For what the employer can dismiss the employee. How to get fired when an employee does not want to leave. The voluntary dismissal procedure

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Stanislav Sazonov

What is the danger of dismissals

When you dismiss an employee, negative consequences may arise for you as an employer.

1. If even the employee is dismissed legally, but complains to the labor inspectorate, and when checking the dismissal is found 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 1,000 to 5,000 rubles; from 5000 to 10 thousand rubles for the absence of an employment contract or for errors in it;

• for you as a director of an LLC (PJSC, ZAO, GUP, 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 may receive a fine of up to 120 thousand rubles for the absence of an employment contract: a fine of 20 thousand to the director and 100 thousand rubles from an LLC.

2. If an employee is dismissed illegally, a demand may follow and reinstate him at work, pay a salary during a forced absence, pay expenses for lawyers and, as a rule, compensate moral damage. Recovery is carried out only by court order.

3. If the salary was paid “in an envelope” or the employee was not officially registered, 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 assessed taxes, insurance premiums, and also fined.

Consider how to avoid the second situation.

Dismissal: 80% of psychology and 20% of the law

How to gently push an employee to voluntarily terminate an employment contract? In dismissal, in addition to legal nuances, there are psychological ones. And sometimes psychological even take precedence.

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 the duties of an employee are clearly stated in your employment contract, but he clearly cannot cope with them (for example, the sales manager does not fulfill the plan, violates the technology of working with customers - he agrees on accounts for a long time, violates the stages of sales, does not negotiate with those persons), then there are no disputes and conflicts.

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

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

The employer thinks: “It seemed to me that everything is super, he understood everything, and will work as I need. But he breaks deals, doesn’t know how to communicate with customers, who called, doesn’t remember, doesn’t record contacts, says “Alle” on the phone, but he should say: “ABV company, Ivan Ivanov, good afternoon” ... Well, mine! ”

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

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

If there is no disagreement in expectations, then there is no conflict, which means that there are no problems with dismissal.

How can I discuss the conditions with the employee before signing the contract

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

If you can’t reach 400 thousand by the third month, then you and I will earn little, but neither you nor I need it. Do you agree? If I agree, then let's go. ”

These are real world examples. As a rule, in such cases, a person admits that he cannot cope, and even with regret, he leaves. And then he doesn’t do any harm, he doesn’t run around labor inspectorates and courts demanding to check you and make you pay extra or restore him to work.

Nevertheless, there are also such workers who are always offended and believe that they should all the same. And those who left in a good way can be “pinned”, because, for example, at home, the husband or wife will psychologically provoke them to demand something from you.

In an attempt to “grab” 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 case of courts.

Since the court most often takes the side of the employee (the employer is always a greedy bourgeois-oppressor for government bodies in Russia, who is obviously wrong), the most win-win and safe option would be dismissal at the initiative of the employee, since there can either be no dispute at all, or he himself will have to prove that he did not want to quit.

If the employer decided to dismiss, he himself would have to prove in court the legality of the dismissal.

This is explicitly stated in paragraph 23 of the Decree of the Plenum of the Supreme Court of the Russian Federation, which clarifies that when considering the reinstatement of an employee whose employment contract was terminated on 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. It:

• dismissal by agreement of the parties (paragraph 1 of paragraph 1 of Article 77 of the Labor Code of the Russian Federation);

• voluntary dismissal (paragraph 3 of paragraph 1 of Article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee in case of his disagreement (we will consider only those grounds that are a measure of disciplinary responsibility, that is, a punishment for the incompetence of an employee). It:

• dismissal in case of repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (paragraph 5 of paragraph 1 of Article 81 of the Labor Code of the Russian Federation)

• dismissal in the event of a single gross violation by an employee of work duties (absenteeism, intoxication, disclosure of secrets protected by law, embezzlement at the place of work, violation of labor protection requirements) (Clause 6, Part 1 of Article 81 of the Labor Code of the Russian Federation);

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

Termination of the 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;

• the order of dismissal on this basis has been followed.

5 safe ways to fire a negligent employee

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

Firstly, in contrast to the voluntary dismissal, in which the employee can withdraw the application for dismissal, the employee who signed the termination of the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be challenged.

Secondly, by agreement of the parties, you can terminate any employment contract (urgent and indefinitely) with any persons and at any time (there is no obligation to warn 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 approximately 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 must be clarified, otherwise it can be interpreted as a statement of one’s own free will, and there are some “surprises” there (about them below).

If you take the initiative to terminate the employment contract, you can write this:

"LLC ABV" in the person of General Director Ivanov I.I. invites you to conclude an agreement on termination of the employment contract on May 15, 2016 on the basis of clause 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 you of your consent or refusal to accept this proposal in writing within two days. The date. Signature. Printing. "

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

The second way, also not bad: voluntary dismissal

Article 80 of the Labor Code of the Russian Federation: “An employee has the right to terminate an employment contract by notifying the employer in writing at least two weeks in advance, unless otherwise specified by this Code or other federal law. The specified period begins on the 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 at his own request.

The main minus:

article 80 of the Labor Code of the Russian Federation: “Prior to the expiration of the termination notice, the employee has the right to withdraw his application at any time. In this case, dismissal shall not be effected unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, may not be refused the conclusion of an employment contract. ”

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

Also, sometimes for the best motivation when dismissing on their own, they suggest writing a good description.

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

It's nice that no entrepreneur will have to make excuses. This is important in such matters.

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

The possibility of dismissal in case of an unsatisfactory test result is provided for in Art. 71 of the Labor Code of the Russian Federation. In this case, the employer has the right, prior to the expiration of the test period, to terminate the employment contract with the employee, notifying him in writing at least three days in advance, indicating the reasons for the recognition of this employee as failing the test.

Basic rules of the trial period:

• if the test result is unsatisfactory, the employee can be dismissed before the end of the test period by warning in writing, no later than three days, indicating the reasons;
• the test may not be set for 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 entering the work in the specialty acquired within one year from the date of graduation from the educational institution;
• if there is no test provision in the employment contract, the employee is accepted without a test;
• the trial period may not exceed three months;
• if the test period has expired, and the employee continues to work, then he is considered to have passed the test, and he will have to be dismissed on general grounds.

How to properly dismiss

1. Non-standard option.

It is possible to replace the dismissal on the basis of an unsatisfactory test result for the dismissal of the employee of his own free will, if he makes such a decision after receiving the notice specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. Indeed, the article says that if during the test period the employee concludes that the work 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 in writing three days in advance.

In most cases, this situation is resolved peacefully: the employee is informed that he did not come to do the job for which he was accepted, that is, the probationary period did not pass. He understands this and quits of his own free will. The question has been settled: both the employer has achieved his goal and the employee does not have a “bad” entry in the workbook.

2. The standard option.

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

• comply with probationary prohibitions
• comply with the test deadline.

