home > All about plumbing > How to dismiss an employee without his desire according to the law: for LLCs and individual entrepreneurs. Dismissal of violators of labor discipline and unsuitable workers. Dismissal in connection with the refusal of the employee to continue work in connection with a change in the working conditions determined by the parties

How to dismiss an employee without his desire according to the law: for LLCs and individual entrepreneurs. Dismissal of violators of labor discipline and unsuitable workers. Dismissal in connection with the refusal of the employee to continue work in connection with a change in the working conditions determined by the parties

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

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

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

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

1. Dismissal due to unsatisfactory test result

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

Applications

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

Controversial points

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

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

Established practice

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

Example 1

Collapse Show

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

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

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

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

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

Applications

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

Controversial points

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

Correct Application Algorithm

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

Established practice

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

Arbitrage practice

Collapse Show

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

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

3. Reducing the number or staff of employees

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

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

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

Applications

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

Controversial points

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

Correct Application Algorithm

Issue an order to reduce the number and / or staff.
Approve the new staffing table with its introduction into force from a certain date (not yet arrived).
Determine the pre-emptive right to leave at work (it is considered both before the issuance of an order to reduce, and until the dismissal itself - if new circumstances arise that indicate that the dismissed employee has a pre-emptive right to leave at work). If the employee is a member of a trade union, take into account Art. 82 of the Labor Code of the Russian Federation.
Notify in writing (under the personal signature) of the laid-off employees of the upcoming dismissal at least two months before the day of dismissal; in case of mass dismissal - not less than three months.
notify public service employment no later than two months, and in case of a massive reduction - no less than three (clause 2, article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1 "On employment in the Russian Federation"). If there is a trade union organization at the enterprise, notify the trade union within the same time frame (part 1 of article 82 of the Labor Code of the Russian Federation).
Notify in writing of the availability of suitable vacancies at the enterprise with a proposal to the dismissed employee to fill them. However, vacancies must be offered during the entire two-month notice period for each new vacancy.
Receive a written refusal from the employee of the proposed vacancies. In case of consent to take one of the vacancies, stop the procedure for dismissal by reduction and transfer to the position (profession) chosen by the employee.
Dismiss the employee in the usual manner on the date specified in the notice of reduction and upcoming dismissal (Articles 84.1 and 140 of the Labor Code of the Russian Federation).

Established practice

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

Arbitrage practice

Collapse Show

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

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

4. Dismissal for non-compliance

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

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

Applications

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

Controversial points

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

Correct Application Algorithm

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

the decision of the attestation commission confirming the above fact;
an offer in writing of another job and the employee's refusal of it (in writing). staffing confirming the availability of vacancies;
no fault of the employee in improper performance job duties, i.e. the employee does not correspond to his position due to insufficient qualifications, and this is precisely what prevents him from fulfilling his duties. Qualification consists of at least the following elements: knowledge, skills, skills that are enshrined in the state educational standard by specialty in the qualification directory.

Established practice

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

Arbitrage practice

Collapse Show

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

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

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

5. Repeated dereliction of duty

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

Applications

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

Controversial points

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

Correct Application Algorithm

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

Arbitrage practice

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33-35 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. good reasons is understood as non-fulfillment of labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

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

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

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

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

Arbitrage practice

Collapse Show

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

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

6. Absenteeism and other guilty single actions of the employee

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

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

Applications

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

Controversial points

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

Correct Application Algorithm

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

Established practice

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

7. Termination of relations with the head

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

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

Applications

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

Controversial points

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

Correct Application Algorithm

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

Arbitrage practice

Collapse Show

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

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

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

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

Footnotes

Collapse Show

The situations are different. New top, for which the headhunters fought so hard, does not cope with its duties or does not suit the management. An old-timer of the company, who has been on the staff for several years, has become a drone and openly neglects his duties. or leaves for meetings with a client, and returns with a new manicure. And the programmer suddenly “fell ill”, and returned from the hospital tanned.

We are talking about cases where employees know that it would be better to leave, but they take advantage of the fact that the Labor Code has made the official dismissal process quite difficult for the employer. But loopholes that still exist in the code come to the aid of HR specialists and employers.

Dear Mistake

Let's say right away that asking or forcing an employee to sign a statement of their own free will is an effective, but absolutely illegal option. It costs more to use it. Because even after signing such a statement, the employee can go to the labor inspectorate and sue the company:

compensation for moral damage,
compensation for forced downtime (based on the average employee salary),
achieve reinstatement in the workplace.

