no legal significance. This is the wrong point of view. The statement of the employee, in fact, is a unilateral act of will, therefore, labor legislation provides for the possibility of withdrawing the application by the employee.

Any document mediating the mutual, counter will of the parties is drawn up as an agreement or an addition (annex) to it. No wonder the legislator refused to conclude an employment contract "at the request of the employee" and obliged to conclude employment contracts in writing, in the form of a separate document (this rule was introduced in the Labor Code by the Law of the Russian Federation of September 25, 1992 No. 3543-1).

A bilateral document signed by the parties can no longer be unilaterally withdrawn, its cancellation must also be carried out by agreement of the parties (see clause 20 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”) . Therefore, if the employee put his signature under such a document, the employer can be sure that on a certain date the employment contract with the employee will be guaranteed to be terminated.

Thus, dismissal by agreement of the parties is an effective tool for a civilized separation of the employee and the employer based on psychological incompatibility. And the use of this tool should be provided by qualified specialists of the personnel service and the personnel service, helping to reach a compromise in a difficult managerial situation.

1 Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation of December 18, 1997 (Bulletin of the Supreme Court of the Russian Federation, 1998, No. 10).

“Exclusively business environment of the office! Satisfied and absolutely professional employees (the main capital of the company) are diligently working on the tasks set! Sales are steadily going up!” - the dream and goal of any employer. Alas, in real life this is often not the case: fixed capital is becoming more expensive every day, and the return on it does not always justify the time and money invested. What to do if employee unable to do their job?

Before moving on to answering this question and prescribing treatment, let's try to establish a diagnosis and find out the causes. With all the variety of reasons why an employee does not cope with his duties, all of them can be reduced to three main ones:

1. Can't;
2. Does not want;
3. And he wants and knows how, but ...

Each of these reasons has different manifestations. The employer can take adequate actions only after finding out the cause and taking into account the manifestations. Let's look at the reasons and find solutions to the issue:

If an employee fails to perform his duties because he does not know how to

“If you don’t know how, we will teach!” says folk wisdom. And you have to start learning right away. One of the reasons for the “inability” of employees may be the lack of adaptive training for an employee upon entering a job. The procedure for training when hiring, introducing it into the company includes three types of adaptation:

• organizational (familiarization with the structure of the company, with their workplace, conducting safety briefings, explaining corporate rules);
• professional (acquaintance with the job description, training in technologies and methods of work performance);
• socio-psychological (introduction of a beginner to colleagues, "School of a beginner", fixing a mentor).

High-quality adaptation allows an employee to quickly acquire the necessary work skills, get used to the specifics, undergo socialization and feel confident and comfortable in their workplace. This is the key to the success of the employee in the future. Therefore, it is important to develop adaptation programs for new employees in the company: general - for all employees (organizational and socio-psychological adaptation) and individual - by position (professional adaptation).

The second reason for "inability" lies in the psychological characteristics of the employee's personality. For example, the low intellectual lability of an employee does not allow you to quickly "grasp" information and master skills in the allotted time. For such employees, more time is needed for training. If an employee does not remember well, i.e. he has a small amount of RAM, then constant or periodic briefings at the workplace are required.

Mass "inability" of employees may be temporary in the period of introduction of any innovations in the work. For example, a company has installed new software and employees have not had time to master it yet. In such cases, the project plan must include time for testing and training of employees. As the least expensive and most productive option, you can use the training of a group of the most advanced employees, and then use them as mentors to train other employees. And to consolidate skills, we introduce prescribed standards for the performance of work and special checklists for fixing new actions.

If an employee fails to perform his duties because he does not want to

Behavioral manifestations of unwillingness to work will be as follows: defiant ignoring, quiet sabotage, or creating the appearance of "violent activity." Depending on the manifestations, there are different solutions.

