Legal grounds for dismissal of an employee without his consent. The procedure for dismissal at the employee's own request - reasons, sample application and calculation procedure

Please tell me how to legally fire an employee who does not suit me for a number of reasons? Here they are:

An employee performs his duties poorly: his work has to be redone, the company loses customers, suffers losses.
Systematically late, rude to colleagues and management, poisoning the team.
Is it necessary to record his misdeeds somehow?

How to issue a dismissal if he himself does not want to leave?

Is such an employee entitled to compensation for unused vacation and severance pay?

Daniel B.

It is possible to punish and dismiss an employee for negligence or rudeness. But on condition that the obligations to work conscientiously and be polite are documented.

Compensation for unused vacation is due to him, but severance pay is not.

Anton Dybov

tax expert

Better than the world

Before we analyze the procedure for punishing an employee, we still advise you to agree with him on dismissal of your own free will or by agreement of the parties.

The conflict is bad for you because the employee can apply to the labor inspectorate. If she reacts and comes with an unscheduled check, she will ruin all personnel records.

In negotiations with the employee, calmly explain that if he does not leave peacefully, then you start the punishment procedure. Sooner or later it will end with an unpleasant entry in the work book.

You will have to cancel the entry made in accordance with all the rules only through the court - the labor inspectorate will not help here. And even if the employee goes to court, it is not a fact that he will win. Does he need it?

You can only break what is written

The duties of an employee are usually divided into disciplinary and professional.

Many stem from laws and regulations. The driver must comply with traffic rules, the cashier cannot take the company's money, the seller is forbidden to shortchange buyers.

Examples: arrive at work by 10:00, that is, do not be late, and leave no earlier than 18:00. Do not be rude to colleagues and contractors. Wear formal business attire.

In a word, these are requirements for the fulfillment of which the employee does not need professional skills.

professional duties, as a rule, the job description details. In the employment contract, it is enough to indicate the general labor function: accepted for the position of manager, accountant - and send it to the instructions.

Examples: answer customer calls, generate shipment requests in such and such a program and at such and such a time, transfer documents to such and such and then, prepare and submit tax returns.

Without a job description, it is difficult to prove to the labor inspectorate or the court that the punished or dismissed person did not work well. First of all, the employer will be asked: where is it written that a person was obliged to do exactly this and that way?

Once again, and yellowish: if there is no documented duty of the employee, then there is no responsibility for its failure.

Types of punishments for employees

If an employee violates the law, the employment contract, the PWTR, job description or other local regulations, then he does not fulfill his labor duties. The Labor Code calls this a disciplinary offense and allows the employer to punish the person.

Officially, this is called "applying a disciplinary sanction." There are three types of such charges.

Comment is the easiest measure. Usually used if you need to slightly pull the employee, who is generally not bad, but something relaxed. A couple of times I was 10 minutes late, once I forgot to hand over the documents to the buyer, etc.

Rebuke is a standard and heavier measure. The hourly delay of the driver, due to which the delivery of goods to the buyer fell through, is quite worthy of a reprimand.

Dismissal on the appropriate basis. In the people - "according to the article." There are two classic reasons for it:

There are no other penalties in the TC. There are no special remarks, strict reprimands or reprimands with entry in a personal file. If the employee is punished in this way, he will easily cancel the penalty through the labor inspectorate or the court on a formal basis.

You can punish him with a ruble by issuing a downtime due to the fault of the employee or leaving him without a bonus. Neither is considered a disciplinary sanction.

Also, in the cases established by the Labor Code, the employer has the right to be inflicted by his negligence. And it's not a disciplinary action either.

Principles of punishment of employees

The employer needs to take into account the severity of the misconduct, the circumstances of its commission and the reputation of the employee.

It is illegal to dismiss for absenteeism when an employee was absent for a good reason: he was ill, was a witness in court, etc.

Life shows that before dismissal it is better to take out three or four reprimands for serious violations in which the employee is at fault. Reprimands and reputation will spoil, and will show that the employer tried to bring the person to his senses to the last before dismissing him.