And history knows many examples when an employee won the court.
Also, the company will have to pay an administrative fine for violation of labor laws - up to 50,000 rubles.

Fire an unwanted employee? Legally!

There is no need to invent and contrive! The Labor Code already spells out legal ways of dismissal at the initiative of the employer. They should be used if the employee works in bad faith.

By mutual agreement

Article 78 of the Labor Code of the Russian Federation consists of just one sentence: “The employment contract can be terminated at any time by agreement of the parties to the employment contract,” and gives vast expanse employer.

This article is the best way for the employer to leave and is suitable if there are no official reasons for dismissal, but there is a reason. It is she who is discussed with the employee face-to-face.

However, the worker usually expects compensation for forced dismissal Or at least a long paid vacation. Therefore, the employer needs to prepare for additional material expenses. But, having documented the dismissal by agreement of the parties, the employer minimizes the risk that the employee will go to court.

Himself refused

Article 74 of the Labor Code of the Russian Federation provides that the employer can change the work schedule and working conditions (for example, introduce piecework wages or transfer production to a round-the-clock schedule). Also, the employer can change the location of the company (from the center to move to the outskirts) or change the owner, or reorganize.

The task of the employer is to notify employees of the reasons and changes in time, namely in writing and no later than two months in advance. And employees have to either accept the changes or quit.

You are not on the list

It is impossible to reduce the staff by a specific unit without explanations and alternatives. The employer must offer the employee a list of other vacancies and not just any (from a manager to couriers or cleaners), but corresponding to his competencies. The employee refused - they documented this and made a reduction.

Unsuitable for professional

Inadequacy of the position (Article 81, paragraph 3) is another loophole for the employer.

Upon hiring, each employee must sign a job description. But the employer has the right to change it over time, warning the employee 2 months in advance. For example, introduce individual work criteria: processing a certain number of documents, fulfilling a sales plan, etc. In an additional agreement to an employment contract, specify on the basis of what conditions the employee’s indicators are considered unfulfilled, and then dismiss.

Didn't get certified

Another way to prove the incompetence of an employee is to conduct. But for the employer, this is an extreme measure due to labor costs and high cost.

Certification is carried out not only for an objectionable employee, but also for others in a similar position. It is necessary to assemble a commission of people who have a professional understanding of the work of employees subject to certification. Bad results - the employer has the right to fire the employee, but only if he refuses another vacancy in the company that matches his qualifications.

Absenteeism and lateness

One absenteeism of an employee (from 4 hours in a row or throughout the working day) is enough to fire him, as this refers to a gross violation of labor duties by the employee (Article 81, paragraph 6).

It is more difficult to fire an employee who is constantly late, but it is also possible. You cannot be fired for a single delay, you will need to collect several explanatory notes about being late and impose a disciplinary sanction. At the same time, the work schedule must be specified in the internal labor regulations, in the employment contract.

Intoxication

For dismissal, one is also enough - alcohol, drugs, another toxic (Article 81, paragraph 6). But the employer will have to call an ambulance to the office before the end of the working day in order to record the intoxication of the employee and have the results of the medical examination in hand.

In addition to the law, there are also rules that the company determines itself. For example, what can be worn at work (); Can I smoke and if so, where? Such rules should be clearly described in one document, which is called the “Internal Labor Regulations”. All employees sign under it when they are hired. If an employee is notified, but has violated the rules, then they can be fired.

Dereliction of duty

Paragraph 5 of Article 81 of the Labor Code of the Russian Federation allows the dismissal of an employee if he repeatedly fails to fulfill his duties.

Here it is worth mentioning a method that is unethical, but is used by some employers. To fire an objectionable employee, the employer can “overwhelm” him with tasks that cannot be completed within the specified time, and then ask him to write an explanatory note about the reasons for non-fulfillment.

Disclosure of the secret

If an employee becomes aware of a secret protected by law (state, commercial, official and other), including the disclosure of personal data of another employee, he can be fired (Article 81, clause 6). At the same time, even the phone number of another employee can get under personal data.

But do not forget that firing an employee is still not easy. And each of the above loopholes has its own nuances. And dismissal “under the article” is an extreme measure, and it must be used when peaceful methods have not helped.

