Dismissal from work at the initiative of the employee. Dismissal for loss of trust. Features of the dismissal of certain categories of workers

How to fire an employee who does not plan to leave the company? How to correctly formulate the reason for dismissal, referring to the norms of the Labor Code, so as not to lose the court? You will find answers, tips and sample documents in the article.

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What are the reasons for dismissal of an employee at the initiative of the employer

Dismissing an employee at the initiative of the company is not easy. To ensure that the routine personnel procedure does not end in litigation, complete all documents without errors and prove the legitimacy accepted by the employer solutions.

Legally permissible grounds for dismissal of an employee at the initiative of the employer are conditionally divided into 2 groups (Article 81 of the Labor Code of the Russian Federation):

Group #1. Guilty actions of the employee.

These include:

• repeated failure official duties in the presence of a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) or a gross single violation (clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
• behavior leading to loss of confidence(clause 7, part 1, article 81 of the Labor Code of the Russian Federation). It is applied only to personnel directly servicing commodity or monetary values;
• failure to take measures to prevent or resolve a conflict of interest in which the employee is involved, providing false information about his financial position and other actions that give rise to a loss of confidence in individual cases(clause 7.1, part 1, article 81 of the Labor Code of the Russian Federation);
• an immoral act incompatible with the continuation of work. They are applied only to employees performing educational functions (clause 8, part 1, article 81 of the Labor Code of the Russian Federation);
• submission of false documents during employment (clause 11, part 1, article 81 of the Labor Code of the Russian Federation);
• single gross violation job duties the head of an organization, branch or representative office or his deputies (clause 10, part 1, article 81 of the Labor Code of the Russian Federation);
• making an unreasonable decision that caused property damage to the employer. It is used only in relation to the head of the organization, his deputy or chief accountant (clause 9, part 1, article 81 of the Labor Code of the Russian Federation).

Disciplinary reasons for dismissal from work at the initiative of the employer are used with caution. It is impossible to dismiss an employee who does not have disciplinary sanctions for the very first misconduct, unless it refers to clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation.

Advice from the editors of the magazine "Kadrovoe delo"

The list of disciplinary violations for which they are fired the first time is small. However, if an employee skipped work without good reason, appeared at the workplace in a drunken state, appropriated the employer’s property, provoked an accident at work, or divulged a secret protected by law, and you can prove it, feel free to prepare documents for dismissal under the article, since we are talking about gross misconduct. The experts of the magazine "Kadrovoe delo" will tell you,

Group #2. Reasons that do not depend on the employee

These include:

• confirmed by the results of certification job incompatibility or assigned work (clause 3, part 1, article 81 of the Labor Code of the Russian Federation);
• reduction in the number or staff of the organization's employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation);
• termination of activity individual entrepreneur or liquidation legal entity(clause 1, part 1, article 81 of the Labor Code of the Russian Federation);
• change of ownership of the property of a legal entity. They apply only to the heads of companies, their deputies or chief accountants (clause 4, part 1, article 81 of the Labor Code of the Russian Federation).

Attention! It is forbidden to dismiss an employee for two or more reasons at once: even if there are several reasons, you need to choose only one and indicate it in the order, work book, personal card and other documents.

When dismissal of an employee at the initiative of the employer is unacceptable

You cannot fire an employee during vacation or illness. First you need to wait until the end of the sick leave or vacation. it general rule, does not apply to cases liquidation of the organization when the employment contract can be terminated without waiting for the employee to return to work (part 6 of article 81 of the Labor Code of the Russian Federation).

Advice from the editors of the site site

To fire a vacationer, try call him back from vacation in general order. Draw up a recall order in compliance with all the nuances of the procedure so that in the event of a lawsuit it is recognized as legitimate, and on the first working day of the employee, issue a dismissal in unilaterally at the initiative of the employer. But here we must remember that the employee has the right to refuse to be recalled from vacation without giving reasons.

Special dismissal

Legislative restrictions on the dismissal of an employee at the initiative of the employer relate to certain categories personnel subject to special rules.

1. pregnant women- only after the completion of pregnancy, except in cases of liquidation of the enterprise or termination of the activities of the individual entrepreneur (Article 261 of the Labor Code of the Russian Federation).
2. Persons with family responsibilities- only if the other parent or legal representative of the child has an official job. This category covers women with a child under the age of three, single fathers and mothers raising a young child (under 14 years old) or a disabled child under 18 years old, sole breadwinners in families with children under three years old, three or more young children or disabled child. The restriction does not apply if the grounds for dismissal of an employee at the initiative of the employer are provided for in the law (paragraphs 1, 5-8, 10, 11 of part 1 of article 81 of the Labor Code of the Russian Federation, paragraph 2 of article 336 of the Labor Code of the Russian Federation).