Another principle is the one-time collection. If at first the employee was reprimanded throughout the form, and later increased to a reprimand, then the latter is illegal. You can not announce a reprimand for absenteeism, and then fire him for it.

Punishment procedure

Recording a misdemeanor. There are no requirements for the form and content of this document in the TC. A memo from the immediate superior of the delinquent employee will do. Or an act drawn up by employees who were rude to the defendant.

Request for explanations. The Labor Code obliges the employee to give 2 working days to explain in writing the reasons for the misconduct. But it is better to give more: 3-4.

Notify the employee of the need to provide explanations in writing under the signature and in front of witnesses. In the document, indicate the date, time and place where he should bring the paper.

If the employee refuses to sign on the notice, draw up an act about this with the witnesses. The same if he does not bring an explanation at the appointed hour.

Order for disciplinary action. So, the explanations did not convince you, or the employee did not provide them at all. Time to issue an order. Write in it why and how exactly you punish the person.

Let me remind you that there are only three disciplinary sanctions: reprimand, reprimand and dismissal. Without any prefixes and embellishments.

An order can be issued within a month from the day the misconduct was discovered and no later than 6 months from the day it was committed. But of course, it's not worth dragging on for so long.

Familiarize the offender with the order under the signature. If he refuses, draw up an act about it.

When the disciplinary sanction is dismissal, it is enough to issue a dismissal order. At the same time, it will also be an order for punishment. With him, too, must be familiarized under the signature.

The expiry date of the claim. Remarks and reprimands are valid for a year from the date of issue of the order. If during this time the employee commits another misconduct, it will be repeated. And this is already a formal reason for dismissal "under the article." Provided that the severity of the violation corresponds to that.

The procedure for punishment for the second (third, fourth) offense the same as the first one. Nothing is added and nothing is taken away.

Payments upon dismissal "under the article"

Along the way, the labor code prohibits the payment of any severance pay to the delinquent. The condition about it in the labor or collective agreement is invalid.

Otherwise, the procedure for dismissal "under the article" does not differ from the procedure for dismissal for any other reason.

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

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

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

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

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

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

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

Consider how to avoid the second situation.

Dismissal: 80% psychology and 20% law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 challenged.

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

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

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

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

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

The possibility of dismissal in case of an unsatisfactory test result is provided for by Art. 71 of the Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test.

Basic rules of the trial period:

in case of an unsatisfactory result of the test, the employee can be dismissed before the expiration of the test period, warning in writing, no later than three days, indicating the reasons;
testing may not be available to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who 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, a disciplinary sanction must be imposed on this employee, which must not be removed by the time a new offense is committed.

How to get fired right

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

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

Almost every person at least once in his life worried that he could be fired from his job. Some people live in such fear all the time, both those who do occasionally commit violations, and conscientious workers.

Let's figure out why exactly an employer has the right to dismiss an employee, and why not.

Dismissal due to downsizing

First of all, it is worth highlighting the dismissal due to a reduction in the number of staff. They resort to it when the management of the enterprise believes that the maintenance of a particular position or a number of positions is not economically profitable.

By and large, there is no personal guilt in such dismissal of an employee, although managers sometimes use it to get rid of objectionable employees.

This type of dismissal is made entirely at the initiative of the employer. True, there is a limited circle of persons to whom it cannot be applied. These are, for example, pregnant women, underage workers, single mothers. These and some other categories of persons cannot be dismissed from work to reduce the size of the enterprise.

But at the same time, there is a much larger circle of people who do not fall under the ban on dismissal due to job cuts. For these employees, in order not to be laid off, it is very important to prove to the administration of the company the importance of their position, as well as the personal benefit that this employee brings to the organization.

That is, in order not to be fired on a reduction, first of all, you need to please the management of the enterprise and prove your worth.

And for the management of the company, the main thing to remember is that it is necessary to reduce not a specific person, but a position. That is, after the dismissal of an employee to reduce, no one can be hired instead of him, and this position should be removed from the staff list.

Otherwise, such a dismissal may be recognized by the court as illegal, and the employee will be reinstated at his former place of work.

