Systematic failure to fulfill labor duties without good reason Art. Dismissal of an employee for repeated failure to fulfill job duties
09 Mar 2012 15:14
Repeated failure by an employee to fulfill his job duties without good reason, if he has a disciplinary sanction, is one of the grounds for dismissal of employees at the initiative of the employer. The norms for this reason for dismissal are provided for in clause 5, part 1, art. 81 of the Labor Code of the Russian Federation (Labor Code of the Russian Federation dated December 30, 2001 N 197-FZ (adopted by the State Duma of the Federal Assembly of the Russian Federation on December 21, 2001) (as amended on December 29, 2010) (as amended and additionally entered into force on January 7, 2011) The document was not published in this form. The original text of the document was published in the publications: “Rossiyskaya Gazeta”, N 256, 12/31/2001; “Parliamentary Gazette”, N N 2 - 5, 01/05/2002; “Collection of Legislation of the Russian Federation”, 07.01. 2002, N 1 (part 1), art. 3). Such grounds for dismissal are applied and applied by the employer to the employee as a disciplinary sanction (Part 3 of Article 192 of the Labor Code of the Russian Federation).
In connection with his repeated failure to fulfill his job duties, two basic requirements must be met.
Firstly, the disciplinary offense must be committed repeatedly, that is, the employee at the time of application of a disciplinary sanction in the form of dismissal on the grounds provided for in paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, there is a valid disciplinary sanction applied within one year before the next disciplinary sanction is imposed and not withdrawn by the employer on its own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees in accordance with Art. 194 of the Labor Code of the Russian Federation.
Secondly, the employee must violate labor discipline, that is, obligatory for all employees to obey the rules of conduct defined in accordance with the Labor Code, other laws, collective bargaining agreements, agreements, employment contracts, local regulations of the organization (in accordance with Article 189 of the Labor Code of the Russian Federation).
When bringing an employee to disciplinary liability, the employer must prove the following circumstances:
- the employee commits a violation of his labor (official) duties;
- illegality of the employee’s actions;
- the employee’s guilt;
- a cause-and-effect relationship between the unlawful, guilty behavior of the employee and the violation of his labor duties.
The Plenum of the Supreme Court of the Russian Federation came to a similar conclusion, which in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 “On application by the courts of the Russian Federation of the Labor Code of the Russian Federation" (as amended on September 28, 2010). The document was not published in this form.) as an essential condition for the legality and validity of the application of the sanction, clause 5, part 1, art. 81 of the Labor Code of the Russian Federation provides for the presence of an outstanding and/or not previously lifted disciplinary sanction.
Therefore, in the case when no disciplinary sanctions were applied to the employee during the current year, the dismissal of such an employee in accordance with clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation does not apply.
So, for example, if on May 13, 2010, a disciplinary sanction in the form of a reprimand was applied to an employee, and on May 12, 2011, the same employee committed a completely new disciplinary violation, then dismiss such an employee under clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation is not possible, since applying this penalty requires receiving a written explanation from the employee, which he can provide within two working days (of course, provided that such an explanation is not received before May 13, 2011).
Also, the use of dismissal on the basis of: dismissal for repeated failure to fulfill official duties is unacceptable in a situation if: on May 20, 2010, the employer’s order came into force to apply a reprimand to the employee in the form of disciplinary liability, but subsequently, for example, on June 21, 2010, by the decision of such the order was canceled, and on June 25, 2010, this employee committed a new disciplinary violation.
But if such an order is not appealed within 3 months, and this period is not restored according to the rules and grounds specified in Part 3 of Art. 392 of the Labor Code of the Russian Federation, then dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation will be considered legal and justified, since the legality and validity of the previous penalty is not considered by the court (answer to question 8 of the Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2007).
At the same time, it is necessary to pay attention that the last disciplinary violation should not necessarily be a gross violation, however, like the initial one, since an independent basis for dismissal is provided for committing a gross violation of labor duties.