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

It is necessary to draw up service (reporting) notes on the work during the test, as well as other documents indicating that the employee does not pass the test. Or document the test procedure and show that it is violated.

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

To warn the employee in writing of an unsatisfactory test result no later than three days later with an indication of the reasons (part 1 of article 71 of the Labor Code of the Russian Federation). Dismiss after 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).

Fourth way: dismissal in the event of a single gross violation by an employee of labor duties

You can dismiss for the following one gross violation by the employee of labor duties (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation):

• absenteeism;
• appearance at work while intoxicated;
• disclosure of secrets protected by law, which became known to the employee in connection with the performance of labor duties;
• committing embezzlement or embezzlement at the place of work, established by a court decision or court order that has entered into legal force;
• violation of labor protection requirements, which entailed grave consequences (industrial accident, accident, catastrophe) or created a real threat of such consequences;
• the commission of guilty acts by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer (paragraph 7 of part 1 of article 81 of the Labor Code of the Russian Federation);
• the commission by an employee performing educational functions of an immoral misconduct incompatible with the continuation of this work (Clause 8, Part 1, Article 81 of the Labor Code of the Russian Federation).

As the word "one-time" obviously implies, you can fire if these actions are committed at least once.

Since in these cases disciplinary violations are the basis for dismissal, when applying dismissal as a measure of disciplinary sanction, it is necessary to carefully follow the procedure for imposing disciplinary sanction established by Art. 193 of the Labor Code of the Russian Federation.

How to properly dismiss

The enforcement procedure is specified in article 193.

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

Prior to disciplinary action, 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” (“o”), followed by the subject of explanations.

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

• name of employer;
• type of document;
• dates
• signatures of the originator.

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

The employee is invited to sign the act. If he refuses to sign the act, a note is made about this in the act - and everyone signs it again. No one, by the way, prohibits capturing the fact of a refusal to a mobile phone’s camera.

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

Dismissal on these grounds is allowed no later than one month from the day the misconduct was discovered, not counting the time of the employee’s illness, his vacation, and the time required to comply with the procedure for taking into account the views of the employee’s representative body (part 3 of article 193 of the Labor Code of the Russian Federation).

Fifth method: dismissal in the event of repeated non-performance by an employee without good reason, if he has a disciplinary sanction

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

Such violations include, but are not limited to:

• absence of an employee without good reason at work or workplace;
• refusal of an employee without good reason to perform labor duties in connection with a change in the established procedure of labor standards (article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract the employee is obliged to fulfill the labor function defined by this contract, to comply with the organization’s internal labor regulations (article 56 of the Labor Code of the Russian Federation);
• refusal or evasion without good reason of a medical examination of employees of certain professions, as well as the refusal of the employee to undergo special training during working hours and pass exams on labor protection, safety and operating rules, if this is a prerequisite for admission to work.

When using this reason for parting with an employee, attention should be paid to the explanations given in paragraphs 33–35 of the Decree of the Plenum of the Supreme Court of the Russian Federation of 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 failure to perform duties by an employee without good reason means non-fulfillment of work duties or improper performance of the duties assigned to him (the violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions , provisions, orders of the employer, technical rules and the like).

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

How to properly dismiss

1. To apply the penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for disciplining. The procedure is established in article 193 of the Labor Code of the Russian Federation and has been described above.

2. Identify a new violation. Check the disciplinary procedure in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (fixing the fact of violation, demanding an explanation, drawing up an act to refuse to provide an explanation after a two-day period, and so on).

To write

The relationship between the employer and the employee does not always work out well. There are situations when the only way to avoid conflict is to quit. It can be initiated by both the employee and the employer.

In the first case, everything is quite simple. According to general rules, the employee writes a statement, fulfills 2 weeks and leaves the company. Concerning employee dismissal at the initiative of the employer, then there are many subtleties. Further in the article we will try to deal with them.

Why can they get fired?

Reasons for the dismissal of the employee on the initiative of the employer quite a bit of. Meanwhile, any action related to the termination of the contract must be justified and documented.

The main reasons for the dismissal of the employee on the initiative of the employer it could be considered:

• Unsatisfactory results of certification.
• Failure by the employee to perform his duties properly, careless It is worth saying that in this case, the dismissal of the employee on the initiative of the employer is allowed only after a series of measures. In particular, the employer is obliged to warn the employee about the inadmissibility of such behavior in writing, to apply other disciplinary sanctions. If all these measures fail, then dismissal follows.
• Employee taking actions that cause damage to the enterprise. It is, in particular, the disclosure of information protected by law, theft, etc. In all these cases, there must be evidence of employee guilt.
• Committing incompatible with the post. For example, dismissal threatens a teacher degrading students.
• The appearance at the enterprise in a drunken state.
• Providing deliberately fake documents when applying for a job.
• Liquidation of the enterprise (termination of IP), staff reduction.

If the organization changes its owner, then you can fire the accountant and director. The rest of the staff should remain at work, unless, of course, there are others grounds for dismissal. At the initiative of the employer with an employee the contract is terminated only in extreme cases. Moreover, in some situations, dismissal is a right, and in others it is the employer's duty.

The nuances of the process

In the TC, the requirements are fixed for the employer who wants to part with an employee.

At the dismissal of the employee on the initiative of the employer the latter is obliged to notify the employee in writing of upcoming events. The notice should reflect the reasons for making such a decision with reference to the norms of labor legislation.

The employee, in turn, can prevent dismissal. His actions will depend on the nature of the reasons why the contract is terminated with him. In many cases, in practice, the parties manage to resolve the conflict. In such situations, you can contact the labor inspectorate, whose representatives will assist in resolving the dispute. If the employer and the employee did not manage to come to a consensus, it is better to terminate the contract.

Guilty Offenses

May be related to employee misconduct. Among the main violations are the following:

• Systematic lateness, absenteeism.
• Refusal to comply with the rules of the company.
• Failure to comply with the requirements for medical examination, training in safety rules, evasion of certification, if these procedures are mandatory for the employee.
• Disclosure of information classified by law as commercial, official or other secret.
• Violation of TB rules if this entails serious consequences or the threat of their occurrence.

Certification

In the course of its passage, the correspondence of the competence of the person to the position that he occupies is determined. The law establishes the certification test procedure. The procedure includes:

• Approval of the Regulation on certification. It describes the conditions, the frequency of the procedure, the evaluation criteria, the composition of the commission, the rules for drawing up a report.
• The publication of the certification order. It should indicate the time and venue, information about certified employees.
• The formation of the commission.
• Passing test staff.
• Making a conclusion. In it, the commission formulates conclusions on the suitability of each employee.

If in the course of certification an insufficient qualification of an employee is revealed, the manager can send him to training or dismiss him. In any case, with a negative conclusion of the commission, a citizen cannot continue to work in the same position.