Dismissal in connection with the termination of the enterprise

If in the previous paragraph the employee could somehow influence the likelihood of his dismissal, then an ordinary employee can hardly prevent the loss of work due to the liquidation of the enterprise.

Even if he will make every effort, working for the good and prosperity of the company, his efforts can bring real results and prevent the collapse of the enterprise only if other employees of the organization make similar efforts.

Dismissal for violation of labor regulations

Dismissal for violation of labor discipline is a fairly common method of dismissal from a position, which is often used in relation to negligent employees. So, under this item, they can be fired for:

regular lateness to work;
absenteeism;
appearance on the territory of the enterprise in a state of intoxication;
theft of company property or embezzlement of financial resources;
damage to valuables;
disclosure of trade secrets to third parties.

A prerequisite for this type of dismissal is the strict recording of all violations, in accordance with the procedure established by law. It should be noted that the employee must be personally acquainted with each act of violation. He should also be asked to give a written explanation of what happened.

The employee has the right to choose whether to give explanations or refuse to give. True, the latter will be regarded as an admission of guilt. In case of refusal to give explanations, the management of the company must draw up an appropriate act with the signatures of witnesses.

If the employer made a mistake somewhere during the dismissal procedure, then in the future the dismissed employee, even if there are real violations, will be able to easily recover through the court.

Dismissal for non-compliance with the position held

But dismissals under this article are relatively rare, since it is rather difficult and problematic to prove the inconsistency of a particular person with his position. This requires the creation of an attestation commission, which must establish whether the abilities and knowledge of a person correspond to the duties assigned to him.

But even if the commission recognizes that a person is not suitable for the position, the employer is obliged to offer him another type of employment that will correspond to his professional skills.

And only if the employee refuses this offer, he can be dismissed from work as a person who does not correspond to his position. However, the dismissed workers can still challenge the decision of the certification commission in court and, thanks to its decision, be reinstated in the workplace.

Due to the complexity of the procedure and the lack of a guaranteed result, employers try to dismiss employees under other articles of the Labor Code, and dismissal for inconsistency with the position held is the last resort when all other options have failed.

Amoral behavior

According to the current Labor Code, employees can also be fired for immoral behavior. True, this paragraph can only be extended to employees of various educational institutions (schools, boarding schools, etc.) and is in fact not applicable to most existing professions.

As in the case of dismissal for violation of labor discipline, the essence of an immoral act must necessarily be recorded in the relevant act.

Refusal by an employee to perform their duties

If you refuse to fulfill the duties assigned to you by job descriptions, then the head of the enterprise has every right to dismiss you from work. In addition, according to the law, the employer has the right to change working conditions, in particular the work schedule, the list of duties to be performed, the amount of payment, and so on.

True, he is obliged to notify the employee about this two months before the start of applying the changes. If an employee refuses to comply with these requirements, he may be fired. Also, this item can be attributed to the refusal to move to another locality if the organization you work for moves there.

Dismissal upon change of ownership of the organization

If the owner of the enterprise has changed, then he has the right to dismiss the management of the company: the director, his deputies, the chief accountant. This right of the company owner does not apply to ordinary workers or middle and lower managers.

In addition, the new owner is obliged to offer other jobs to the former management of the company, and in case of their refusal to start the dismissal procedure.

Who should not be fired under any circumstances?

The labor legislation stipulates a list of persons who cannot be fired under any circumstances. These persons include women who are expecting a child, underage employees of the enterprise, trade union leaders. These workers can be fired only in the event of a complete liquidation of the company.

But this does not mean that they can afford behavior that does not correspond to the work schedule at the enterprise, or improperly perform their immediate duties, since the heads of the enterprise, and in addition to dismissals, have tools that can influence a negligent employee. For example, a reprimand or deprivation of a bonus.

Until the moment of their return to work, persons who are on vacation (tariff, at their own expense, maternity leave, childcare, etc.) or who are on sick leave due to temporary disability cannot be dismissed. They can only be fired on the day they begin their duties.