Therefore, in order to prevent employers from using this basis only as a formal reason for dismissing an employee, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, obliged the employer to prove in the event of a dispute on the application as a basis for dismissal of paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, that when imposing such a penalty, the following were also taken into account:
- the severity of the disciplinary offense, the circumstances under which it was committed, the employee’s previous behavior, his attitude towards work, as well as the fact that the disciplinary offenses committed by the employee had adverse consequences for the organization;
- causing damage, which may result in the need to make excessive monetary payments (for example, to pay a fine for the downtime of railway cars that occurred due to the fault of the employee; to pay for the downtime of other workers that arose in connection with their untimely receipt of production assignments, untimely implementation of repairs due to the fault of dismissed employee);
- failure of negotiations with the counterparty, since the necessary materials were not prepared or were prepared, but at an inadequate level, which did not make it possible to conclude an economically beneficial agreement for the organization;
- poor quality performance of the assigned task, due to a negligent attitude to the performance of labor duties, which entails the need for correction and negatively affects the production process.
Therefore, if, when considering in court the employee’s claim for recognition of the dismissal as illegal and reinstatement at work, it is established that disciplinary offenses actually took place, his behavior is guilty, but they did not negatively affect the production process and the employee’s previous behavior was impeccable, on the part of the employer he was repeatedly encouraged, that is, the employer applied a disciplinary measure (dismissal without taking into account the criteria underlying disciplinary liability), then the court, as noted in paragraph 53 of the Resolution of the Plenum of the Supreme Court, can satisfy the claim for reinstatement at work.
In addition, when deciding on the repetition of a disciplinary violation, the employer must take into account that a disciplinary sanction cannot be imposed twice for the same violation, therefore, applying a penalty in the form of dismissal of an employee for a repeated violation is possible only in the case of a continuing disciplinary offense (usually homogeneous). according to its content).
Application of a new disciplinary sanction to the employee, including dismissal under clause 5, part 1, art. 81, it is also permissible if failure to perform or improper performance, through the fault of the employee, of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction (clause 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).
Failure by an employee to perform labor duties without good reason is failure to perform and/or improper performance through the fault of the employee of the labor duties assigned to him, which may also include:
a) the employee’s absence from work or workplace without good reason;
b) refusal of an employee to perform job duties without good reason due to a change in labor standards in accordance with the established procedure;
c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work, etc. .d.
In practice, this causes great difficulties, since the text of clause 5, part 1, art. 81 of the Labor Code of the Russian Federation essentially contains an unlimited range of grounds for dismissal, pointing only to general features that characterize such grounds. Whereas, due to the different functions of workers, the characteristics of the enterprises and industries where they work, the importance of their position and the work performed for the employer, the same disciplinary offense has different consequences and the severity of harm even for the same employer. Therefore, it is obvious that the punishment for errors in the field of technological process cannot be as severe as for violation of discipline.
Thus, one of the defining criteria is to determine the essence of the reasons for an employee’s refusal to perform job duties without valid reasons, that is, the definition of such reasons as valid or disrespectful. But the list of reasons that can be considered valid is not established by law. The employer will have to decide for himself whether to consider the reason for non-fulfillment or improper performance of labor duties to be valid, and subsequently the court will decide this according to its own criteria.
All this sometimes creates a curious situation in practice, when the biggest problems arise for the employer when trying to punish for “bad work.” Since people usually have different ideas about what is good and what is bad, justifying the correctness of dismissal will not be easy. It is better if the employee’s work receives some kind of quantitative expression. If we are talking only about quality, we will have to prepare for a serious dispute, including in court.
An employee’s refusal (regardless of the reasons) to comply with the employer’s order to go to work before the end of the vacation (Clause 37 of Resolution No. 2) cannot be considered as a violation of labor discipline, since recall from vacation is carried out only with the consent of the employee (Part 2 of Article 125 of the Labor Code RF).