Expert comment

HR Director, Beta Press Group of Companies

As practice shows, the dismissal of an employee is far from simple and not as transparent as it seems at first glance. The Labor Code of the Russian Federation does not include many options, and all of them are aimed at protecting the employee. I will comment on the options described by the author, based on practice.

By mutual agreement- this mutual agreement is difficult to achieve, because if the employee is in conflict and does not want to leave, he will ask for considerable compensation, or simply does not want to lose his job. The method is available if there is a budget for it.
Himself refused- for the sake of dismissal of one negligent employee is too labor-intensive option. As practice shows, in reality, the changes made (moving, changing the work schedule, etc.) lead to the opposite problem, namely, employees who worked stably and quite satisfied the employer scatter.
You are not on the list- enough difficult option, since if we are talking about a negligent employee, then we obviously want to replace him, which is impossible in this option. The second point is that, as a rule, the employer is not ready to shell out for compensation, especially for those who they want to get rid of.
Unsuitable for professional- a complex system that requires constant recording of indicators that the employee regularly gets acquainted with. In the event of a sharp change in requirements, as well as dismissal in a short time (as in the example of 2 months), it can become a “red rag” for the court.
Didn't get certified- legal and effective way, which allows you to get a lot of additional benefits (diagnosing the level of knowledge of employees, recommendations for training, recommendations for raising, changing salaries, etc.). If carried out by the Human Resources Department, the costs are minimal. There are risks of litigation, but if the deadlines are met and if a complete package of documents is available, the risks are minimal.
Absenteeism and lateness It's hard enough to get fired, but it's possible. You need to remember about the pitfalls in the form of sudden sick leave, etc.
Intoxication- I will add that there are certified breathalyzers that allow you to fix alcohol intoxication, so for some companies it is more budgetary to purchase them. Another option is to offer to quit yourself or go for an examination (as a rule, in such cases, the employee leaves on his own).
Failure to comply with internal labor regulations- everything is not so simple here, and this kind of dismissal will require a lot of acts, explanatory, etc. In court, it will be quite difficult to prove that an employee came to work in a too transparent blouse.
Dereliction of duty- a difficult item to complete, since tasks must be given in a fixed form and contain certain performance criteria. The employee must have the resources necessary to complete the task, etc. Situations can be extremely controversial.
Disclosure of the secret is a difficult to prove reason for dismissal, but business is business, and occasionally such situations do occur. The main thing is that the employee’s phone should not become the reason for dismissal, since such trifles are clearly suitable for coercion to dismiss.

Despite the apparent variety of ways to dismiss, most employers tend to agree on the dismissal of their own free will, since for the employee this is a “clean” story instead of an article, and the employer does not need to collect a package of documents in order to confirm the article in case of court. Proving that the employer forced you to quit is as difficult as the opposite. But, of course, you should not resort to this method when there is a frank violation of the rights of an employee (

Secrets of dismissal of employees- this is what any employer should know and calculate, even if highly professional staff is selected in his company. When changing staff or, if necessary, for some reason, dismissing an employee who does not suit the employer, you have to look for ways to dismiss the employee.

One of the most common and humane ways layoffs - reduction of staff. From the point of view of workflow, it cannot be called fast or simple, but from the point of view of the trust of the employees themselves, this is fair to them. Yes, it needs a major overhaul. staff units companies. When they are excluded from the state (due to irrelevance, restructuring, changes in the direction of the company, etc.), the person who worked in the position is automatically dismissed. If two or more employees worked in the same position, then the question of choice arises. By agreement of the parties, everyone can be dismissed.

In any case, it is necessary to carry out such a procedure as staff reduction only in accordance with the law. Article 179 of the Labor Code of the Russian Federation contains a list of categories of workers who have the pre-emptive right to stay at work:

Employees with two or more dependents (disabled family members who are on full content the employee or those receiving assistance from him, which is for them a permanent and main source of livelihood);
- persons in whose family there are no other workers with independent earnings (various allowances, pensions and scholarships are not earnings);
- employees who have received a labor injury or occupational disease in this organization;
- disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
- employees who improve their skills in the direction of the employer on the job.

All of these items must be documented. In addition, pregnant women cannot be dismissed due to staff reduction, but must be transferred to another position; women with children under the age of three; single mothers raising a child under the age of fourteen (a disabled child under eighteen).