In addition, there is a circle of persons who cannot be fired by reduction, but can be fired at the initiative of the administration in accordance with another article. For example, for violation of labor regulations. These include single mothers and women with children under three years of age. If the child does not have a mother, the same rule applies to any person who officially takes care of him.

Conclusion. As you can see, an employee can be fired from work for very different reasons. Sometimes these reasons largely depend on him (in case of violation of labor discipline), and in other cases they are absolutely independent (in case of liquidation of the enterprise).

But in any case, a qualified and responsible employee is more likely to stay at his workplace than an employee who approaches the matter carelessly or violates the order established at the enterprise. Persons who are negligent in their official duties are first on the list for dismissal in any organization.

Dismissal is a routine job for an experienced personnel officer. Some employees leave of their own accord, others at the "request" of the employer. In any case, each ground has its own procedure. Strict observance of it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other hand, at protecting organizations from unfounded claims of former employees. Consider how to dismiss an employee in compliance with all the necessary formalities.

Dismissal Options

Labor legislation provides for 3 options for dismissal:

at the request of the employee;
at the initiative of the employer;
by agreement of the parties.

An employee's own desire is the most common reason for terminating a relationship with an employer:

The employee writes a letter of resignation indicating the date.
The employer is obliged to satisfy this application.

Difficulties with registration of dismissal at the initiative of the employee, as a rule, do not happen. An exception is issues related to mandatory “working off”. By default, this is 2 weeks that the employee continues to work from the moment the application is submitted.

Certain categories of personnel are entitled to a reduced notice period. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not have time to calculate the resigning person in time and give him a work book in his hands.

The employer's initiative involves a more complex process of dismissal. If this is a reduction in staff or the liquidation of a company, the procedure is clearly described in the legislation and does not present problems from the point of view of documentary support. Here the main task is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to the dismissal of an employee unilaterally by the organization, here the “freedom” of the employer is clearly limited: one desire is not enough for this. There is a list of grounds for which an employee can be fired, and a special procedure for fixing violations for each of them. There are no documented misconducts of the employee - there is no reason for dismissal.

A “compromise” option for terminating an employment relationship is an agreement between the parties. In this case, the employer and the employee amicably agree on parting on certain conditions. Most often it looks like this: the organization is interested in dismissing the employee without the risk that he will change his mind and withdraw the application “on his own”. The employee is "bargaining" to receive monetary compensation for his departure.

Dismissal at the request of the employee

The employee has the right to terminate the employment relationship at any time. To do this, he needs:

fill out an application for resignation of your own free will 2 weeks before leaving;
work out the assigned days;
complete the transfer of cases to another employee, if such an order is provided for in the organization.

It doesn’t matter what contract was concluded when applying for a job - fixed-term or indefinite. In any case, the desire of the employee is decisive, and the employer has no legitimate reason to interfere with him.

The application is written in the name of the head with the wording: “I ask you to dismiss me of your own free will “XX” month in words XXXXX of the year”, the current date and signature.

If an employee leaves without working off, he must include in the application the reason for dismissal:

retirement;
enrollment in studies;
moving to another area;
transfer of a spouse to another place of service / abroad;
violation of the law, the terms of the employment contract by the employer.

In such cases, the dismissal occurs on the date indicated by the applicant. If required, a supporting document must be attached to the application (certificate from the institute, transfer order, etc.). An employee can leave “one day” without a good reason, if the employer goes to meet him and allows him not to work.

Without observing the two-week period, you can dismiss an employee on vacation if he submitted an application before it began or already during the vacation, but no later than 14 days before going to work. Then the first post-holiday working day will be considered the date of termination of the employment contract.

Employees on probation, issued under a fixed-term employment contract for up to 2 months and seasonal workers work out not the standard 14, but only 3 days.

On the part of the employer, the procedure for dismissal of one's own will looks like this:

receipt of an application endorsed by the head of the company;
creation of an order;
making an entry in the work book;
full settlement with the employee on remuneration;
preparation of documents necessary for further employment (certificates 2-NDFL, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the reason for leaving, the personnel documents will indicate the same reason for which article to dismiss an employee - Art. 77 of the Labor Code of the Russian Federation. On the day of dismissal, the employee gets acquainted with the order and receives a work book in his hands. Up to this point, a person can change his mind and withdraw the application if a replacement has not yet been invited to his place, which "can not be turned back."