Thus, dismissal for repeated failure by an employee to perform job duties without good reason must be carried out with the strict application of all rules relating to the procedure for applying disciplinary sanctions, and with the utmost caution of the employer’s administration.
A. If signs of a disciplinary offense are detected in an employee’s action (inaction), or if harmful consequences of a disciplinary offense are detected, the employer issues an order to conduct a disciplinary inspection, which indicates:
- grounds for ordering the inspection;
- Full name and the position of the person in respect of whom the inspection was ordered, or the known circumstances and consequences of a disciplinary offense discovered by the employer, in the case where the person who committed the offense was initially unknown;
- Full name and the position of the person appointed to conduct the inspection.
If necessary, a working group may be appointed to conduct a disciplinary review.
The labor legislation does not establish deadlines for conducting disciplinary inspections, however, if the inspection is not carried out within a month, not counting the time the employee is ill, on vacation, as well as the time required to take into account the opinion of the representative body of employees, the employer will not be able to bring the employee to disciplinary liability, since in most cases the moment of discovery of the misconduct is fully considered the moment the disciplinary check begins, since in accordance with Part 3 of Art. 193 of the Labor Code of the Russian Federation: “Disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees.”
B. For each disciplinary offense, only one disciplinary sanction can be applied.
B. Before applying disciplinary action, the employer must request a written explanation from the employee about the misconduct committed. If after two working days the employee has not provided the specified explanation, then an act of refusal to give an explanation is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action.
D. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
D. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
Evidence of an employee’s guilt in committing a disciplinary offense and materials characterizing it may include:
- explanations of the employee, his immediate supervisor of the unit, colleagues, experts on circumstances relevant to the audit, which became known to them as a result of their professional actions;
- inspection reports of the premises, workplace, tools and equipment, etc.;
- acts of inventory, accounting audits and submissions from supervisory government bodies on the establishment of violations of the law and on their elimination;
- expert opinions:
accounting;
merchandising;
evaluative;
tax;
traceological;
medical;
handwriting;
documentary, etc.
- other circumstances relevant to the case.
Moreover, all evidence of a disciplinary inspection must be collected, recorded and formalized in accordance with the requirements of the law, otherwise it will not have legal force and cannot be used as evidence of the employee’s guilt.
E. The imposition of a disciplinary sanction should be carried out only by a representative of the employer, authorized to make decisions on the hiring and dismissal of employees (since dismissal is provided as one of the disciplinary sanctions). Failure to comply with this requirement when applying a disciplinary sanction along with other violations may result in the cancellation of this sanction.
G. The employer’s order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up. If the employee fails to appear to familiarize himself with the dismissal order, the employer has the right to notify the employee in writing that he can familiarize himself with the dismissal order, and (or) send the order by mail with notification.
When preparing a draft order to impose a disciplinary sanction, it should be remembered that often facts that seem obvious need to be verified.
An order to impose a disciplinary sanction and (or) material sanctions is best divided into three parts:
- descriptive;
- motivational;
- operative.
In the descriptive part of the order, it is necessary to briefly describe what the disciplinary offense committed by a particular employee was, its timing and place of commission, and describe the harmful consequences that occurred.
The motivation part must indicate all the documents that served as the basis for imposing a disciplinary sanction, indicating their details. These may be articles of the Labor Code of the Russian Federation, clauses of the job description, work characteristics that the employee violated, memos, acts, protocols indicating their originating (or registration) number and date.
In the operative part of the order, it is necessary to indicate the exact position (profession) of the employee, indicating the department, last name, first name, patronymic, the imposed disciplinary measure and (or) material punishment. When imposing a disciplinary sanction in the form of dismissal, the wording of the reason for dismissal must exactly correspond to the basis in the Labor Code, or federal law, indicating the article and paragraph.