Before dismissing an employee, within 2 months (in accordance with Part 2 of Article 180 of the Labor Code of the Russian Federation), he must be provided with a written notice of the upcoming appointment or offer another position. With the consent of the employee, the dismissal procedure can be carried out earlier.

There are others employee layoff secrets. Especially if you want everything to go through a dismissal of your own free will. There are many ways to encourage writing an application. One of the options is to create a large workload for the employee and at the same time pay him practically nothing for it. First, overtime work and work that needs to be "urgently done tonight." With such a constant load and non-payment of completed orders, the employee will sooner or later have the idea to quit. In this case, the employer will not have to think about how to fire the employee. The second option - with an overestimated self-esteem of an employee or great ambitions, it is worth sending him to advanced training. After the course, he will independently begin to look for another job. But there is one danger in this option - an employee may look for it for a long time or try to change something in your company. The third option is the introduction for someone who needs to be fired of a strict system of control over his activities - what kind of work, how much time, where, with whom, etc. he performed.

In the Labor Code of the Russian Federation there is another way how to dismiss an employee - carrying out certification. In accordance with paragraph 3 of Article 81 of the Labor Code of the Russian Federation, it can only be carried out in those structures where there is a Regulation on certification, with which each employee is familiarized with a receipt. The regulation on certification, which was approved on October 5, 1973 by the USSR State Committee for Labor and the State Committee for Science and Technology, in this case, will help to competently build the procedure itself. As dangerous moments, it is worth considering that the employee has the right to appeal the results of the commission, therefore, it should be carried out with special responsibility and only when high level knowledge and competencies of those who are members of the attestation commission.

The reasons for dismissal, among other things, can be very different. For example, non-compliance with labor discipline, appearing at the workplace in a state of intoxication, being late, etc. All these reasons must be documented, otherwise they are worthless. It is best to conduct an examination or commission to draw up an act of violation.

As a reason for dismissal, there may also be gross violations prescribed in paragraph 6 of Article 81 of the Labor Code of the Russian Federation:

Appearance at the workplace in alcoholic or other intoxication;
- absenteeism of a certain part of the working day without warning;
- disclosure of commercial or state secrets;
- non-compliance with safety regulations, as a result of which serious consequences may occur;
- theft, embezzlement or destruction of property in the workplace.

In any case, no matter which method of dismissal you choose, remember that only one way will help to dismiss for no reason and without documentary evidence of the employee’s wrongness - termination of the contract by mutual agreement. Effective Secrets layoffs of employees clear and effective.

08.05.2014 77989

Sooner or later, any leader is faced with the need to part with an employee. A correct and timely dismissal procedure will save the company money, and the boss himself - nerves and time. But why sometimes, knowing that a break in relations is inevitable, we postpone the decision for months?

The dismissal process can be conditionally divided into three stages: making a decision to dismiss, informing the employee, legal registration of dismissal.

Decision-making

The decision to dismiss arises in the head of the leader at first unconsciously, implicitly, and matures for some time. As a rule, from the moment the idea arises that an individual employee does not belong in a company or department, until the announcement of decision months pass. Often managers delay their dismissal because they are not ready to say it out loud. The most common reasons for this delay can be identified.

“If I admit the need for dismissal, I actually admit that I made a mistake when I interviewed, I didn’t see it, I didn’t recognize it, I taught it the wrong way, I didn’t pay enough attention.”
"I'm sorry to fire him, he has a difficult financial situation."
“Reporting this is so embarrassing. I hope the situation will resolve itself."
“Problem with personnel! I’ll fire this one, but where is the guarantee that the next one will be better? Who will work?

All these reasons are a sign of excessive softness of the leader. Delaying decision-making, you deprive your business of efficiency and face the fact of lost profits due to the fault of a negligent employee.

Managers sometimes believe that it is better to have a bad employee than none at all. The directors say: “I can’t get rid of this employee now, because the rest will have to work even harder, there are not enough people.” Of course, you need to choose a convenient moment for dismissal. But there will never be enough time, a staffed staff, and there will always be a reason to say to yourself: “I don’t have time to interview candidates right now” or “Maybe he will take up his mind.” If bad employees do not want to improve, they need to be fired.