Dismissal through agreement

The agreement of the parties implies a quick and simple dismissal procedure:

If the initiative comes from the employee, he submits a letter of resignation to the manager.
If the employer "asks" the employee to leave the firm, he sends him a written proposal.
The parties discuss the terms of termination of the employment contract.
The organization and the dismissed person sign a bilateral agreement.
The personnel department draws up an order, fills out a work book. The grounds for dismissal are paragraph 1 of article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of opportunities and compliance with legal rights. The employer may, having agreed with the employee, dismiss him on any day, even if he is on vacation or sick. The resigned person cannot “change his mind” and cancel the signed document unilaterally. The employee is also not offended - in the process of negotiations, he has the right to protect his material interests and demand compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer for purely economic reasons - the need to reduce the number of employees or completely close the organization. In the second case, the entire staff goes to the “expenditure”, in the first case, the reduced units, positions, with the exception of those categories of employees who, according to the law, cannot be reduced.

If you need to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee does not correspond to his position or he has had misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work in a drunken state, systematic violations with the imposition of disciplinary punishment.

In order to avoid infringement of the rights of staff, legislators did everything so that a person could not be fired without good reasons. It is quite difficult to “bring under the article” an employee to whom the authorities have a personal dislike, although it is impossible to completely exclude abuses by employers.

Downsizing and company liquidation

The reduction has a clearly regulated process for the dismissal of part of the staff:

The decision on reduction made at the enterprise is fixed by the order. For the personnel service, this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and change in the staffing table.
2 months prior to the cutoff date, all eligible employees are notified in writing against signature.
The employer is obliged to offer the employee another position, if possible. For people who agree to the proposed vacancies, a transfer is issued. The rest are getting ready to leave.
A notified employee has the right to leave early without waiting for the cutoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go without hindrance. Early dismissal of the employee does not deprive compensation for the days remaining before the reduction.
2 months before the reduction, management must notify the trade union body, if any. In case of mass dismissal of workers - 3 months in advance, as well as submit lists to the employment service.
For each employee, a dismissal order (T-8 form) is prepared with reference to the basis document. The order is submitted for signature to the dismissed person.
An entry is made in the work book indicating the reason for dismissal - paragraph 2 of part 1 of Art. 81 TK.
The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of the average salary.

The dismissal due to staff reduction does not apply to certain categories of employees:

pregnant women and "maternity";
single mothers with children under 14, with a disabled child under 18;
trade union members and workers speaking in negotiations with the employer on behalf of the team.

When one of several equivalent positions is laid off, the choice of employees who leave and who stay lies with the employer. However, even here the authorities are deprived of complete freedom. Other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important”, the legislation gives some of them the priority right to keep their jobs. This:

persons with 2 or more dependents;
sole breadwinners in the family;
who have received an injury or occupational disease from this employer;
disabled people - participants in hostilities;
improving qualifications on the job;
other categories provided for in the collective agreement.

These workers are the last to be laid off. An employee cannot be fired if he is on sick leave or vacation. To reduce the temporarily disabled and vacationers, you will have to wait until they go to work.

All these exceptions do not apply to the complete liquidation of the organization. The liquidation procedure practically does not differ from the reduction, except for one thing: all the personnel of the organization are deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers and others) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it completely ceases to operate.

Dismissal of violators of labor discipline and unsuitable workers

An employee who systematically violates discipline causes the management to understandably want to get rid of him. Labor legislation allows you to dismiss an employee immediately only for a gross disciplinary "crime":

absenteeism;
presence at work in a state of intoxication (alcoholic, narcotic), confirmed by a medical examination;
disclosure of information protected by law (state, commercial secret), proven in court;
theft, embezzlement, material damage to the employer or a third party, recognized by the court;
violation of labor protection rules with serious consequences;
loss of confidence for those working with money and commodity values;
immoral behavior for teachers;
submission of false documents upon admission to the position.