So, if the employee does not hide his unwillingness to work and openly ignores the orders of the head and the requirements of job descriptions. As a rule, such behavior can be demonstrated by a specialist who has been working in the company for a long time, has reached a certain level and has reasonable (from his point of view) requirements and claims to the company and management. For example: the only programmer of the company who writes unique software and would like to work in a free schedule. Such employees know what they want, for the most part they can correctly assess the capabilities of the company and are ready for a compromise. The correct solution in this case would be an open clarification of the reasons. Having found out the reasons, the manager must correlate the level of value of the employee and his claims. If this is an extremely valuable employee for the company, who has specific knowledge, skills and abilities, and his requirements are within the capabilities of the company and do not affect the work of other employees, then it would be reasonable to create conditions for his further productive work and thereby “close the topic”. However, it would not be superfluous to point out to the employee that the demonstrative behavior of his behavior is inappropriate, and may have a negative impact on other employees and warn that a repeated situation will lead to the termination of the employment contract. By the way, in this case, the employer should take care of the alternatives in advance so as not to become a puppet in the hands of the manipulator and ask the dissatisfied employee to write a letter of resignation when they re-enter.

The second manifestation of an employee who does not want to work is quiet sabotage. Such an employee is difficult to identify, since his actions are not of a clearly demonstrative nature, he is a “quiet subversive”. He prefers not to speak openly, but to "sow discontent and indignation" in the minds and hearts of his colleagues. You are unlikely to be able to call him to an open conversation. Most likely, he will stare at you with a “naive, incomprehensible” look and to direct questions from your side, the only answer will be “I have no idea what you are talking about ...” Finding out the relationship with such an employee cannot be a method, because it will not bring anything. The only reasonable way out would be to part with such an employee in the shortest possible time.

Another variety from the category “I can, but I don’t want to” is employees who, with complete inactivity, create the appearance of “violent activity”. The reasons for such destructive behavior can be both the personal qualities of the employee himself, and fatigue from work. For example, an employee who has been working in a company for a long time, who knows his job perfectly and is able to complete it in a short time, most of the time can create the appearance of work without a specific result useful for the company. You will treat such an employee with great respect, observing his diligence and constant employment. You will prefer to give an urgent task to an efficient newcomer, so as not to distract from the "serious work" of such a valuable employee. But it is worth analyzing the effectiveness of the work of the "diligent" and you will inevitably be disappointed. Here, the recommendation for employers could be this: pay for a specific result, and not for hours spent uselessly in the office. However, it is easy to give such advice, but sometimes it is simply impossible to put it into practice. As a solution: delegate new tasks to such an employee and, most importantly, control both the result and the deadlines. When assigning a task, discuss with the employee what specific result and by what time frame you want to receive. A new task will awaken interest and help the employee get less tired. And control on your part will force the employee to mobilize and clearly organize his work.

If an employee wants and knows how, but ...

Sometimes it happens like this: a professional employee with high motivation (ie, able and willing to work) comes to the company. And the company cannot provide the employee with normal working conditions. “Lack of normal working conditions” is a subjective concept, determined on the one hand by the level of expectations and claims of the employee; on the other hand, the company's capabilities. For some, only the absence of elementary conditions is considered abnormal: heat, food, hygiene, etc. For the majority, high workload, low wages and lack of support (computer, office equipment, software, transport, mail, etc.) are considered abnormal. Other employees regard the lack of professional and career growth as the absence of normal working conditions. In general, the concept of “normal working conditions” may be different for the employee and the employer. Therefore, it is important to agree on everything “ashore”. When conducting a job interview, give the candidate full and objective information about the company and find out the full extent of his expectations. In case of discrepancy between the capabilities of the company and the expectations of the employee, it is better to refuse the candidate.

Another common reason that a “knowing, able and willing” employee suddenly loses his productivity; there may be constant distractions from work. For example, such as smoking breaks, tea parties, the Internet and computer games, monitoring your family members by phone, talking with friends and colleagues. There is only one way out: to nullify or at least minimize distracting moments from work. It is necessary to start at the stage of hiring an employee: stipulate that the time from 9.00 to 18.00 is bought by the employer and during this period only from 13.00 to 14.00 hours the employee can do his own business. To regulate the time of tea drinking and smoking breaks, two 15-minute technical breaks can be introduced during the working day, for example, at 11.00 and 16.00. The Internet can be turned off or limited. Computer games are prohibited by company rules. Dealing with personal matters during working hours (frequent requests) can be minimized by introducing pre-agreed free days in companies for certain categories of employees (for example: managers, best employees of the month, birthdays).