Perhaps right now there is a person in your team that you want to get rid of, but you are delaying making a decision. Analyze the behavior of the employee by refuting or agreeing with the following statements:

The employee takes a lot of time, energy, money, and his performance does not improve. He does not fulfill (does not want, cannot) the tasks assigned to him.
The employee shows disrespect for you and the team (to customers, if the position involves communication with customers).
Personally, it is uncomfortable for you to work with this person, he is unpleasant for you.
The employee is disloyal to the company, does not share its values and principles.
The employee is conflicted, regularly creates acute situations.

If the answers are ambiguous, then give the person another chance. Give him the opportunity to improve certain deadlines. If you agree with 4 statements, make a decision to break up right now and set a date for the final conversation.

Notifying an employee of a layoff

Often in the final conversation, the leader lists what the person did badly and gives negative examples. In such words lies an attempt to prove to himself and to the employee that he really does not correspond to his position. This is a serious mistake. When you voice mistakes, shortcomings, get ready that a person will defend himself - this is a natural reaction. He may not show his resentment, but, going outside the office, at every opportunity he will talk about your disadvantages and the problems of the company. Your task is to conduct a conversation so that the employee does not leave embittered and does not defame the name of the organization.

The dismissal procedure should be an additional reason for feedback and carried out according to the formula "plus-minus-plus". Start a conversation with a list positive qualities employee, relying on which you once hired him. Then explain why you are unhappy and what caused the dismissal. Finishing the conversation, once again highlight a few pluses that, in your opinion, are his strengths and fit him new job. Any person has the right to understand why they want to part with him.

When conducting a final conversation, it is better to be guided by the following rules. Talk to the dismissed person personally and in private, be attentive and polite, but do not sympathize. Be correct: state only facts, not emotions. Give the employee the opportunity to speak, do not agree or dispute his words, just listen. Speak firmly, because the decision has already been made. End the conversation on a positive note - any person has something to praise for.

Legal registration of dismissal

It is important to dismiss an employee legally and without consequences. The Labor Code offers us several options, consider the most common ones.

Classic version - at will(Clause 3 of Article 77 of the Labor Code of the Russian Federation). This method is the simplest for both parties: the manager offers the employee to write a letter of resignation in his own hand, the employee agrees. If he refuses to write a statement of his own free will, then it remains to sympathize with the manager, since he will have to try to force the employee to do this. Each comment must be accompanied by a reprimand and written execution. When there is a sufficient number of documentary evidence of the employee’s failure to fulfill his duties, you can re-talk with the employee and invite him to voluntarily write a statement in order to avoid dismissal under the article. Most likely, after reviewing the documents and talking with you, the employee will write a letter of resignation of his own free will.

You can go the other way, namely, change the working conditions of an employee: transfer his clients and part of the authority to another employee, do not raise wages, deprive the premium. In this case, everything depends on the personality of the leader and his moral principles.

But these methods have their drawbacks - they kindle war and affect relations within the team as a whole. Angered, a dismissed employee can turn to the tax office, to the court, to your competitors or to all at the same time, turning your existence into a nightmare.

Another way to break up termination of the trade agreement by agreement of the parties(Clause 1, Part 1, Article 77 of the Labor Code of the Russian Federation). This method is convenient to use when both parties are set to terminate the employment relationship. In this case, the date of dismissal is chosen taking into account their mutual interests, for example, when a replacement will be selected for an employee or when he finds a new job. If it is legally correct to draw up the termination of an employment contract by agreement of the parties, then it is necessary to conclude a termination agreement, which should provide for the date and conditions for termination. IN real life the parties agree on the terms of departure orally, and when the agreed date arrives, the employee writes a letter of resignation, and the entry in the work book is carried out on the basis of paragraph 3 of Article 77 of the Labor Code, that is, “of his own free will”.

Opportunity dismissal due to lack of probation must be foreseen in advance. The trial period usually lasts up to three months, during which the employment contract can be terminated at any time. Please note that the test clause must be included in the employment contract and, preferably, in the order and application for employment. Otherwise, the employee is considered hired without a probationary period, and it is impossible to dismiss him on the basis of failure to pass the probation. In case of an unsatisfactory result of the test, the employer has the right to terminate the employment contract with the test subject ahead of schedule, notifying him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as not having passed the test. In this case, it is desirable to confirm the reasons with written evidence.

Termination of a fixed-term employment contract passes easily and simply after the expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before the dismissal.