★ Experts from the Kadrovoe Delo magazine will tell you what to do if

1. juvenile- if a teenager is not yet 18 years old, he can be fired only with the consent of the GIT and the Commission on Juvenile Affairs. The restriction does not apply if the company is liquidated or the individual entrepreneur ceases to operate (Article 269 of the Labor Code of the Russian Federation).
2. Union members and elected union officials- after agreement with the trade union. What is needed for this, the expert of the "Personnel System" will explain:

1. Participants in collective bargaining and procedures for resolving labor disputes- only at the end of the negotiation process or dispute, except in cases of dismissal under a disciplinary article.

What is the procedure for dismissal of an employee at the initiative of the employer

The procedure for dismissal at the initiative of the employer is determined by the circumstances. At fired for drunkenness at work and other guilty actions, first, acts, memorandums and other documents proving the guilt of the dismissed person are drawn up, explanations are requested in writing. When dismissing on this basis, a certain procedure must be observed (Article 193 of the Labor Code of the Russian Federation).

Stage 4. Fill out a work book and a personal card.

The entry in the work book must exactly match the wording in the order. Don't forget to make a backup copy.

Stage 5. Make the final calculation.

Pay your salary along with everyone due compensation, issue a work book, a certificate of the amount of earnings and other documents related to work.

Carefully fill out the paperwork and strictly adhere to the established order. If the procedure for dismissing an employee at the initiative of the employer is not followed or the basis is chosen incorrectly, the decision can be challenged.

Consequences of unjustified dismissal at the initiative of the employer

Recognize illegal dismissal only through court. To do this, the injured party files a claim within a month from the date of termination labor relations. If the court establishes that the rights of the employee were violated upon dismissal at the initiative of the employer, he may:

• change the grounds for dismissal;
• force the company to pay compensation to a former employee;
• immediately reinstate an employee with payment for the entire time of forced absenteeism due to the fault of the employer.

Example

Fitter K. came to work drunk. The head of the section noticed this, wrote a memorandum and drew up an act, as a result, K. received a reprimand. Four days later, the general director of the company found out about the incident and demanded that K. be fired for a gross disciplinary violation (clause “b”, clause 6, part 1, article 81 of the Labor Code of the Russian Federation). The next day after the dismissal, the former employee went to court. During the proceedings, it turned out that the employer violated the procedure twice - did not request an explanatory note and applied two different penalties for the same offense, so the court reinstated K. at work.

Dismiss employees only when necessary and in strict accordance with the Labor Code, using the grounds listed in Article 81 of the Labor Code of the Russian Federation. Even minor procedural violations give rise to conflicts and lawsuits. If it is not possible to defend the correctness of the employer, you will have to restore former employee position or pay him compensation.

Termination of labor relations is possible only on the grounds provided for in the Labor Code of the Russian Federation. Their list is quite exhaustive. In most cases, termination employment contract made at the personal request of the employee.

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Labor legislation provides the possibility of breaking on this basis both an employment contract concluded for an indefinite period and a fixed-term contract.

General information

Constitutionally, forced labor is prohibited in Russia, so the employee has the right to terminate the employment contract on his own initiative.

The only caveat is that about your intention to leave workplace it is necessary to notify the authorities no later than 2 weeks before the proposed dismissal.

This time period is left in order for the company's management to find and invite a new employee to the vacancy.

In the event that the employee spontaneously leaves the workplace before the expiration of the two-week period, disciplinary measures may be applied to him.

Within two weeks, the employee retains his workplace and his position. During this period, the employee also has the right to withdraw a previously submitted application.

If 2 weeks have expired, and the employee has not been fired and does not insist on dismissal, then officially the employment contract continues to be valid.

You can also ask your employer to provide unused vacation instead of working out. But the authorities may not approve such a move.

If an employee changes their mind about leaving

There are times when, after submitting an application, the employee decides to change his mind and stay in his place. In this case, he must indicate his desire no later than the end of the two-week period from the date of application.

When the application is withdrawn, the employee may remain at his workplace, or may still be fired.

Labor law protects the interests of both parties to the employment contract. However, the worker, as his most vulnerable side, still has some advantages. So, it will be very difficult for an employer to dismiss an objectionable person, if not good reasons. The list of grounds for legally terminating an employment relationship is closed and is not subject to broad interpretation. Nevertheless, over the past century, the number of these grounds has more than quadrupled - today there are already 18 of them (we are talking about the grounds contained in Article 81 of the Labor Code of the Russian Federation). And this allows us to say that the legislator has taken into account all possible situations when it is necessary to dismiss an employee. So what are the features of the procedure for dismissing an employee at the initiative of the employer in 2016?

In what cases can an employee be fired at the request of the employer?