Troubles at home or conflicts in the team can also distract an employee from work and absorb his thoughts. Here already adequate measures are chosen depending on the situation.

In conclusion, 5 useful tips for employers:

1. Create normal working conditions and take care of a comfortable psychological climate.

2. Develop a competent program of adaptation training for a new employee and devote enough time to this training, then use mentoring programs.

3. When introducing innovations, include in the project plan the training of employees and allocate time for this.

4. Clearly set tasks: what to do and by when? What is considered a good result? And control the result and timing.

5. Regulate the time of work and rest during the working day (for example: 11.00-11.15 - break; 13.00-14.00 - lunch; 16.00-16.15 - break)

If items 1-5 are fulfilled on the part of the company, and the employee is still unable to cope with the work, part with the employee. It is better to spend time on its “rework” more productively on finding and training a more effective employee.

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Stanislav Sazonov

What are the dangers of layoffs?

Termination of an employee can have negative consequences for you as an employer.

1. Even if the employee is fired legally, but complains to the labor inspectorate, and when checking the correctness of the dismissal, they find errors in the preparation of employment documents (orders, work book, and so on), a fine will be imposed:

• for you as an individual entrepreneur - from 1000 to 5000 rubles; from 5,000 to 10,000 rubles for the absence of an employment contract or for errors in it;

• for you as a director of an LLC (PJSC, CJSC, SUE, MUP) - from 1,000 to 5,000 rubles; from 10 thousand to 20 thousand rubles for the absence of an employment contract or for errors in it;

• for you as a legal entity - from 30 thousand to 50 thousand rubles for errors in documents; from 50 thousand to 100 thousand rubles for the absence of an employment contract or for errors in it.

Moreover, fines on the director of the company and on the company can be imposed simultaneously.

That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the absence of an employment contract: a fine of 20 thousand for the director and 100 thousand rubles for the LLC.

2. If an employee is illegally fired, a demand may also follow to reinstate him at work, pay wages for the time of forced absenteeism, pay legal costs and, as a rule, compensate for moral damage. Recovery is carried out only by court order.

3. If the salary was paid "in an envelope" or the employee was not formalized, he can file a complaint. If the information is confirmed and goes to the tax service, the Pension Fund and the Social Insurance Fund, then you will be charged additional taxes, insurance premiums, and also fined.

Consider how to avoid the second situation.

Dismissal: 80% psychology and 20% law

How to gently push the employee to voluntarily terminate the employment contract? In dismissal, in addition to legal nuances, there are also psychological ones. And sometimes psychological even have priority.

A person, due to various circumstances, may begin to cope poorly with his work. You can give him a warning, talk to him, but if nothing changes, then you need to fire him.

As practice shows, if your employment contract clearly spells out the duties of an employee, but he clearly does not cope with them (for example, the sales manager does not fulfill the plan, violates the technology of working with clients - coordinates accounts for a long time, violates the stages of sales, negotiates with those persons), then there are no disputes and conflicts.

The most important thing here is that everything is clearly spelled out in the employment contract and that you have discussed everything in advance before signing it.

It is understatement and unrealistic expectations that are the main causes of conflicts.

The employer thinks: “It seemed to me that everything was super, he understood everything, he will work the way I need. But he breaks deals, he doesn’t know how to communicate with clients, who called, doesn’t remember, doesn’t write down contacts, says “Hello” on the phone, but he should say: “ABV company, Ivan Ivanov, good afternoon” ... Well, my!

The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, I would work 24 hours a day, three times four hours a day, but in reality it came out only 30 thousand rubles, and I had to work seven days a week and for 10 hours ...”.