Employee committing a crime

Dismissal of an employee at the initiative of the employer just because the employee is being prosecuted is not allowed. The presumption of innocence is valid in the Russian Federation. Until the person's guilt is proved, he is considered not involved in the act. Even a detained citizen continues to be on staff. However, it should be noted that during this period the employee is not at the enterprise and does not fulfill his duties. Accordingly, earnings are not accrued to him.

If the employee is convicted, termination of the contract with him is carried out solely on the basis of a court decision in accordance with Article 81 of the Labor Code . Dismissal of an employee at the initiative of the employer in this case, it can be caused by loss of confidence or an immoral act.

Medical contraindications

If they exist, the manager must either terminate the contract or offer the employee other activities that he can carry out without harming his health. Corresponding rules are fixed by the Labor Code of the Russian Federation.

Dismissal of an employee at the initiative of the employer in these cases, it is possible only after the head has offered the employee all the vacancies that he has in the area. The tenant must offer positions in another territory, if provided for by the collective agreement or labor agreement.

The presence of contraindications should be confirmed by the conclusion of a medical commission. For some categories of employees, a physical examination is mandatory. These, for example, include employees of public catering, teachers, medical workers. It is during the examinations that possible contraindications are revealed. If a citizen evades compulsory medical examination, he may be fired.

Non-Party Circumstances

The termination of the contract may be due to the following reasons:

• Conscription into the army, the implementation of activities related to the passage of alternative service.
• Reinstatement at the place occupied by the employee of a citizen previously dismissed but reinstated in the state by decision of the labor inspection or court.
• The expiration of the contract.
• The death of an employee or his recognition as missing.
• Extraordinary circumstances that create obstacles to further employment.
• Lack of access to information constituting a secret protected by law.
• Recognition of the decision of the labor inspectorate or court on reinstatement of a person at work invalid.

Termination of a contract with a part-time

Dismissal on the initiative of the employer of an employee combining positions may be associated with the return to work of the main employee. For example, a citizen was on long-term treatment or on a business trip.

The order of dismissal of the employee on the initiative of the employer in such cases it is similar to the rules applicable to other general cases. The only nuance that should be mentioned concerns the entry in the work book. If the combination took place at different enterprises, the information in this document is indicated by an employee of the personnel department of the enterprise, which is the main place of work of the person.

Step-by-step instructions for dismissing an employee on the initiative of the employer

The stages of the procedure may be adjusted depending on the circumstances causing the termination of the contract. In case of violation by the employer, step-by-step instructions for dismissing an employee on the initiative of the employer includes:

• Fixing information about the violation.
• Clarification of circumstances.
• Application of measures.

At each stage, relevant documents are compiled. It must be said that, in accordance with the Labor Code, the dismissal of an employee on the initiative of the employer is allowed no later than 6 months. from the date the employee committed the misconduct.

Fixing violation

When revealing the fact that an employee committed an illegal act, it is advisable to immediately form a commission that will deal with the study of all circumstances. There are several ways to record a violation. Most often this is done by compiling:

• Act of violation. This document must be executed in the presence of at least 2 witnesses.
• Memo note. It can be written by a colleague or the immediate superior of the employee.
• Commission findings. As a rule, this option is used for serious violations.

Familiarization of the employee with documents

When the commission confirms the guilt of the employee, one copy of the report is provided to him for review. At the same time, after reading the contents of the document, he must sign. The employee has the right to refuse this. In this case, an act is drawn up.

After reviewing the claims, the employee is given 2 days to respond. Simply put, he needs to write an explanatory note. The employee may refuse to explain their actions. Then it is also necessary to draw up an act. In practice, in such cases, as a rule, dismissal of an employee. At the initiative of the employer a special commission may be convened, which includes representatives of the labor inspectorate and the union. At a joint meeting, they decide on the situation.

If after 2 days no explanation has been received from the employee, the employer has the right to terminate the contract with the employee unilaterally.

Order

Only on its basis, according to Labor Code of the Russian Federation, dismissal of an employee. At the initiative of the employeror on their own, this happens - it doesn’t matter. Always termination of the contract is preceded by the issuance of an order.

The corresponding order is drawn up after the manager has studied all the circumstances and materials collected during the audit. It is advisable to attach copies of documents related to the incident to the order.

After signing the order, the dismissed employee must be familiarized with the order. Three days are allotted to this legislation. If the employee refuses to sign or is absent from the enterprise, an act is drawn up or the corresponding record is placed directly on the order.

Labor entry

The fact of dismissal is noted in the work book on the same day on which the order was issued. The entry should contain a link to a specific article and paragraph of the TC. The employee receives the workbook on the day the corresponding mark is entered.

Keep in mind that abbreviations are not allowed in the record.

If, for any reason, the employee cannot pick up the labor, he is sent a notification about the need to come to the enterprise or give consent to send the document by mail.

Exceptions to the Rules

The legislation provides guarantees for a number of categories of employees. They are not subject to general rules, including those governing the procedure dismissal at the initiative of the employer. Employee You cannot fire if:

• He has a young child (children) under the age of 1.5 years. Moreover, this rule applies to both mothers and fathers.
• He alone brings up a child under 14 years old.
• He is dependent on a minor disabled person.

You can not dismiss a pregnant woman.

These prohibitions, however, do not apply to:

• The termination of the enterprise activities.
• Repeated violation by the employee of the rules established in the organization (improper performance of duties, absenteeism, etc.).
• Identification of theft.
• Disclosure of information constituting a secret (commercial, banking, etc.).
• Committing an immoral act.
• Providing when hiring.

Dismissal of an employee at the initiative of the employer: compensation and mandatory payments

According to the standards, the employer on the day of termination of the contract must make a full calculation of the amounts due to the employee. These include:

• Salary for days worked.
• Surcharge to salary.
• Compensation for unused vacation.

In cases provided for by law, severance pay is also paid.

If it is impossible to pay the funds due to the absence of a citizen at work, the amount due should be paid no later than the next day after the presentation of the payment request.

Upon liquidation of the organization, the employee receives severance pay. Its calculation is based on the average monthly earnings. During the search for work, the employee also receives compensation. It is equal to the average monthly salary for 2 months. In exceptional cases, the employee may be saved earnings during the third month.

Somewhat different conditions are provided for the chief accountant, director and his deputy. In the event of a change of ownership of the organization, the new owner, upon dismissal of these employees, pays them compensation amounting to the average monthly salary for 3 months.

If the contract is terminated due to or the presence of medical contraindications, the citizen receives compensation equal to two weeks of earnings.

The collective agreement may provide for higher amounts of payments.

It must be said that with dismissal of an employee of retirement age at the initiative of the employer he is also entitled to all payments and compensation. Additionally, the head of the enterprise can reward the employee for high professionalism.

Finally

It is currently quite difficult for an employer to terminate a contract with an employee unilaterally. The rules established by law must be observed.