It is possible to dismiss an employee unilaterally only on the basis of a closed list of grounds expressly provided for by the Labor Code

The legislative basis for the forced termination of labor relations with a working citizen is the provisions of Art. 81 of the Labor Code of the Russian Federation. The norms contained in it can be conditionally divided into several groups.

Table: reasons for dismissal provided for in Art. 81 TK

Separate grounds for the dismissal of certain categories of employees can be found in other articles of the Labor Code:

1. Art. 71 gives the employer the right to fire an employee who has shown negative results during the test.
2. Art. 278 establishes several special reasons for the dismissal of the head:
   • in connection with his removal from management during bankruptcy;
   • by decision of the founder of a legal entity or its authorized body;
   • in case of non-compliance with the requirements of Art. 145 TK to the limit level of the average wages for senior positions of some state funds, institutions and enterprises;
   • on additional grounds contained in the concluded labor agreement.
3. Art. 307 makes it possible to establish additional grounds for dismissal in the contract if the employer is an individual who does not have the status of an individual entrepreneur.
4. Art. 312.5 allows termination of a remote worker contract for reasons specified in the same agreement.
5. Art. 347 gives the employer the right to dismiss an employee of a religious organization on additional grounds contained in the employment agreement concluded with him.
6. Art. 336 set special grounds for completion labor activity teachers:
   • repeated gross violation of the charter of the organization;
   • the use of illegal methods of education;
   • reaching the age limit established by the Labor Code.

It should be noted that the rules for applying the rules on the dismissal of an employee at the will of the employer make it possible to use them far from in any situation, even if the reason for this exists and is officially confirmed. Yes, you can't get fired.

• an employee who is actually absent from the place of work due to illness or official leave - during the entire time of his absence;
• a woman in a position (except in cases of completion of the activities of a legal entity);
• on grounds other than those established by paragraphs 1, 5–8, 10, 11 h.1 Article. 81 and paragraph 2 of article 336 of the Labor Code:
  • mother (father or other person in the absence of the mother) of the child before three years;
  • a single mother (another person in the absence of a mother) of a minor child or a minor child with a disability;
  • the sole breadwinner of a minor disabled child or a child under three years of age, if the family has more than three minor children.

The current legislation is designed for many situations in life. It protects the interests of the employer and production process while respecting the most vulnerable categories of workers and adhering to the principles of fairness in special cases. In practice, the following non-standard situations often arise:

1. The mother or father of a large family, if she or he is the only earner in the family, cannot be forcibly dismissed, provided that the employer’s desire to terminate the contract is not due to the termination of the legal entity’s activities or the guilty actions of the employee. At the same time, the family must have at least one child under three years old and three - up to 14 years old.
2. An employer can dismiss a remote (remote) employee only in situations established by the contract concluded with him. Thus, when drawing up an agreement on hiring a remote employee, it is necessary to carefully consider all possible situations in advance and indicate all possible grounds in the agreement, even if they will duplicate the TC.
3. If an employee is absent due to illness, but a decision has been made to dismiss him for one of the reasons established by Art. 81 (except for paragraph 1 of part 1), it will be possible to dismiss him only upon returning to work.

Termination of the contract for many reasons, providing for the absence of the employee’s fault (reduction, liquidation, departure of the head during a change in ownership, etc.), involves compensation payments by the employer.

Video: termination of an employment contract at the initiative of the employer

Features of the dismissal process at the request of the employer

The presence of a large number of diverse grounds for the dismissal of an employee at the request of the employer does not allow us to talk about a specific algorithm of actions within the procedure that would be suitable for any situation. The dismissal procedure for each individual reason, to one degree or another, has its own characteristics, among them:

1. When terminating contracts with employees due to the liquidation of a legal entity, the employer is obliged to inform each of them no later than two months before the expected date of dismissal. By mutual agreement of the parties, a citizen may leave before the appointed time with the payment of compensatory monetary remuneration in the amount of wages proportional to the unworked period. For temporary and seasonal workers, the notice period has been reduced to two and seven days, respectively.
2. With a reduction in staffing, the process is even more complicated:
   • first of all, the employer must approve the new staffing, by determining the positions to be abolished, taking into account the rules of preferential retention at work (Article 179);
   • 2 months in advance, and in case of mass reduction - three - to warn each employee falling under it (temporary and seasonal employees are warned two and seven days in advance, respectively);
   • within the same period notify the local employment center and the trade union organization;
   • by mutual agreement of the parties, the term of dismissal may be postponed to an earlier date with payment of compensation in the same amount as under similar circumstances in the conditions of liquidation of the organization;
   • to offer the reduced persons a transfer to the available and suitable vacancies for them, in their absence - to notify the employees about this.
3. When dismissing, applied as a disciplinary sanction for a repeated misconduct or a single gross violation, one should remember the terms for applying disciplinary sanctions - no more than six months from the date of commission (with the exception of those misconduct that were discovered by the audit) and no more than a month from the date of discovery. In addition, it must be observed next order actions:
   • fixing the fact of committing a misconduct (drawing up an act, memorandum of the head structural unit in the name of management);
   • familiarization of the person who committed the offense with the act, requesting explanations from him (in writing). If necessary, fixing his refusal to perform these actions (an act is drawn up on the refusal).