Dismissal based on the results of certification- a risky step, since in 90% of cases the court decision is made in favor of the employee, regardless of how well the employer's documents are drawn up. If an employee fails to official duties, then he can be dismissed based on the results of certification (in accordance with subparagraph "b" of paragraph 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a Regulation on certification, as well as an approved certification schedule or an order that is created immediately before the certification. With all these documents, the employee must be familiarized in advance against signature. It is better for the head of the company not to be a member of the certification commission, since then the employee will not have the opportunity to complain about disagreement with the results, which are drawn up in a separate order. If the results of the certification are unsatisfactory, it is necessary to give the employee time to correct and re-assess him. If the results of the re-certification are unsatisfactory, it is better to offer the employee another job, and if he refuses, you can safely dismiss him. Most often, such a dismissal involves a conflict between the company and the person, and therefore this measure should be used only in extreme cases. If before the certification the employee did not have written comments, complaints from colleagues, then such a dismissal is easily challenged in court, and in most cases the judge takes the side of the former employee.

If an employee is systematically late, then he can fired for lack of discipline(Clause 5 of Article 81 of the Labor Code of the Russian Federation). The most important in this case is the clause of the employment contract, which clearly indicates the time of the beginning and end of the working day. In addition, in the time sheet, it is imperative to record the time of arrival at work. If the employee’s tardiness is chronic, it is necessary to draw up an act of being late, and then demand a written explanation from the employee on the basis of Article 193 of the Labor Code of the Russian Federation. If the employee does not want to write an explanatory note, an act of refusal should be drawn up and the signatures of three other employees should be obtained under it. If there are three written comments, you can draw up a reprimand, after which you can safely dismiss such an employee. I would like to emphasize that if you want to dismiss an employee under an article, it is important to carefully prepare written documents (memos, comments, orders) so that you have solid evidence in case of a litigation.

Despite the abundance of ways to part with an employee, the best is the dismissal of one's own free will. Try to do everything possible so that the employment contract is terminated precisely on this basis, regardless of the presence or absence of a conflict with the employee. The main thing for you is to avoid litigation which entail costs. In addition, there is a possibility that you will be forced to reinstate an employee in a position during the trial. It is better not to bring the dismissal to proceedings and resolve the situation peacefully.

Sooner or later, any leader is faced with the need to part with an employee. A correct and timely dismissal procedure will save the company money, and the boss himself - nerves ...

To bookmarks

Stanislav Sazonov

What are the dangers of layoffs?

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

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

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

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

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

Moreover, fines on the director of the company and on the company can be imposed simultaneously.
That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the absence of an employment contract: a fine of 20 thousand for the director and 100 thousand rubles for the LLC.

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

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

Consider how to avoid the second situation.

Dismissal: 80% psychology and 20% law

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

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

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

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

It is understatement and unrealistic expectations that are the main causes of conflicts.
The employer thinks: “It seemed to me that everything was super, he understood everything, he will work the way I need. But he breaks deals, he doesn’t know how to communicate with clients, who called, doesn’t remember, doesn’t write down contacts, says “Hello” on the phone, but he should say: “ABV company, Ivan Ivanov, good afternoon” ... Well, my!
The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, I would work 24 hours a day, three times four hours a day, but in reality it came out only 30 thousand rubles, and I had to work seven days a week and for 10 hours ...”.

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

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

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

“I'm taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell for 200 thousand rubles. In the second - for 350 thousand rubles. In the third - for 400 thousand rubles.
If you cannot reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need this. Do you agree? If you agree, then let's go."

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

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

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

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

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

This is explicitly stated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, which explains that when considering a case on the reinstatement of an employee whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer .

All practical examples I would conditionally divide layoffs into two groups.

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

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

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

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

dismissal in case of 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);

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

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

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

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

follow the procedure for dismissal on this basis.

5 Safe Ways to Fire a Negligent Employee

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

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

The agreement cannot be terminated and cannot be disputed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Basic rules of the trial period:

in case of an unsatisfactory result of the test, the employee can be dismissed before the expiration of the test period, warning in writing, no later than three days, indicating the reasons;
testing may not be available to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;
if there is no probation clause in the employment contract, then the employee is accepted without probation;
the probationary period may not exceed three months;
if the probation period has expired, and the employee continues to work, then he is considered to have passed the probation, and he will have to be dismissed on general grounds.

How to get fired right

1. Non-standard option.

It is possible to replace the dismissal on the basis of an unsatisfactory test result for dismissal of the employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article says that if during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance.