It is worth saying that not only in Russia is such a complex order. Similar rules, for example, are enshrined in the legislation of the Republic of Belarus. The dismissal of an employee at the initiative of an employer in Belarus is also carried out in several stages. In addition to the Labor Code, Decree No. 29 of 1999 is in force in this country, providing for additional measures aimed at improving labor relations and strengthening at enterprises and organizations.

The technology of popular methods of dismissal

Ways and comments of experts

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation. Most often, the reasons for such dismissals are discussed tête-à-tête, but individual cases are made public.

Natalia Plastinina, Head of the Legal Support Sector:

The reason for the separation is not bad, but in most cases it requires additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation instructions for the payment of severance pay upon dismissal by agreement of the parties, long-term practice of solving difficult situations in labor relations has shown that the employee agrees to such a “soft, smooth, but not part of his plans” separation only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee for dismissal on the basis under consideration in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties are discussing the size of this compensation at the level of 2-3 salaries, taking as a guide the size of the severance pay while reducing staff. However, in special cases (dismissal of the manager of any link), this size can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be "hooked" on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases constitute dismissal of truant or an alcoholic in those circumstances when the employer was unable to obtain sufficient evidence of employee misconduct and could not risklessly apply the grounds for dismissal appropriate to the situation (paragraph “a”, clause 6 para. 1 Article 81 of the Labor Code of the Russian Federation and subparagraph “b”, paragraph 6 of paragraph 1 of Article 81 of the Labor Code of the Russian Federation). The hardest thing is to find agreement with a specially protected category of workers who cannot be dismissed on the initiative of the employer (during certain periods of their activity), pregnant women, persons with family responsibilities listed in Art. 261 of the Labor Code of the Russian Federation. These workers, being in a wounded state, are so afraid of losing their permanent job and not finding a new one that they refuse to conclude agreements on termination of the employment contract, despite the proposed compensation, and if such an agreement is signed, they turn to the courts to challenge them because of a defect of their own free will .

Thus, in addition to the material side of the issue, this basis has one more minus - a high risk of successfully challenging a dismissed employee for his dismissal. And practice knows cases where a court has recognized an agreement on termination of an employment contract as unlawful due to the absence of an employee’s will to do so. (as an example, one can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case No. 33-156), in which the court, having carefully examined the agreement drawn up by the parties, came to the conclusion that there was no real will of the employee to terminate the employment relationship, and there was only a desire to transform labor relations (the agreement contained the obligation of the employer to accept the employee again in the future). In this regard, the court concluded that the dismissal was unlawful under paragraph 1 of paragraph 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: minuses of dismissal by agreement of the parties:

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

The agreement of the parties is applied not when the employer cannot find a suitable article in the Labor Code of the Russian Federation, but when the employer soberly assesses the time and financial costs that a dismissal “under the article” may entail if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best option to terminate the employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if the employee disputes it.

I offer my clients such arguments that can help convince the employee of the need to sign an agreement on termination of the employment contract: informing the employee that the employment contract will be terminated, in the best case, the employee will be reduced. However, even a reduction is not a good reason to terminate an employment contract for demonstration to a future employer. Another thing is the agreement of the parties.

A potential employer will not see anything bad in him;

• the agreement of the parties allows to save the employee’s time, which can be spent, for example, when reducing the number of employees or staff;
• an agreement between the parties allows us to agree on the amount of “compensation” for dismissal, as well as on the procedure for its payment.

Staff reduction (clause 2 of article 81 of the Labor Code of the Russian Federation)

The applicant for dismissal should be provided with a list of vacancies that correspond to his competence - for example, a similar position, but in the regional branch of the company. If an employee refuses to move, a written refusal must be received from him. The employer must notify the employee of the reduction in writing at least two months in advance and not open a reduced position within a year.

1. When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; dismissed before the deadline specified in Part 2 of Art. 180 of the Labor Code of the Russian Federation; the employee is dismissed on time, but during his illness, which is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for expressions of consent to vacancies or refusal of them, they are already issuing an order for dismissal; they do not care about the real basis for the reduction; they do not approve the new staffing schedule on time; the provisions of Art. 179 of the Labor Code of the Russian Federation on the pre-emptive right to leave at work; misses in the standard documentation.

For these and other reasons, there is still a high risk of declaring the dismissal to reduce staffing illegal and reinstating the employee at work, as evidenced by numerous judicial practice.

So, for example, in a labor dispute, the court concluded that the employee was dismissed before the expiration of the two-month period established by labor legislation from the day of notification of the impending reduction. In this connection, the court recognized the dismissal of the plaintiff employee under paragraph 2 of paragraph 1 of Art. 81 TC illegal, reinstated the plaintiff in the organization in his former position (decision of the Yugorsky District Court of the Khanty-Mansiysk Autonomous Okrug - Ugra (published on November 27, 2012).

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

Indeed, downsizing is one of the methods of dismissal that requires strict adherence to procedures. The employee is notified in writing about the upcoming reduction in 2 months, during which time he is required to offer in writing any vacant or newly created vacancy, the duties for which he can fulfill taking into account his qualifications. It is important to offer not only similar positions, but also subordinate positions. But positions in other regions are offered only if it is enshrined in a collective agreement or other local regulatory act of the company.

Also, one should not forget about the preemptive right to leave certain categories of employees at work.

Absenteeism (Sub. "A" Section 6, Article 81)

If the employee is absent from the workplace during the whole working day or for more than four consecutive hours, the dismissal occurs automatically. It is more difficult to dismiss an employee who is often late, but this is also possible if the start time is specified in the internal labor regulations, in the employment contract, as well as in the collective agreement, if any, in the company.

Natalia Plastinina, Head of the Legal Support Sector:

We note right away that one can never wait for such a reason from the average moderately responsible employee. Delays do not form such a reason for dismissal as absenteeism, since the time of absence of an employee does not reach 4 or more hours in a row. In addition, there is a high risk of improper fixation of the event, improper qualification of absence as absenteeism, improperly prepared documentation for the formation of the basis provided for in paragraphs. “A” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation.

Cons of dismissal on this basis:

• low probability of occurrence of the base itself;
• a high probability of errors in the dismissal procedure on the named basis;
• a high risk of contesting the dismissal due to its injustice, illegality, as well as to exclude an unseemly entry in the workbook;
• in those organizations where there is no full-time lawyer, and the personnel management is entrusted to the secretary, all the above risks of erroneous actions of the employer increase significantly. The risk of recovering a dismissed truant is also increasing.

As practice shows, the regulatory authorities, which check employers and can recognize the dismissal order for truancy as illegal, do not sleep.

What was done in Altai Territory State Labor Inspectorate. As a result of the audit, carried out on the basis of a citizen’s appeal, the state labor inspector found that in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not request a written explanation from the employee on the fact of absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. “A” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation.At the request of the state labor inspector, the order for dismissal by the employer was canceled. For violation of labor law, the director is brought to administrative responsibility in the form of a fine.