In case of application of other paragraphs of Art. 81 or other articles of the Labor Code upon dismissal at the initiative of the employer, each circumstance that became the basis must be documented (by the minutes of the meeting of the attestation commission, by the decision of the collective governing body of the legal entity, by the decision of the authorized state body, etc.). The drafted document will subsequently serve as the basis for issuing a dismissal order.

Dismissal procedure and basic documents

After the paperwork is completed - the grounds for dismissal in accordance with the reason for the termination of the employment relationship, the employer proceeds directly to the issuance of the order. At this stage, the following sequence of actions should be followed:

1. Issue a dismissal order, indicating the reason with reference to the article of the Labor Code and the grounds (documents confirming the commission of a disciplinary offense, explanatory, etc.).
2. To familiarize the dismissed person with the administrative document, and in case of his refusal to draw up an act about this.
3. Issue the final invoice to the employee.
4. Enter information about the dismissal in the work book.
5. Make notes about the dismissal in the personal file and the employee's personal card.
6. Notify the interested state bodies (bailiff service, military registration and enlistment office) of the dismissal, if necessary.

The main documents that need to be drawn up in the dismissal procedure at the initiative of the employer:

• notification of the reduction or liquidation of the organization;
• a proposal to transfer to a vacant position corresponding to the qualifications of a citizen;
• an act on the commission of a disciplinary offense;
• dismissal order.

Photo gallery: sample paperwork

The order for dismissal for absenteeism, as a basis, indicates the documents fixing the fact of this misconduct. The act fixing the fact that the employee committed the misconduct is signed by at least three employees of the organization. The dismissal order in connection with the liquidation of a legal entity must contain a reference to paragraph 1 of part 1 Article 81 of the Labor Code of the Russian Federation The dismissal order is drawn up on the T-8 form. The employer is obliged to notify employees of the liquidation of the organization and the upcoming dismissals in connection with this two months before the event occurs. in the form of a separate document, and is included in the notice of reduction The employee must be familiarized with the notice of reduction against signature

Rules for entering information into the labor

An employee's resignation note personnel service in the work book, must contain a link to the article of the Labor Code that served as the basis for the dismissal, and a breakdown of the reasons.

Table: an example of filling out a work book

Organization of expenses and compensation: what needs to be paid and how to calculate?

Upon dismissal at the initiative of the employer, the employee in without fail On the last working day, you must pay:

1. Salary for the unpaid period of work - is calculated based on the monthly salary of the employee in proportion to the number of days worked.
2. Bonuses, bonuses, allowances (if any are established by law, local documents of the employer or labor agreement and are payable taking into account the reason chosen for terminating the relationship) - are calculated in the manner prescribed by law or local legal acts.
3. Compensation for unused vacation in whole or in part - is calculated based on the average salary in proportion to the number of days not taken off.

Severance pay at the end of employment on the grounds under consideration is paid in cases established by the Labor Code:

1. In case of staff reduction or termination of the activity of a legal entity - in the amount of the average monthly salary (further, in the absence of employment over the next two months, two more average monthly earnings can be paid).
2. Upon dismissal of employees holding managerial positions:
   • when changing the owner of the property of a legal entity - in the amount of a two-week average salary;
   • by decision of the owner or an authorized collective body without the fault of the head - in the amount of three months' average earnings.

Example. Leading specialist T.P. Spetsian should be dismissed due to staff reduction on August 25, 2016. According to the labor agreement, her salary is 20,000 rubles. The regulation on bonuses at the enterprise provides for the payment of a monthly bonus for high labor achievements in the amount of 5% (in the absence of outstanding and outstanding disciplinary sanctions). For the period from August 2015 to July 2016, T.P. Spetsian received an income (minus social payments) in the amount of 250,000 rubles, she was not on vacation or on sick leave. For the working year (from February 13, 2016 to February 12, 2017), T.P. Spetsian is entitled to 28 days of labor leave.

Payroll preparation:

20,000 rubles / 23 working days (total in August) x 19 working days (worked out) = 16,522 rubles.

Surcharge calculation:

20 000 rubles x 5% / 23 working days x 19 working days = 826 rubles. (approximate calculation, in specific situation it will depend on the conditions defined by the document by which it is established).

Calculation of compensation for non-vacation leave:

1. Number of days: 28 days / 12 months x 6 months (full worked out of the working year) = 14 days.
2. Average daily earnings: 250,000 rubles / 12 months / 29.3 (average number of days in a month) \u003d 711 rubles.
3. Compensation: 14 days x 711 rubles. = 9 954 rubles.