One of the points of the order to impose a disciplinary sanction and (or) material sanctions, if necessary, can provide for its distribution to the necessary departments (accounting, the structural unit where the guilty employee works, the personnel department, legal service, etc.) after signing and assignment his registration number.
The text of the order may provide for the obligation of the immediate supervisor to familiarize the violator with this order against signature within three working days from the date of issue.
Upon review, the employee signs directly on the copy of the order imposing a disciplinary sanction.
In some cases, the text of the order can contain a warning about the possible dismissal of an employee if a disciplinary offense is committed again. If the employee nevertheless committed a disciplinary offense again within one year after the imposition of the previous disciplinary sanction, the employer has every right, without additional warnings, having established the employee’s guilt in committing a disciplinary offense, to dismiss him on the grounds provided for in clause 5, part 1, art. . 81 of the Labor Code of the Russian Federation.
It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the offense, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (clause 33 of the Resolution Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).
The final decision on the type of disciplinary sanction is made by an authorized representative of the employer.
Termination of an employment contract in the event of repeated failure by an employee to fulfill labor duties without good reason, if he has a disciplinary sanction, obliges the head of the enterprise to comply with the guarantees established for certain categories of employees upon dismissal on this basis:
- the dismissal of an employee elected to the labor dispute commission is carried out taking into account the motivated opinion of this commission (Articles 171, 373 of the Labor Code of the Russian Federation);
- the dismissal of an employee - a member of a trade union is carried out taking into account the reasoned opinion of the elected trade union body of this organization (Part 2 of Article 82 of the Labor Code of the Russian Federation);
- dismissal of leaders (their deputies) of elected trade union collegial bodies of an organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work, is allowed, in addition to the general procedure for dismissal, only with the prior consent of the relevant higher elected trade union body. In the absence of a higher elected trade union body, the dismissal of these workers is carried out taking into account the reasoned opinion of the elected trade union body of this organization (Articles 373, 374 of the Labor Code of the Russian Federation). The specified procedure also applies to employees - heads of elected trade union bodies of this organization and their deputies for two years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);
- dismissal of an employee under the age of 18 is allowed only with the consent of the state labor inspectorate and the commission for minors;
- Pregnant women cannot be dismissed on this basis.
Even in the case where a woman knew about her condition and did not inform the employer about it, she must be reinstated at work without fail.
The dismissal of employees - members of a trade union on the specified basis is carried out taking into account the reasoned opinion of the elected trade union body of this organization. The dismissal of leaders (their deputies) of the elected trade union collegial bodies of the organization, its structural divisions (not lower than shop units and equivalent to them), who are not released from their main work, is allowed, in addition to the general procedure for dismissal, only with the prior consent of the corresponding higher elected trade union body.
When an employment contract is terminated for repeated failure by an employee to perform his or her job duties without good reason, the Labor Code of the Russian Federation does not provide for the payment of any severance pay to employees, and compensation for the vacation days used is collected from the employee. However, the administration is obliged to pay the employee for days worked, unused vacation, make the final payment and issue him a work book on the day of dismissal. A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.
44. Dismissal for repeated failure by an employee to fulfill his job duties without good reason, if he has a disciplinary sanction.
Dismissal of an employee for repeated failure by the employee to fulfill his job duties without good reason, if he has a disciplinary sanction.
Repeatedly - two or more times.
When applying this rule, it is necessary to take into account the provisions of Art. 192, 193 Labor Code of the Russian Federation.
For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
collections:
comment;
dismissal for appropriate reasons.
Federal laws, charters and regulations on discipline (part five of Article 189 of this Code) may also provide for other disciplinary sanctions for certain categories of employees.
If the charters and regulations on discipline (part five of Article 189 of this Code) do not provide for other disciplinary sanctions for certain categories of employees, only reprimand, reprimand, dismissal on appropriate grounds are applied.
Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81 or paragraph 1 of Article 336 of this Code, as well as paragraph 7 or 8 of part one of Article 81 of this Code in cases where Guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee at the place of work and in connection with the performance of his job duties.
The application of disciplinary sanctions not provided for by federal laws, charters and regulations on discipline is not permitted. When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.
Before applying disciplinary action, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up. Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. A disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.
For each disciplinary offense, only one disciplinary sanction can be applied.
The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act is drawn up.
The main mistakes when applying dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation:
Two penalties were applied for one offense.
The act of refusal to give explanations was drawn up before the expiration of two days.
There is no evidence of a disciplinary offense.
There is no evidence of guilt.
One disciplinary sanction was withdrawn or cancelled.
The month's application period has passed.
The severity of the punishment is not comparable to the offense
The Plenum of the Supreme Court clarifies that when resolving disputes of persons dismissed under paragraph 5 of Article 81 of the Code for repeated failure to fulfill labor duties without good reason, it should be taken into account that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to fulfill his labor duties without good reason, it has not been removed or extinguished.
agreement."
45. Dismissal in case of absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). The resolution of the Plenum of the Supreme Court explains that:
If an employment contract with an employee is terminated under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis, in particular, can be made:
a) for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);
b) for an employee being outside the workplace without good reason for more than four hours in a row during the working day;
c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the two-week warning period (part one of Article 80 of the Labor Code of the Russian Federation);
d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, part one of Article 80, Article 280, part one of Article 292, part one Article 296 of the Labor Code of the Russian Federation);
e) for unauthorized use of days off, as well as for unauthorized departure on vacation (main, additional). It is necessary to take into account that the use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with rest days). in accordance with part four of Article 186 of the Code of the day of rest immediately after each day of donating blood and its components).
When considering the case of reinstatement at work of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee must be reinstated at his previous job.
If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average In such cases, the wages of the reinstated employee can be collected not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced.
Since the application of this type of dismissal is a disciplinary sanction, the employer must, guided by Articles 192, 193 of the Labor Code of the Russian Federation:
1. Record the fact of the employee’s absence.
2. Request an explanation.
3. Find out the circumstances.
4. Apply the penalty within a month.
Since Art. 192 of the Labor Code classifies dismissal for violation of labor discipline as a disciplinary measure, then dismissal for repeated violation of labor duties is possible in compliance with the rules established for the imposition of disciplinary sanctions. Dismissal under clause 5 of Art. 81 of the Labor Code is legal when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of duties assigned by the labor regulations; 2) failure to fulfill these duties for unjustifiable reasons, i.e. committed illegally intentionally or through negligence; 3) repeated culpable violation of labor duties, i.e. this is not the first time a disciplinary offense has occurred, for which a disciplinary measure was previously applied to the employee (during the last working year); 4) specific misconduct before dismissal, from the moment of which more than a month has passed.
The resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992 states (clause 24) that a violation of labor discipline is the failure or improper performance, through the fault of an employee, of assigned labor duties (violation of internal labor regulations, job descriptions, regulations, administration orders, technical rules, etc.).
Such violations include, in particular:
A) the absence of an employee from work without good reason for up to four hours during the working day, his presence not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;
B) the employee’s refusal, without good reason, to comply with new labor standards amended in accordance with the established procedure;
C) refusal or evasion without good reason from a medical examination of an employee, for which it is mandatory, as well as the employee’s refusal to undergo special training during working hours and pass exams on safety precautions and operating rules, for which this is a mandatory condition for admission to work.
Dismissal is possible subject to the deadlines and procedures established by Art. 193 of the Labor Code (no later than one month from the date of detection and no later than six months from the date of commission of the offense, and based on the results of an audit or inspection of financial and economic activities - no later than two years from the date of commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., under clauses 5, 6, 8, 10 and 11 of Article 81 of the Labor Code).
Clause 6. One-time gross violation of labor duties by an employee. (Article 81 of the Labor Code).