In most cases, such a situation is resolved amicably: the employee is informed that he was not suitable for the job in the position for which he was hired, that is, he did not pass the probationary period. He understands this and leaves of his own accord. The question is settled: and the employer has achieved his goal, and the employee does not have a "bad" entry in the work book.

2. Standard option.

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

comply with probationary restrictions;
comply with the test period.

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

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

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

Warn the employee in writing about an unsatisfactory test result no later than three days in advance, indicating the reasons (part 1 of article 71 of the Labor Code of the Russian Federation). Dismiss after the expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in the prescribed manner (Article 84.1 and Article 140 of the Labor Code of the Russian Federation).

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

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

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

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

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

How to get fired right

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

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

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

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

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

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

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

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

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

Dismissal on the specified grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, being on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of the employee (part 3 of article 193 of the Labor Code of the Russian Federation).

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

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

Such violations include, in particular:

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

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in clauses 33–35 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”.

Thus, the courts, considering disputes, should take into account that the employee’s failure to perform duties without good reason is understood as non-performance of labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions , regulations, orders of the employer, technical rules, etc.).

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

How to get fired right

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary responsibility. The procedure is established in article 193 of the Labor Code of the Russian Federation and was described above.

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

Articles By topic:

Pasta with tuna in creamy sauce Pasta with fresh tuna in creamy sauce Pasta with tuna in a creamy sauce is a dish from which anyone will swallow their tongue, of course, not just for fun, but because it is insanely delicious. Tuna and pasta are in perfect harmony with each other. Of course, perhaps someone will not like this dish.	Spring rolls with vegetables Vegetable rolls at home Thus, if you are struggling with the question “what is the difference between sushi and rolls?”, We answer - nothing. A few words about what rolls are. Rolls are not necessarily Japanese cuisine. The recipe for rolls in one form or another is present in many Asian cuisines.
Protection of flora and fauna in international treaties AND human health The solution of environmental problems, and, consequently, the prospects for the sustainable development of civilization are largely associated with the competent use of renewable resources and various functions of ecosystems, and their management. This direction is the most important way to get	Minimum wage (minimum wage) The minimum wage is the minimum wage (SMIC), which is approved by the Government of the Russian Federation annually on the basis of the Federal Law "On the Minimum Wage". The minimum wage is calculated for the fully completed monthly work rate.

Popular

2022-12-17 06:18:07	Calculation of the actual cost of finished products
2022-12-17 06:18:07	Investment financing sources
2022-11-17 00:23:54	What is abstraction, abstract thinking
2022-11-17 00:23:54	Production costs and circulation
2022-11-17 00:23:54	GDP per capita List of countries by GDP per capita
2022-11-17 00:23:54	Thaddeus Fadeevich Bellingshausen, the famous Russian navigator What did Thaddeus Bellingshausen do
2022-10-20 00:32:43	Compatibility of signs of the zodiac he is Aquarius she is Sagittarius
2022-10-20 00:32:43	Why does a budgerigar dream: a girl, a woman, a pregnant woman, a man - interpretation from different dream books
2022-10-20 00:32:43	What happens to a person after cleaning the biofield
2022-10-20 00:32:43	How to understand that damage has been removed from a person: signs, symptoms and consequences of removing damage

New

2022-10-20 00:32:43	Gemini and Libra Love Compatibility
2022-10-20 00:32:43	Strong prayer for the child to sleep well and serenely
2022-09-26 04:05:41	Oh Mondy. Distributors. Environmental policy in the field of forest management
2022-09-26 04:05:41	Who is the beneficiary in simple words Beneficiary of funds
2022-09-26 04:05:41	Creation of a public organization without formation of a legal entity Association of legal entities without formation of a legal entity
2022-09-26 04:05:41	"Raiffeisenbank Connect" - entrance to the "Personal Account
2023-01-19 15:49:34	Pasta with tuna in creamy sauce Pasta with fresh tuna in creamy sauce
2023-01-19 15:49:34	Spring rolls with vegetables Vegetable rolls at home
2022-12-17 06:18:07	Protection of flora and fauna in international treaties AND human health
2022-12-17 06:18:07	Minimum wage (minimum wage)
2022-12-17 06:18:07	Calculation of the actual cost of finished products
2022-12-17 06:18:07	Investment financing sources