Severance pay calculation:

711 r. x 22 working days (in the next calendar month - September 2016) = 15,642 rubles.

Employers should strictly observe the deadlines for the payment of the final payment (on the last working day, and in the absence of an employee - no later than the next day after the presentation of the request for payment). Otherwise, you will have to bear liability in the form of a penalty (1/300 of the Bank of Russia rate) for each day of delay.

The rights of the employee upon termination of the employment contract at the initiative of the employer

Despite the fact that the unwillingness of an employee dismissed at the will of the employer to terminate the employment contract is unlikely to change the situation in his favor, he is still endowed with a number of rights in the procedure:

1. Accept or reject job offers if termination is contemplated labor agreement to reduce the number of employees at the enterprise.
2. Upon agreement with the employer, receive compensation and leave earlier than two months at the end of the employment relationship due to the liquidation of the legal entity or reduction.
3. Get acquainted with the act of the committed misconduct.
4. Give explanations regarding the circumstances that led to the violation of discipline.
5. Receive assistance in protecting interests from the trade union organization.
6. Apply for protection of rights to the labor inspectorate or the prosecutor's office.
7. Appeal misconduct employer in the judiciary.
8. Receive statutory payments within three months subject to unemployment (for those laid off for reduction or liquidation).
9. Receive employment center benefits after dismissal in minimum size- for those dismissed for a disciplinary offense, on a general basis - for everyone else.

Arbitrage practice

Taking into account the unilateral procedure for terminating labor relations, the category of dismissals under consideration is the leader in terms of the number of disputes. Among the most popular violations on the part of the employer, which led to a court decision to recognize the dismissal as inconsistent with the law:

1. When terminating an employment contract for absenteeism and other gross violations:
   • incorrect determination of the time of absence from the workplace;
   • unfair assessment of the reason for absenteeism;
   • non-compliance with the procedural aspects of bringing a person to responsibility (lack of an act, failure to familiarize the employee, lack of an explanatory note, etc.);
   • non-observance of the principle of proportionality of the punishment and the gravity of the offense committed;
   • dismissal of an employee who is prohibited from dismissal on this basis (for example, a pregnant woman);
   • dismissal for being at work in a state of intoxication without an appropriate medical certificate
2. When applying the grounds - a repeated disciplinary offense:
   • lack of repetition;
   • non-compliance with the deadlines for bringing to responsibility;
   • non-compliance with the procedure for bringing to responsibility;
   • inconsistency in the severity of punishment;
   • dismissal of employees not subject to dismissal on such grounds.
3. When terminating an employment agreement to reduce staffing or liquidate a legal entity:
   • absence of actual reduction or liquidation of the legal entity;
   • non-compliance with the rules of preferential abandonment of employees in case of reduction;
   • non-compliance with the procedure for dismissal (untimely warning, failure to offer employees a transfer to existing vacancies, failure to notify the employment center and the trade union organization, etc.);
   • violations related to the liquidation of a branch or representative office (in this case, employees are subject to dismissal only if the organization has completely ceased its activities in the given area);
   • refusal to pay severance pay, violation of the rules for offsetting severance pay.

Modern Russian legislation contains a large number of diverse grounds for terminating an employment relationship with an employee at the will of the employer. Among them are violations of discipline, a low level of qualification of an employee, reasons related to the regulation of the regular number of employees and the termination of the activities of a legal entity, grounds that apply to certain categories of employees. Each of the grounds has its own characteristics regarding the procedure for carrying out the procedure, payments due to employees, and possible disputes. In order to avoid disputes with the involvement of authorized government agencies, and even more so entailing serious material and legal consequences, the employer should strictly follow the letter of the law when carrying out the dismissal procedure.

The dismissal of an employee at the initiative of the employer is a rather serious step on the part of the latter, which can have significant consequences both for the dismissed employee and for the employer himself, which in this case means the management of the enterprise. The fact is that the Labor Code Russian Federation designed in such a way that most of its provisions are focused on protecting the rights of the employee. This was done on purpose, as a concession to the trade unions, since in the employer-employee chain the latter is always in a subordinate position.

Of course, the rights of the employer are also protected, but it is in terms of dismissal at the request of the employer that they are significantly limited. The administration of any company operating in Russia, regardless of its size, state and ownership, must comply with strict rules layoffs. In the Labor Code of the Russian Federation, they are spelled out unambiguously, the list is closed and is not subject to correction.

Please note: if an employment contract with an employee includes some additional reasons for a possible dismissal that do not meet or supplement the requirements of the Labor Code, then they are a priori recognized as void, even if the employee put his signature under the contract. If you try to fire him for one of the "additional" reasons, any court will issue a verdict "Reinstate at work."