You need to pronounce the conditions without embellishment, but as they are. Many employers like to embellish or, on controversial issues, say: “Start working, then we’ll figure it out.” And then it's too late to figure it out.

If there is no disagreement in expectations, then there is no conflict, and therefore no problems with dismissal.

How can I negotiate the terms with the employee before signing the contract?

“I'm taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell for 200 thousand rubles. In the second - for 350 thousand rubles. In the third - for 400 thousand rubles.

If you cannot reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need this. Do you agree? If you agree, then let's go."

These are examples from real practice. As a rule, in such cases, a person admits that he cannot cope, and, albeit with regret, leaves. And then he doesn’t mess up, doesn’t run around labor inspections and courts demanding to check you and force him to pay extra wages or reinstate him at work.

Nevertheless, there are also such workers who are always offended and believe that they still owe them. Yes, and those who left in a good way can be “wedged”, because, for example, at home, a husband or wife will psychologically provoke them so that they demand something from you.

In an attempt to “grab off” at least something, they often try to challenge the dismissal in court, so it is vital for you to know how to fire an employee as painlessly as possible and without further consequences in the event of courts.

Since the court most often takes the side of the employee (in Russia, for state bodies, the employer is always a greedy bourgeois oppressor who is obviously wrong), the safest and most safe option would be dismissal at the initiative of the employee, since there either cannot arise a dispute at all, or he himself will have to prove that he did not want to quit.

If the employer decides to fire, he himself will have to prove in court the legality of the dismissal.

This is explicitly stated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, which explains that when considering a case on the reinstatement of an employee 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 .

I would conditionally divide all practical examples of dismissal into two groups.

1. Dismissal of an employee on his own initiative or with his consent. This is:

• dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);

• dismissal of one's own free will (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee if he disagrees (we will consider only those grounds that are a measure of disciplinary responsibility, that is, punishment for the incompetence of an employee). This is:

• dismissal in the event of repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal in the event of a single gross violation of labor duties by an employee (absenteeism, appearance in a state of intoxication, disclosure of secrets protected by law, theft at the place of work, violation of labor protection requirements) (clause 6, part 1, article 81 of the Labor Code of the Russian Federation);

• this also includes dismissal on probation with an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation).

Termination of an employment contract (dismissal) is recognized as legal only if two conditions are met:

• the grounds for dismissal are expressly provided for by the Labor Code;

• follow the procedure for dismissal on this basis.

5 Safe Ways to Fire a Negligent Employee

The first and best way: dismissal by agreement of the parties

Firstly, unlike voluntary dismissal, in which the employee can withdraw the letter of resignation, the employee who signed the document on termination of the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be disputed.

Secondly, by agreement of the parties, it is possible to terminate any employment contract (fixed-term and for an indefinite period) with any person and at any time (there is no obligation to notify in advance).

Despite the fact that the contract is terminated by mutual agreement, either the employee or the employer must take the initiative. If the dismissal occurs at the request of the employee, he can write something like the following statement: “I ask you to terminate the employment contract on the basis of paragraph 1 of part 1 of article 77 of the Labor Code of the Russian Federation by agreement of the parties from October 15, 2017”. Date and signature.

The article and the basis itself must be clarified, otherwise you can interpret this as a statement of your own free will, and there are their own “surprises” (about them below).

If you take the initiative in terminating the employment contract, you can write like this:

“LLC “ABV” represented by General Director Ivanov I. I. offers you to conclude an agreement on termination of the employment contract on May 15, 2016 on the basis of paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties. I ask you to notify your consent or refusal to accept this proposal in writing within two days. The date. Signature. Seal".

The agreement must be in writing. No form of such an agreement is provided by the Labor Code. So you can take this example:

The second way, also not bad: dismissal of one's own free will

Article 80 of the Labor Code of the Russian Federation: “The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

Everything is simple here - the employee writes you a statement that he wants to quit of his own free will.

Main disadvantage:

article 80 of the Labor Code of the Russian Federation: “Before the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be refused to conclude an employment contract.