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

Even if the employee was absent from work for the amount of time necessary for absenteeism, it is hardly possible to automatically dismiss him. In any case, this will require strict adherence to the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the restoration of the dismissed person with accrual of payment of time for involuntary absence.

Inconsistency of the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation).

The employer has the right to change the job description of the employee, warning him for two months. Then, in additional agreements to the employment contract with the employee, conditions are prescribed on the basis of which the indicators are considered to be unfulfilled. The values \u200b\u200bof indicators can be taken according to any schedule: once a week, month, quarter. If the employee fails, he is reprimanded, severely reprimanded, and then dismissed.

Natalia Plastinina, Head of the Legal Support Sector:

Paragraphs 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - these are two different reasons.The basis of clause 3 - “the employee’s inconsistency with the position or work performed due to insufficient qualifications confirmed by the results of certification” - is difficult to achieve in practice due to the fact that this ground does not occur. For its application, the employer will first have to approve the local act on certification (see part 2 of article 81 of the Labor Code of the Russian Federation), give employees time to prepare. Create a commission. Correctly fix the procedure and results. Give iron arguments for the inconsistency of the employee of the post. And after that ...

To offer the employee another job in his own company! This requires the employer part 3 of article 81 of the Labor Code of the Russian Federation. That is, all the above actions may not lead to the end of the employment relationship if the employee agrees to a transfer to another position. Was the game worth the candle?

Clause 5 h. 1 Article 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - "repeated non-performance by an employee without good reason of labor duties if he has a disciplinary sanction." There are some flaws in the job description changes described by Forbes Magazine: will the employee further challenge these changes? If, for example, you make the duty to sweep 4 production workshops in the job description of a building maintenance engineer, it seems that the court does not recognize such a change as legal and justified. And he will indicate to the zealous employer the correct guide in this matter - ETKS. In addition, we should not forget about the systematics of misconduct by the employee, which may not even form after the first punishment.

Although both bases may be applicable, their elusiveness and high risk of contestation do not make them popular.

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

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

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

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

Thirdly, to apply such a reason as a mismatch of the position (clause 3 of article 81 of the Labor Code of the Russian Federation), certification should be carried out, only a negative conclusion of the certification commission can become the reason for dismissal of an employee.

Non-compliance with the internal labor regulations (Article 192 of the Labor Code of the Russian Federation)

Information about the smoking ban, the need to follow the dress code should be spelled out in the internal labor regulations, which all employees sign when they are hired. It must be understood that it is not enough for the employer to simply indicate “follow the dress code”. He is obliged to convey in writing to his employees what kind of clothes the authorities consider suitable for working with a detailed description of the style and color of the clothes.

Natalia Plastinina, Head of the Legal Support Sector:

Of course, there is no such reason in the Labor Code of the Russian Federation. However, there is a previously considered basis provided for by paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - repeated failure to fulfill obligations. Yes, indeed, an employee can be punished both for smoking on the territory of the employer and for non-observance of the dress code under the following conditions:

• the employer has all the local acts that these requirements are recorded accurately and clearly;
• the employee is acquainted with the indicated acts for signature.

In case of violation by the employee of the specified requirements for the behavior of employees, the employer must in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation to punish an employee. And only after the appearance of systematicity (two or more violations within a year) will he be able to dismiss an employee under paragraph 5 of paragraph 1 of article 81 of the Labor Code of the Russian Federation.

In my opinion, the most optimal option for parting with an employee for simplicity and validity among the proposed ones.

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

If in this case we are talking about termination of the employment contract on the basis of clause 5 of article 81 of the Labor Code of the Russian Federation (repeated non-fulfillment by the employee of work duties without good reason if he has a disciplinary sanction), then non-compliance with the dress code or smoking ban are not the best reasons for dismissal, as they are not related to labor duties. Dismissal according to Clause 5, Article 81 of the Labor Code of the Russian Federation is carried out when there has been a violation (non-compliance) of the provisions of the job description or employment contract.

Alcoholic intoxication (sub. "B" p. 6 of article 81)

A single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication is sufficient at his workplace in the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a labor function. But in order to use this method, the employer will have to provide the results of the medical examination of the employee as evidence.

Natalia Plastinina, Head of the Legal Support Sector:

It is not always necessary to apply medical examination data (medical examination) to apply this basis.The state of alcoholic or narcotic or other toxic intoxication can be confirmed by both a medical report and other types of evidence, which should be accordingly assessed by the court (paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Of the Russian Federation ”(hereinafter referred to as Decree of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunken employee flatly refuses to undergo a medical examination (including in order to further challenge his dismissal), the employer will have to collect other evidence. They may become (inclusive , but not limited to):

1. the act of finding intoxicated;
2. certificate of refusal of medical examination;
3. notice of explanation;
4. an act of failure to provide explanations (drawn up after two days given to the employee for this);
5. etc.

As practice shows, with the correct and accurate approach of the employer to the preparation of documentation in such cases, the employee who appears at work while intoxicated cannot successfully challenge his dismissal.

So, in a dispute on the recognition of dismissal as unlawful, the employer confirmed the fact that the plaintiff was intoxicated at the workplace with an act on being intoxicated; the act of refusal to undergo a medical examination; protocol on an administrative offense, explanations of witnesses. The court considered this sufficient evidence of the fact that the employee was intoxicated, and, therefore, a sufficient basis for termination of the employment contract under paragraphs. "B" p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation. Having not found any violations during the dismissal procedure, the court refused to recognize the dismissal as unlawful (decision of the Zheleznodorozhny District Court of Yekaterinburg dated March 21, 2012; the decision of the Sverdlovsk Regional Court dated June 21, 2012 in case No. 33-7104 / 2012.

But the most interesting question is different: will the employer wait for the employee to appear drunk at work?

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

In order to dismiss an employee for appearing at work while intoxicated, the presence of the results of a medical examination is desirable, but not necessary. An employee has the right to refuse to proceed to a medical institution. In this case, the employer has the right to confirm the fact of intoxication by an act that describes the signs of intoxication.

Disclosure of professional secrets (sub. "C" p. 6 of article 81)

The disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his labor duties, including the disclosure of the personal data of another employee, is a serious violation of labor duties. At the same time, the concept of personal data is very broad, and theoretically, you can even dismiss for sending a colleague's home phone number to someone.

Natalia Plastinina, Head of Legal Support:

In accordance with the provisions of Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the event that the information has actual or potential commercial value due to its unknownness to third parties, it is not legally available to it, and the information owner takes measures to protect its confidentiality. Information that cannot constitute official or commercial secret is determined by law and other legal acts. Persons who illegally obtained information that constitutes official or commercial secret are obligated to compensate for the losses incurred. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the terms of the employment contract, and on contractors who did so in violation of the terms of the civil law contract.