Legal Basics

The main thing that both the responsible manager and the executive subordinate need to know is these are the requirements of Article No. 81 of the Labor Code of the Russian Federation. It defines a closed list of reasons for dismissal at the initiative of the employer, including through the fault of the employee and without it. The same article describes separate grounds for the dismissal of certain categories of employees that stand apart, namely managers (and other responsible persons), teachers, etc.

Separate articles of the Labor Code regulate the conditions for dismissal for certain categories of employees, as well as some specific situations. In particular, Article No. 71 establishes the employer's right to dismiss an employee based on the results of a probationary period, Article No. 278 defines additional factors for the dismissal of a hired manager (including CEO), and Article No. 336 describes additional reasons for terminating a contract with a teacher.

You can also note article number 307, which concerns the rights of employers - individuals(for example, the dismissal of a housekeeper or a nanny), and article No. 347 - it relates to clergy (of various confessions allowed in Russia).

General grounds for termination of the contract due to the fault of the employee himself

To dismiss an employee at the initiative of the employer, it is necessary that he has committed one of the following guilty actions:

1. Repeatedly (an important circumstance!) allowed non-fulfillment of one or more of his job duties, without a good reason.
2. Once he committed a gross violation of labor discipline.
3. Skipped work (absenteeism is the absence of being at the workplace without a good reason for 4 hours or more).
4. Arriving at work and being at the workplace in a state of intoxicated consciousness, under the influence of drugs (including salts and spices), alcohol (even beer) and any other toxic drugs that change consciousness.
5. Disclosure of any official secret - commercial, state, medical, etc., if the employee had a formalized access to it.
6. Theft (even petty), embezzlement, violation of safety standards, if they led to a threat to the health and life of other people, and even more so - to an accident.
7. Participation in a conflict of interest or initiative in an industrial conflict, unwillingness to make concessions and take measures to relieve tension in the team.
8. Refusal to submit data on their income, expenses and property, or submission of false and distorted data, if such a requirement is established for this category of employees.
9. Presentation of false documents during the conclusion of an employment contract.

How to dismiss an employee at the initiative of the employer? It is required to comply with a number of conditions, especially if the termination of the employment contract is due to guilty actions. The fact is that every fact of an illegal act, violation of production discipline, etc., absolutely any reason of this kind must be documented. For example, it is impossible to unilaterally dismiss an employee due to drunkenness, guided only by his behavior, appearance and bad breath - a medical examination is required to confirm the presence of alcohol in the blood. In the same way, a conflict of interest, the fact of theft, absenteeism, and so on must be confirmed.

Please note: for some categories of civil servants, namely employees of special structures and services - the Ministry of Internal Affairs, customs, prosecutors, etc., as well as for officers and generals of the army, there may be special reasons for dismissal, which are fixed in separate legislative acts regulating the passage of civil and military service. An example is dismissal at the initiative of the employer due to loss of confidence.

But in addition to the above factors, which imply the unequivocal commission of some kind of misconduct, there are situations when there is no fault of a particular employee, but nevertheless the employer is forced to part with him.

Dismissal without fault

The list of these circumstances is much narrower, and all circumstances are classified as objective and insurmountable. So, dismissal at the initiative of the administration of an innocent person is possible only in three cases:

1. The company is closed (liquidated). His activity is interrupted. In relation to an individual entrepreneur and his employees, the option is acceptable when the de jure businessman retains the status of an individual entrepreneur, but stops his activity.
2. The company is officially downsizing.
3. The qualifications of the employee are not sufficient for this position.

In the same way as dismissal due to a guilty act, termination of an employment contract for one of these reasons requires compliance with certain conditions for dismissal. The third reason - the lack of qualifications - must be confirmed by the certification, the result of which is endorsed by the verdict of the competent certification commission.

Please note: the verdict of the commission recruited from the incompetent in a particular production area officials (for example, accountants in the field of CNC programming) can be challenged in court.

Special category employees

From the point of view of the Labor Code of the Russian Federation, there are a number of employees whose dismissal procedure has peculiarities. It:

• persons passing probation;
• senior managers;
• financially responsible persons;
• teachers (teachers and educators).

The former may be dismissed as having not passed the probationary period. At the same time, they must be officially notified 3 days before the settlement. The latter, being especially responsible employees, must leave their post if the owner of the company changes (this applies to general directors and chief accountants, sometimes their deputies), as well as if their management policy has led to a deterioration in the financial performance of the company, a significant loss of profit and/or bankruptcy. In addition, the head can be dismissed simply by the decision of the team of founders of the LLC or JSC or by the sole decision of the owner - without explaining the motives.

Another reason is the failure to comply with the requirements of Article No. 145 of the Labor Code, which establishes the average salary rate for the management of some state structures.