Dismissal for a single gross violation is a disciplinary sanction. The procedure for its execution includes:

Identification of the fact of violation.
Fixation of a misdemeanor (drawing up an act, protocol, examination, medical examination, etc.).
Obtaining written explanations from the offending employee.
Consideration of the facts of the case.
Drawing up a dismissal order in the T-8 form, references to supporting documents (acts, reports, explanatory, court decisions, etc.) are indicated as the basis.
Bringing the order to the employee under the signature.
Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to dismiss an employee for absenteeism: if a person is absent from work for the whole day or 4 hours in a row, it is necessary to document this fact and prove that the employee was absent without a good reason.

Until an explanation is received from the "truant", the "presumption of innocence" is valid. An employee could be on time off, vacation, on sick leave, be subpoenaed, get into an accident on the way to work, etc.

If the employee did not receive any sensible explanations or supporting documents (disability certificate, subpoena, protocol of the traffic police, etc.), the misconduct is regarded as a gross violation of labor discipline and is qualified under Art. 81 of the Labor Code of the Russian Federation, part 1, paragraph 6, subparagraph "a". This basis will be recorded in the dismissal order and in the work book.

The list of documents confirming the legality of such dismissal:

Notice of absence from work.
Explanatory employee or act of refusal to provide explanations.
Order for disciplinary action / dismissal.

If the employer has violated this procedure, even if he has good reasons to dismiss the truant, the “offended” employee has every chance to recover through the courts.

It is also possible to dismiss a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming "chronic" indiscipline, in the aggregate, can serve as a basis for severing an employment relationship.

Another “ticklish” question for employers is how to properly dismiss an employee who, in the opinion of his superiors, does not correspond to his position. There is no other option than to arrange an attestation for an incompetent employee. It is necessary to issue an order, create an attestation commission and evaluate the professional suitability of a person on the basis of clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can draw up a dismissal with the wording "due to inconsistency with the position held." The deadline for terminating the employment contract is no later than two months after certification.

In the event of disputes related to wrongful dismissals, the courts are more likely to take the side of employees. The reason is simple: a rare organization can boast of an ideal order in internal regulations and personnel documents. The absence of schedules, job descriptions, provisions on certification and labor regulations, an illiterately drawn up employment contract, “missed” steps when initiating a dismissal - all this can serve as evidence that the dismissal was carried out in violation of the law.

Instruction

Dismissal worker it is possible if the employee does not correspond to the position held, not if the employer terminated his, due to the employee’s repeated failure to fulfill his direct duties, a change in the owner of the enterprise, a single gross violation by the employee of labor duties, (absence worker during the whole working day or four hours without a break), etc. The list is exhaustive and is regulated by Article 81 of the Labor Code of the Russian Federation.

If you decide to quit worker on his own initiative, you must inform him about it in advance. Draw up an order in which indicate the reason for dismissal, the date and put the seal of the enterprise, sign. Familiarize worker with this document against signature. You must prepare a copy of the order so that the worker can take it for himself. In case of refusal to sign, draw up an act and attach to the document or put on the order, below your own signature, a note about this.

The last day of work for the dismissed person will be the day the order is issued. At the same time, you are obliged to give him documents from the personal file. A corresponding entry is made about the dismissal in the labor, the norm of the law, the basis for the dismissal are indicated and the signature of the head of the organization is put.

If the employee leaves on his own initiative, he is obliged to inform the management about this at least two weeks before the last working day. During this time, the management selects a new employee and draws up the necessary list of documents of the previous one.

There are times when an employee who was decided to be fired is on a list. In this case, the employer does not have the right to dismiss him on his own initiative before recovery, but if the employee himself wants to end the working relationship, then there are no obstacles to issuing a dismissal order.

In any case, follow the order of dismissal. Please write in advance worker an explanatory note justifying the violation of labor laws, if he refuses to prepare a document, draw up an act with the presence of at least two witnesses, put your signatures and subsequently attach to the dismissal order. You can carry out in several stages, for example, first issue a remark to the employee, then announce a reprimand, then, and finally, the position held.