According to paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 in the event of an employee contesting the dismissal under paragraphs. “C” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence that the information that the employee has disclosed, in accordance with applicable law, relates to state, official, commercial or other secret protected by law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information. It is with this evidence that the employer, as a rule, has problems. Before applying the grounds for dismissal provided for in cl. “C” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation, it should be clarified:

• whether the organization has local acts defining information as a secret protected by law;
• whether the employee is familiar with these acts;
• whether he undertook not to disclose certain information;
• did the leak really come from this employee and how is this confirmed?

Remember: an ordinary worker may not know the provisions of regulatory acts, laws of the Russian Federation. He may be legally completely illiterate. And only if he is familiarized by the employer with a local act based on the norms of laws, he will already be recognized as aware that certain information is a secret. And it will be possible to punish him for disclosure only after he signed a non-disclosure obligation. But the presence of all these documents, as practice shows, does not minimize the risk of recognition of dismissal on the above grounds as unlawful.

So, the court, considering the case with similar circumstances under consideration, considered that the employerno evidence of violation by the employee of his duties, in particular regarding non-disclosure of trade secrets. The court indicated that the employer's arguments were presumptive and could not serve as the basis for disciplinary action in the form of dismissal. Since there is no evidence unconditionally indicating that the employee has disclosed information relating to the commercial secret of the company, the court recognized the dismissal under paragraphs. “C” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation is unlawful and has changed the wording of the grounds for dismissal in paragraph 3 of part 1 of article 77 of the Labor Code of the Russian Federation (of one’s own will) (decision of the Leninsky District Court of Perm dated April 6, 2012; appeal ruling of the Perm Regional Court of October 3, 2012 in case No. 33-8900).

Change in basic working conditions (Article 74 of the Labor Code of the Russian Federation)

The employer has the right to change the work schedule or conditions of remuneration, warning employees for two months. And here a huge space of opportunities opens for the employer, and employees are forced to either agree with them or quit on their own. For example, an objectionable employee can be offered piece-rate wages, transfer production to a round-the-clock schedule, and then many employees will prefer to abandon night shifts.

Natalia Plastinina, Head of the Legal Support Sector:

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

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

• written review of upcoming changes;
• written justification of the reasons for the changes introduced;
• job offers during the entire warning period;
• the correct fixation of all consent and refusals of the employee (from signing, from vacancies, etc.);
• dismissal no earlier than the expiration of the warning period;
• payment of severance pay in the amount of two-week earnings (Article 178 of the Labor Code of the Russian Federation).

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

Given the high risk of contesting dismissal on the basis under consideration, it is worth considering the choice of this basis for dismissal.
As an example of a successful contest, one can find the decision of the Koryazhemsky city court in case No. 2-12, in which the court did not recognize that the employer had grounds to change the terms of the employment contract and, therefore, the grounds for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work in connection with a change in the terms of the employment contract specified by the parties). Until the court resolves the dispute, the defendant canceled his order and reinstated the worker at work).

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

The application of Article 74 of the Labor Code of the Russian Federation is far from possible in all cases. As a general rule, a change in the terms of an employment contract (and wages, a work schedule are essential terms) is made only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). And only if the technological or organizational working conditions change, the employer has the right to apply the provision of Article 74 of the Labor Code of the Russian Federation and unilaterally change the terms of the labor contract, warning the employee about this for two months. It should be borne in mind that in the event of a dispute, the obligation to prove the fact of changing technological or organizational working conditions lies with the employer.

Non-fulfillment of labor duties (Clause 5, Article 81 of the Labor Code of the Russian Federation).

Most often, the employer applies this wording when other legal methods of dismissal have already been exhausted or are not suitable. In this case, the employee may be given an impossible task, and then require an explanatory note on the reasons for non-performance.

(see the comment above - “Non-compliance with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”)

Unsatisfactory certification results (Clause 3, Article 81 of the Labor Code of the Russian Federation). The company should have a provision on certification, and the certification committee should include persons with a professional understanding of the work of employees subject to certification. The commission reflects all decisions in the protocol. If the results of the audit are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the new job offered to him in the same company that is qualified or lower than her and with less earnings.

(see the comment above - “Non-compliance with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”).

Natalia Plastinina, Head of the Legal Support Sector:

Carrying out a general analysis of the reasons presented by the magazine, we can conclude that each of them has its own disadvantages and entails the occurrence of certain risks. Even proper observance of the dismissal procedure does not always entail the recognition of dismissal as legal and reasonable. Employers can be advised to use the simplest grounds and legally laid-off procedures in their activities. For example, dismissal for repeated non-performance 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) or dismissal for an employee to appear at work (at his workplace or in the territory of the employer organization or the facility where, on behalf of the employer, the employee must perform the labor function) in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b" p. 6 part 1 of article 81 of the Labor Code of the Russian Federation).

• HR administration and labor law

Dismissal without explanation for most employees is a rather strange and most often unexpected event that scares them and causes a lot of misunderstanding. And they have a question about whether such dismissal is possible and does the law allow termination of the employment contract without sufficient grounds? Is it possible to challenge the dismissal for no reason and how to do it right? This and much more, concerning dismissal without explanation of reasons, will be discussed in today's article.

Some reasons for dismissal.

Many probably know that it can be torn apart by the parties for a variety of circumstances. In general, all of them can be divided into three large groups - according to the decision of the employer, on the initiative of the employee, and for reasons beyond the control of the parties.

Consider and characterize each of them in more detail. For example, a dismissal on the initiative of the boss may include a gap due to the following reasons:

1. Committing employee guilty acts - theft, insults, fight and so on;
2. Constant absenteeism;
3. Untimely or poor-quality work;
4. Inconsistency of the qualification of the employee of the occupied vacancy and so on.

There are other reasons for dismissal, in which the employer unilaterally has the right to terminate relations with the employee. Their full list is listed in the Labor Code of the Russian Federation.

The reasons for which the employee can terminate the contract should include only personal desire. However, at the same time, a personal desire can be justified by a variety of circumstances, which the employee is not obliged to report to his superiors.

For example, an employee is not satisfied with the work schedule, it seems to him that the salary is very low or there is no career opportunity. In addition, there may be other reasons, for example, the employee made a more favorable job offer. All these and many other reasons can be reduced to dismissal at will.

Separately, it is worth mentioning the dismissal due to circumstances beyond the control of the parties, for example, due to liquidation of the state. Dismissal is also possible for other reasons provided by law.

In addition, they may be terminated by agreement of the parties. For example, if the employer is not satisfied with the employee for personal reasons, and the employee benefits from a material dismissal, since usually such a break in relations between the parties is accompanied by the payment of additional monetary compensation to the employee.

In general, the law has more than 30 reasons for dismissing an employee. But the law does not speak in the most accurate way about firing an employee without explaining an act. That is why this topic is quite difficult and incomprehensible for a large number of both workers and employers.

And precisely because of ignorance or misunderstanding of the law, it is most often violated. Although situations of intentional violation of the law are not uncommon at the present time. In view of this, many employers dismiss the employee for no reason, and the latter do not assert their rights.