A financially responsible person of any rank, whose activities are related to material values ​​or financial transactions, may be dismissed due to loss of confidence. In fact - only on suspicion of any fraud.

A teacher or educator will have to leave their position if it is proven that they use illegal methods of education, for example, corporal punishment, or immoral behavior in general. The last point can be interpreted in a fairly broad sense - the reason may be, for example, an emphatically defiant style of clothing, if the teacher in this style regularly comes to work. But, like any non-specific reasons, dismissal for "immoral behavior" can be challenged in court.

Who can't be fired

Some groups of employees have more legal protection than others. These include:

• pregnant women;
• persons on vacation or sick leave;
• parent of any gender or guardian of a child under 3 years of age;
• single mother with a child under 14;
• parent or guardian of a disabled child (until they reach the age of majority).

These groups of citizens are protected from reduction. But you should be aware that none of these statuses gives indulgence from dismissal for a specific illegal act - theft, absenteeism, violation of safety regulations, an immoral act and loss of confidence (for the relevant categories of employees).

In addition, an employee who has a “working” disability group must be dismissed from a position that is not suitable for him necessary conditions labor, but only with a transfer to another job corresponding to his capabilities.

In the event of liquidation of the enterprise, all employees are subject to dismissal.

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The procedure for dismissal of an employee at the initiative of the employer in the general case is as follows:

• if there was an illegal act or violation of discipline, then it must be recorded in an act, memo, etc., an explanatory note must be received from the employee;
• a special commission issues a conclusion on the guilt of the employee;
• the conclusion is submitted to him for familiarization and signature, otherwise an act is drawn up refusing to familiarize himself with the paper;
• the employer issues an order or an order to terminate the employment contract;
• the employee must familiarize himself with it and put an autograph on the copy (if he does not want to, again this is endorsed by a separate act);
• settlement is made with the employee;
• he is given a work book with a properly executed record in his hands;
• notes are made in the personal file and other necessary papers;
• in special cases, the internal affairs bodies, the military registration and enlistment office, etc. are notified.

Dismissal, as a rule, in this case occurs one day, maximum - the next day after the employee reads the conclusion about his guilt. But it is much more difficult to break off working relations with employees on the planned reduction.

Firstly, everyone affected by the reduction must receive a notice of reduction at least 2 months before hour X. For temporary workers, a notice of dismissal at the initiative of the employer is issued 2 days in advance, for seasonal workers - 7 days.

The memo is addressed to all employers. Perhaps it will help you save money, time, and most importantly - nerves. The current Labor Code of the Russian Federation contains 18 grounds for the dismissal of an unscrupulous employee. For comparison: in 1918 there were only 4 such grounds, in 1922 - 8, in 1971 already 14. Thus, the development of domestic labor legislation is moving towards increasing the grounds for dismissal, which, of course, is not bad for the employer.

Speaking about the dismissal of employees at the initiative of the employer, it should first be noted that the list of grounds established by the Labor Code is exhaustive (i.e., the employment contract cannot provide for other grounds for the dismissal of an employee than those listed in the Labor Code of the Russian Federation). But there are exceptions to this rule - on the grounds provided for by the agreement of the parties, the heads of organizations can be dismissed (clause 3 of article 278 of the Labor Code of the Russian Federation); employees employed by individual employers (Article 307 of the Labor Code of the Russian Federation); homeworkers (Article 312 of the Labor Code of the Russian Federation); workers employed in a religious organization (Article 347 of the Labor Code of the Russian Federation).

Article 81 of the Labor Code of the Russian Federation gives general list grounds for dismissal of employees at the initiative of the employer. Most of the paragraphs (paragraphs 1-3, 5, 6, 11, 12) are applicable to all employees without exception, paragraphs 4, 7-10, 13 of Article 81 of the Labor Code of the Russian Federation fixed additional grounds applicable only to certain categories of employees (dismissal of the general director (head of the organization), dismissal of the chief accountant, etc.). We will consider only those grounds for dismissal of employees that apply to all employees.

All grounds for dismissal can be divided into two large groups - those associated with the guilty actions of the employee and not dependent on the presence of guilt in his actions.