However, you can conclude an agreement on dismissal "on your own" and before the expiration of two weeks.

Also, sometimes for better motivation upon dismissal of their own free will, they offer to write a good testimonial.

If suddenly an employee says that he was forced to write a statement “on his own”, then he must prove this in court (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It's nice that a non-entrepreneur will have to make excuses. This is important in such cases.

The third way: dismissal of an employee who did not pass the test

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.

Basic rules of the trial period:

• in case of an unsatisfactory result of the test, the employee can be dismissed before the expiration of the test period, warning in writing, no later than three days, indicating the reasons;
• testing may not be available to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who 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;
• if there is no probation clause in the employment contract, then the employee is accepted without probation;
• the probationary period may not exceed three months;
• if the probation period has expired, and the employee continues to work, then he is considered to have passed the probation, and he will have to be dismissed on general grounds.

How to get fired right

1. Non-standard option.

It is possible to replace the dismissal on the basis of an unsatisfactory result of the test for dismissal of the employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article says that if during the probationary 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.

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, that is, he did not pass the probationary period. He understands this and leaves of his own accord. The question is settled: and the employer has achieved his goal, and the employee does not have a "bad" entry in the work book.

2. Standard option.

It is necessary to establish a probationary period in the employment contract, including:

• comply with probationary restrictions;
• comply with the test period.

On this occasion, it was written above in the basic rules of the probationary period.

It is necessary to draw up official (report) notes on work during the test, as well as other documents indicating that the employee does not stand the test. Either document the test procedure and show that it is violated.

Draw up a written decision that the employee did not pass the test. Correctly calculate the period for warning the employee about an unsatisfactory test result.

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). Dismiss after the expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in the prescribed manner (Article 84.1 and Article 140 of the Labor Code of the Russian Federation).

The fourth way: dismissal in the event of a single gross violation by the employee of labor duties

You can be fired for the following one-time gross violation of labor duties by an employee (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):

• absenteeism;
• appearing at work in a state of intoxication;
• disclosure of secrets protected by law, which became known to the employee in connection with the performance of his labor duties;
• the commission of theft or embezzlement at the place of work, established by a verdict that has entered into legal force or a court order;
• violation of labor protection requirements that caused serious consequences (accident at work, accident, catastrophe) or created a real threat of such consequences;
• 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);
• 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).

As it obviously follows from the word "one-time" - you can be fired if these actions are committed at least once.

Since in these cases 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.

How to get fired right

The procedure for imposing a penalty is specified in Article 193.

It is necessary to record the misconduct either in documents, or in the form of a memorandum, or in the form of an act (preferably with witnesses). You will have to prove later, so try.

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. Explanations are provided in the corresponding note.

The explanatory note should have a heading beginning with the preposition "o" ("about"), followed by the subject of the explanation.

An explanatory note is written on a regular sheet of paper indicating:

• the name of the employer;
• document type;
• dates
• compiler's signature.

If the employee refuses to write an explanatory note, then an act of refusal to give explanations is drawn up. It is better to sign the act to several persons (the more, the better).

The employee is asked to sign the act. If he refuses to sign the act, an entry is made in the act about this - and everyone signs it again. By the way, no one forbids capturing the fact of refusal on a mobile phone camera.

Not later than one month from the moment of committing the misconduct, an order is issued to impose a disciplinary sanction and dismissal.

Dismissal on the indicated grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, 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).

Fifth way: dismissal in case of repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction

As it obviously follows from the word "repeated" - you can be fired if these actions are committed more than once.

Such violations include, in particular:

• the absence of an employee without good reason at work or workplace;
• the refusal of the employee, without good reason, to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the internal labor regulations in force in the organization (Article 56 of the Labor Code of the Russian Federation);
• Refusal or evasion, without good reason, of a medical examination of workers in certain professions, as well as the 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.

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in clauses 33–35 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 of the Russian Federation”.