It is important to understand that unlawful dismissal or dismissal carried out in violation of the standards entails not only the responsibility of the manager or legal entity, but also the opportunity to recover at the workplace for the employee.

In addition, the employer will be required to pay a fine, the amount of which in each situation is set individually, as well as to pay the entire fee due to the employee for the duration of the downtime. In addition, the employee may demand the payment of moral compensation, as well as the costs of litigation (for example, compensation for hiring a lawyer and so on).

For employers, in turn, it should be noted that the dismissal of an employee for no reason can develop not only into administrative, but also into criminal liability. Therefore, it is important to fire an employee correctly and in compliance with all legal norms. ,

Is dismissal always without reason within the law?

You can’t dismiss for no reason.

For many workers, dismissing without a reason is at least strange. And it is quite justified. Indeed, Article 81 of the relevant code clearly outlines the whole range of reasons why an employer can fire an employee.

And dismissal without reason is not generally provided for by the provisions of the law.

However, dismissal without reason is still considered in article 278. It is, first of all, an additional reason for the dismissal of a certain category of workers, namely, the management team.

That is, if there is sufficient reason for the dismissal of the head of the enterprise (the reasons for the dismissal of this category of workers differ from those provided for in Article 81), then such dismissal is possible. However, this requires a certain set of circumstances.

In order to fire the head of the company, the following reasons may be put forward:

1. Change of the founder or owner of the company;
2. Manager making decisions that have harmed the organization;
3. Committing guilty acts, for example, disclosure of trade secrets;
4. An employee managing a kindergarten or school has committed an immoral act;
5. or branch completely and so on.

Thus, the grounds for dismissal of an ordinary employee and management staff overlap to some extent, however, there are other, more significant and extensive reasons for dismissing the head of the company, due to which the employee can be dismissed without explanation.

Based on this, we can draw the appropriate conclusion: only the head can be dismissed for no reason, and only if there are sufficient grounds for this.

An ordinary employee cannot be terminated without a reason. Moreover, these reasons must comply with those specified in the Labor Code.

Thus, if you think that you were dismissed for no reason or due to inappropriate reasons, you can contact your boss for an explanation of the situation. Or to complain to the higher management of the company - no one needs conflicts with the law and most likely, the issue can be resolved at the initial stage under the most favorable conditions for both parties.

Termination Procedure

The employee is given a work book.

The procedure for termination of employment may vary depending on which category the employee leaves. In general, the standard gap consists of the following points:

• the decision of one of the parties (or both at once) on the need to terminate cooperation;
• publication of the relevant order and notification of the employee against signature;
• all accounting calculations;
• issuance of funds due to the employee;
• making appropriate entries in the employee, his personal file and other regulatory accounting documents;
• issuing to the employee all the documents and the work book.

If necessary, the procedure may vary, depending on why the employee quits. For example, when dismissing due to the commission of guilty acts or disciplinary offenses by an employee, the manager will need to additionally collect evidence. That is, sufficient grounds for termination of the employment contract.

In addition, it may be necessary to collect a commission to assess the qualifications and competence of the employee.

Thus, we can conclude that the procedure for termination of relations, regardless of the reasons for which it is conducted, is generally quite standard and differs only in some nuances that may be required in a particular situation or circumstances.

Can a management decision be challenged?

The employee can go to court.

For many workers, the question of whether it is possible to challenge the decision of the management team on the need for dismissal or on the dismissal that has already taken place is interesting.

It is impossible to unequivocally answer this question, so we will try to understand in more detail and consider all possible options for what is happening.

For example, if the dismissal was carried out for insufficient reasons (the employee was late for work for 10 minutes, and they fired him for), or if during the procedure violations were discovered (an act of administrative violations or of guilty actions was not drawn up), then Dismissal may well be considered illegal.

But in the case when the dismissal occurs according to the decision of the employee himself and everything is done correctly from the legal side, it is practically impossible to challenge such termination of relations.

In any case, if the employee believes that he was dismissed illegally or without sufficient justification, then he has the right to file a complaint or request for reinstatement at the workplace with the relevant competent authorities.

In particular, an employee may complain to the following organizations:

1. The prosecutor's office of the Russian Federation;
2. Labor Inspectorate;
3. Rospotrebnadzor and so on.

The choice of authority depends not only on the circumstances of the incident, but also on the preferences of the employee. Some begin to file complaints with the most “loyal” organizations, and some turn immediately to higher authorities.

On the whole, both this and that approach are quite effective, the difference is only in the response time and the methodology of this or that institution.

There are situations in which you can try to resolve the matter peacefully, for example, if you “fell under a hot hand” or for the first time committed a serious act, you may well try to negotiate with your superiors and continue working in the company.

For example, the perpetrator of a guilty offense may promise that this will not happen again, and if that happens, he will quit of his own free will. Often, such solutions are the most profitable and convenient and allow you to avoid unnecessary conflicts and litigation.

From this video you will learn about the reasons for dismissal.

Form for receiving a question, write your

When a person works under an employment contract, he has certain rights and obligations. And what rights does the employee have upon dismissal?

In Art. 77 of the Labor Code of the Russian Federation all reasons for termination of employment are given. It:

• agreement of the parties. That is, the employee and the employer agree that the employment relationship ceases under certain conditions. These conditions are reflected on paper, which is signed by both parties;
• termination of the employment contract. The exception is when the contract has expired and the employee continues to work. However, the employer did not demand termination of the relationship;
• employee desire. He must write a statement in which he will reflect his desire. It is not necessary to indicate a reason. But if you need to quit urgently, then the reason must be indicated;
• employer initiative. Dismissing just like that, at the request of the employer, is impossible! In Art. 81 of the Labor Code of the Russian Federation, clear reasons are given for terminating relations on the part of the head. Any basis must be supported by documents;
• transfer of an employee to another employer or to another position (elective). Written consent must be obtained from the employee;
• the employee’s refusal to fulfill his duties due to the fact that the employer has changed working conditions;
• refusal of the employee from his labor duties due to a change of ownership of the property of the enterprise;
• other grounds listed in Art. 77 of the Labor Code of the Russian Federation.

The employer must comply with the rights of the employee when dismissing for any of the above reasons. Otherwise, the employee may sue and recover at the workplace. This will entail the payment of salaries for involuntary absenteeism, a fine for non-compliance with the norms of the Labor Code of the Russian Federation, and also, possibly, the payment of moral damage to the employee.

What documents are signed upon dismissal by an employee

When an employee leaves, regardless of the reason, he must sign quite a lot of documents. Least of all - upon dismissal at will. In this case, he signs only the termination of employment relationship.

But there are other documents that he must sign. Their complete list depends on the reason for dismissal. It could be:

• notice of liquidation of the enterprise;
• staff reduction notice;
• termination agreement;
• notification that he did not pass the mandatory certification;
• a written offer from the employer about other vacancies;
• a written offer of the employer to move to another locality;
• the act of the employee committing guilty acts or omissions that led to an injury at work or other unfortunate consequences;
• inventory act;
• the order of dismissal on one of the grounds given in Art. 77 Labor Code of the Russian Federation;
• dismissal order;
• other documents that need to be issued to the employer in order to comply with all the rules for dismissal of an employee.