Dismissal of an employee due to his guilty actions

1. Repeated non-performance by an employee without a good reason of labor duties, if he has a disciplinary sanction (clause 5, article 81 of the Labor Code of the Russian Federation). The range of duties of the employee is determined by the employment contract and internal regulations. 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” provides examples of non-performance (improper performance) by an employee of his labor duties. These include: - the absence of an employee without good reason at the workplace; - refusal of an employee without good reason to perform work duties in connection with a change in internal regulations (Article 162 of the Labor Code of the Russian Federation); - refusal or evasion of a medical examination, from passing special training and passing exams on labor protection, safety precautions and operating rules, if this is prerequisite permission to work. The dismissal of an employee on this basis will be only if there is a disciplinary sanction (valid for one year) and only if the violation is repeated. If a disciplinary sanction was not applied to an employee, then he cannot be dismissed on this basis.
2. Single gross violation of labor duties (clause 6 of article 81 of the Labor Code of the Russian Federation) - absenteeism (absence from the workplace without good reason for more than 4 hours in a row); - appearing at work in a state of alcoholic, narcotic or toxic intoxication (can be confirmed both by a medical report and other evidence, for example, testimonies of other employees); - disclosure of secrets protected by law (commercial, official, state), which became known to the employee in connection with the performance by the employee of his labor duties (for dismissal on this basis, following conditions: there must be a provision on commercial or official secrets and a list of classified information approved by the employer; there must be a non-disclosure clause in the employment contract); - violation by the employee of labor protection requirements, if these violations entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a threat of such events. List of cases that are recognized gross violation of their duties is exhaustive.
3. Submission by an employee of forged documents or other knowingly false information when concluding an employment contract (clause 11, article 81 of the Labor Code of the Russian Federation). Forged (falsified) documents can be documents on education, work experience, etc. Dismissal on this basis is similar to the dismissal of an employee due to his lack of a document on education, if the performance of the work requires special skills (Article 84 of the Labor Code of the Russian Federation). However, in the latter case, there are no guilty actions of the employee and the dismissal occurs due to objective reasons, i.e. without the fault of the employee.

Dismissal of an employee in the absence of his fault

1. Inconsistency of the employee with the position held or the work performed (clause 3, article 81 of the Labor Code of the Russian Federation) An employee may not correspond to his position for health reasons or due to insufficient qualifications, if this prevents him from properly performing his job duties. Insufficient level of qualification must be confirmed by the results of certification conducted in the manner prescribed by federal law or other regulatory legal act, or in the order fixed in the local normative act organizations. On this basis, in principle, it is possible to dismiss almost any objectionable employee if for some reason he does not want to leave his workplace. We have repeatedly helped our clients in carrying out and correct design similar certifications. The attestation procedure assumes: a) the presence of a regulation on attestation; b) attestation is carried out by a special attestation commission established in the manner prescribed by the regulation on attestation; c) certification should be carried out in relation to all employees of a certain category (with the exceptions established by the regulation); d) certification should be periodic (for example, once a quarter), and not extraordinary; e) the results of the appraisal in relation to each employee are drawn up in an appropriate conclusion, which gives the employer the right to terminate the employment contract on his own initiative. Following these simple rules will help the employer avoid possible complications with the dismissal of an obstinate employee.
2. Liquidation of the organization or termination of the activities of the employer-individual (clause 1 of article 81 of the Labor Code of the Russian Federation).
3. Reduction in the number or staff of employees (clause 2, article 81 of the Labor Code of the Russian Federation).

With the number, everything is more or less clear - this is total number employees, due to the applied in the organization technological process and service needs of the enterprise. The staff is understood as a set of managerial and administrative positions of various levels, as well as specialists. The staff is usually determined by the head of the enterprise by issuing a staffing table.

The employer is obliged to notify the employees of the enterprise about the dismissal of the reduction in staff (as well as the liquidation of the organization) against receipt 2 months in advance and at the same time bring to the attention of the local employment service authority data on the upcoming release of each individual employee, indicating his profession, specialty, qualifications and salary . Again, two months before the dismissal of workers on these grounds, the employer is obliged to inform the trade union body in writing about this, and if there is a mass dismissal, three months before the upcoming events.

In order to carry out the correct dismissal on this basis, it is necessary to accept, first, an order to reduce the staff, and second, orders to dismiss employees (in relation to each of them). At the same time, one should take into account the preferential right of some workers to remain at work, all other things being equal: family - in the presence of two or more disabled family members, disabled people of the Great Patriotic War, etc.

We should not forget that it is unacceptable (under fear of the subsequent reinstatement of the employee and various penalties) to dismiss an employee during his period of incapacity for work and during vacation (part 3 of article 81 of the Labor Code of the Russian Federation), as well as the dismissal of pregnant women, with the exception of dismissal during the liquidation of the organization (part 1 of article 261 of the Labor Code of the Russian Federation).

Severance pay in the amount of the average monthly salary is paid upon dismissal of employees for health reasons or the results of certification, upon liquidation, as well as upon reduction in the number or staff of the organization.

The procedure for dismissal (form of dismissal). The termination of the employment contract is formalized by the order of the employer, on the basis of which an entry is made in the work book of the dismissed employee. The work book must indicate the exact reason for dismissal. Entries are made in strict accordance with the wording labor code(with reference to the relevant paragraph and article) and without abbreviations. Rules of conduct work books approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books”.