Thus, the courts, considering disputes, should take into account that the employee’s failure to fulfill duties without good reason is understood as the failure to fulfill 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 an employment contract, internal labor regulations, job descriptions , regulations, orders of the employer, technical rules, etc.).

The employee must be convicted of non-fulfillment of his labor duties without good reason, that is, of committing a disciplinary offense. At the same time, a disciplinary sanction must be imposed on this employee, which must not be removed by the time a new offense is committed.

How to get fired right

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. The procedure is established in article 193 of the Labor Code of the Russian Federation and was described above.

2. Identify a new violation. 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 refusal to provide an explanation after a two-day period, and so on).

Starting a career in the field of personnel management, I learned a very important lesson. I learned that the first three months of an employee's work determine his long-term prospects in the company. According to a study conducted by the Sloan School of Management at the Massachusetts Institute of Technology, the cost of hiring and training a new employee is 1.25 to 1.4 times their annual salary. The financial stability of a business is highly dependent on the quality of hiring. That is why we have been taught to recognize unsuitable employees as early as possible and start correcting their behavior as quickly as possible. If the behavior could not be corrected, we fired employees within 90 days. In fact, in each contract we indicated that during this time we can dismiss a specialist without giving reasons. Why did we do it? We knew that personnel mistakes are very costly. And that's why...

Why do people fail at work? Not because they lack experience.

Many people think that failure at work is primarily due to a lack of skills, but my experience tells me that the personality of the employee and his approach to work play a much larger role. If an employee does not fit into the culture, he interferes with those around him. It is unlikely that they want to work with a person they do not respect. As a result, the productivity of the team falls, and the leader has to figure out who is to blame. Ultimately, the weakest link is beyond the threshold. Given that new people often join established teams, it becomes clear why cultural fit is so important. If a new employee cannot find a common language with colleagues, it makes no sense to force him to work together. It's easier to let him go and look for someone else.

Here are five signs that you've made a personnel mistake.

If a new employee behaves in this way, this is a serious reason to think.

1. "I can do anything"

When a rookie takes on any task and declares that he can do anything, he is trying to prove his superiority over other members of the team. Of course, self-confidence is good, but few people can really cope with any role. You need an expert in your field, able to do a certain job. Remember that each team member should have their own specialization. In the first three months, a new employee must determine what his colleagues are doing and what he can bring to the common cause in order to achieve success.

2. "You all have to adapt to me"

New hires who immediately start voicing their demands become instantly known as “demanding” people. Thus, they create additional difficulties for others. New employees should think about how to make life easier, not harder for colleagues. The more useful they bring, the faster they are noticed and appreciated.

3. "I only talk to important people"

New employees who pay attention only to those who have influence do not know how to work in a team. These are unprincipled and prudent people who do not greet secretaries and representatives of other departments and cannot recognize someone's contribution to the common cause if it is not too great. Friends are vital for new hires because there is no way to know in advance whose help they might need.

4. "I'm waiting for a raise"

New employees who constantly talk about promotions tend to be too busy with themselves and their own affairs and willing to go over anyone to achieve their goals. New employees should strive to improve their skills at all costs in order to exceed the employer's expectations. Working hard is the best way to earn trust and respect, which will eventually lead to a promotion.

5. "I can do it, but don't expect me to push myself to the limit"

New employees who don't push themselves too hard don't care at all to build a trusting and mutually beneficial relationship with the employer. Any partnership requires investment. If an employee from the very first days does not care that the employer is satisfied with him, in the future his attitude is unlikely to improve. Besides, you won't be able to count on him if something happens. New employees must not only meet the employer's expectations, but strive to exceed them. This does not mean that they should spend as much time in the office as possible. Rather, they could be more productive and achieve the desired results in record time.

When hiring employees, pay close attention to how they behave. When you notice the first signs of a problem, try to fix it to minimize costs. If you've just landed a job, be proactive and seek help if needed to make sure you're doing well. Otherwise, you will have to look for a new job much faster than you would like.

J.T. O "Donnell, inc.com. Translation: Airapetova Olga