By signing documents, the employee does not give his consent to the dismissal, especially if it does not occur on his initiative. The signature of the employee on one or another personnel document indicates that he has familiarized himself with it. Such a signature does not bear any consequences. The exception is the dismissal order.

If the employee does not agree with him, then you do not need to sign it. This document, signed by both parties, is a normative document for both parties on the legality of the termination of the employment contract. If the employee does not agree, he has the right to file a claim with the court or the labor inspectorate. He also has the right to seek justice through a union, if such an organization exists in the enterprise.

What documents should be issued upon dismissal

When an employee's labor activity at a given place of work is terminated, for various reasons, he must receive certain documents in his hands. It:

• his work book. It must be properly framed. It should contain the following entries:
  • date the employee was admitted to a particular organization;
  • name of this organization;
  • position for which the employee was accepted;
  • details of the order on admission to the state;
  • records of employee movements within the organization, if any;
  • date of dismissal;
  • reason for dismissal;
  • details of the order on the termination of labor relations.

All these notes must be supported by the signature of the staff or other employee responsible for the design of work books. If an error “creeps in” into this document, it will be necessary to make a correction through the personnel department. And this is a rather tedious procedure.

• certificate in the form of 2-personal income tax for the last 2 years. It is necessary for:
  • future employer to know how much tax has already been deducted to the budget. This is necessary to provide the employee with a standard or property deduction, if he is entitled to them;
  • registration at the employment center to recognize a citizen unemployed and to accrue unemployment benefits.
• help in the form of 4-FSS. It is necessary for calculating hospital payments at a new place of work. Since sickness benefits depend on the employee's length of service, it is in this context that such a certificate is necessary for its continuity.
• other documents, at the written request of the employee. If an employee who is laid off or resigns needs any documents related to his labor activity with this particular employer, he can write a written request in the name of the head. Deny him do not have the right! Within three days after receiving the request, the documents must be ready. All documents are provided in the form of copies certified by the seal of the employer. These can be copies:
  • an order for employment;
  • dismissal order;
  • salary certificates for the last 2 years;
  • cards in the form of T-2, indicating all the movements of the employee within the enterprise;
  • orders to change his salary in one direction or another;
  • information about all the holidays;
  • other documents.

Does the employer have the right to refuse dismissal

In Art. 80 of the Labor Code of the Russian Federation, it is said that an employee has the right to quit at his own request, but having warned the employer about this in advance - at least 2 weeks in advance. Moreover, the employer has no right to prevent him from leaving. Every person has such a constitutional right - the right to work. By hindering the dismissal of the employee, if the latter expressed his desire in writing and within the time period established by law, the employer violates his right to work.

Another thing is if the employer refuses to accept the application. Then it is necessary:

• submit your application through the secretary. To do this, prepare 2 copies of the application. On one that remains with the employee, the secretary must put the number of the incoming document and the date of adoption;
• send an application by registered mail with a notification. When the notification comes back to the applicant, it will indicate the date of its receipt and the signature of the person who received it.

In the application, the employee indicates the date on which he quits. It is from this date that he has the right not to go to work. But provided that he has in his hands evidence that the employer has been duly notified - through the secretary or by mail. The employer also has no right not to give the employee his work record. This is fraught with unpleasant consequences.

Rights of the employee upon dismissal of his own free will

Each employee has the right to quit his job on his own initiative. However, in Art. 80 of the Labor Code of the Russian Federation it is said that he must warn the employer in writing about his departure 2 weeks before the expected date. It is from that date that he will indicate in the application that the employee has the right to no longer go to work precisely to fulfill his labor duties. He can appear at the workplace only to obtain full payment and documents. But they must be issued on the last business day. An employer does not have the right to refuse to dismiss his employee or to postpone the date of termination of employment on his own initiative to another number. But at the same time, the employee must make sure that the employer is duly notified of his departure. If the employer will prevent the dismissal of his employee, the latter has the right to contact the union or the labor inspectorate.

Employee rights upon dismissal at the initiative of the employer

In Art. 81 of the Labor Code of the Russian Federation, the reasons are given for the employer to terminate relations with his employee. This list is exhaustive and not subject to judicial review.
The employee dismissed by the employer has the right to:

• payment of severance pay in the event that the employee is dismissed due to liquidation of the enterprise or to reduce staff. In other cases, such a benefit is not provided for in the Labor Code of the Russian Federation. But it can be spelled out in a collective agreement;
• payment of wages for hours actually worked from the beginning of the month to the date of dismissal;
• receiving compensation for all holidays that he did not have time to spend on the current working year;
• receipt of all documents, including a work book and other certificates that may be needed at a new place of employment.

The rights of the employee on a trial period upon dismissal

The employer has the right to appoint a probationary period to the newly hired employee. The employee has the right, during the passage of such tests, to quit at his own request. But the employer also has the right to terminate employment with such an employee. This is possible if the boss is not satisfied with the results of passing brand new tests. Moreover, any comment should be made in writing.

The employee has the right to comply with all the norms of the Labor Code of the Russian Federation. If he quits himself, the warning period is 3 days. He also has the right to full payment for hours worked and compensation for several days of unused vacation. If the employer is the initiator of the dismissal, then he must also notify the employee 3 days in advance of the impending dismissal. The notice must be in writing. In addition, the employee has the right to know the reason for his dismissal during the probationary period. That is, the employer must explain the criteria for evaluating the work of this employee, and why it is considered unsatisfactory.

Protection of the rights of workers upon dismissal, where to go

If the employee believes that his employer violated his rights upon dismissal, he has the right to protection. He can contact:

• to a trade union organization, if any, at the enterprise. But, you need to do this until then, until he was fired;
• to the labor inspectorate. You can write a written appeal, describe in it the essence of violations. Upon the fact of the complaint, an audit will be carried out, evidence of the employer's guilt or evidence of the absence of violations will be collected. The employee will be notified in writing of the results. If violations are found, the employer will be held accountable. Circulation term - 1 month from the date of dismissal;
• to the prosecutor’s office. You can also write an appeal. This can be done in parallel with the filing of a complaint to the labor inspectorate or in the event that the inspectors did not find violations, and the employee believes that his rights have been violated;
• to court. The term for going to court is also 1 month from the date of unlawful dismissal. But the minus is that the employee will have to independently collect evidence of violation of his rights by the employer.

The right to work is guaranteed by the Constitution of the Russian Federation. If the employer violates this right, the employee can apply for the protection of his rights to the state body that oversees the implementation of the norms of the Labor Code of the Russian Federation. Such a body is the labor inspectorate. If the decision of the inspectors does not suit the employee, he can go to court.