This basis for dismissal contains five subparagraphs indicating a specific gross disciplinary offense leading to the dismissal of the employee, to which reference is made in the order and work book.
A) absenteeism (absence from work without good reason for more than four hours in a row during the working day);
B) appearing at work in a state of alcohol, drug or other toxic intoxication;
IN) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties;
G) committing at the place of work theft (including small) of someone else's property, its intentional destruction or damage, embezzlement, established by a court verdict that has entered into legal force or a resolution of the body authorized to apply an administrative penalty;
D) violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences. This is a new (like subsection “c”) basis for dismissal, which was not contained in the previous Labor Code.
Valid reasons for absence from work include circumstances confirmed by documents or testimony such as illness (even in the absence of a sick leave certificate), illness of a child, transport delays due to accidents, natural disasters, participation of a citizen in saving people and property, passing exams, tests without proper registration of study leave, refusal of illegal transfer and absence in connection with this for a new job, etc.
Clause 7. commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer (Article 81 of the Labor Code).
On this basis, a special subject is subject to dismissal, i.e. an employee who directly services monetary or commodity assets. The Supreme Court of the Russian Federation in Resolution No. 16 of December 22, 1992. explained that these include employees who receive, store, transport, distribute and other actions with material assets (for example, cashier, warehouse manager, seller). Most often in trade organizations under clause 7 of Art. 81 Labor Codes fire sellers for deceiving buyers when calculating, weighing, or selling goods without cash receipts. It should be borne in mind that the loss of confidence in an employee on the part of the employer must be based on reliable data that gives the right to dismiss. If there is no fault of the employee, dismissal is unacceptable on this basis.
2.8. Clause 8. The commission of an immoral offense by an employee performing educational functions is incompatible with the continuation of this work (Article 81 of the Labor Code). The law does not establish the circle of persons subject to dismissal under clause 8 of Art. 81 TK. An approximate list of such persons is given in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992. These are teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions and other persons performing educational functions. In a broad sense, an immoral offense is an act that violates the moral foundations of society. An immoral offense is a guilty action (inaction) that violates the basic moral norms of society and contradicts the content of the service-labor function and thereby discredits the service-educational, official powers of the corresponding circle of persons.
To dismiss employees under clause 8 of Art. 81 of the Labor Code does not require repeated commission of immoral offenses. An employment contract can also be terminated for a single immoral offense. Dismissal on the specified basis (as well as under clause 7 of Article 81 of the Labor Code) is now a disciplinary measure, and therefore specific deadlines are observed (Article 183 of the Labor Code) during which an employee performing educational functions may be dismissed from work . 2.9. Clause 9. Acceptance of the unfoundedness of a decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (Article 81 of the Labor Code).
This paragraph applies to three categories of workers; heads of organizations (heads of branches and representative offices), their deputies and chief accountants of organizations. Consequently, on this basis for dismissal a special subject acts, since other employees cannot be dismissed under clause 9 of Art. 81 TK. If the adoption of an unreasonable decision did not entail the consequences specified in paragraph 9, then there are no grounds for dismissal of the persons listed above. It should be kept in mind that an unreasonable decision must be specific.
2.10. Clause 10. One-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (Article 81 of the Labor Code).
The heads of branches and representative offices are appointed by the legal entity - the founder and act under his power of attorney. Clause 10 of Art. 81 of the Labor Code applies only to heads of organizations, structural divisions and their deputies.
This increased responsibility of this category of persons is due to their special legal status. They occupy positions of management of production and labor associated with power and administrative powers and with the special nature of job functions. One gross violation by the head of an organization or his deputy of official duties can cause great harm to the entire organization.
Clause 10 of Art. 81 of the Labor Code does not apply to employees who are subject to charters and discipline regulations, since the latter provide for specific offenses for which employees can be dismissed. In such cases, reference is made to the article of the charter on discipline, and not to this paragraph, since it applies only to the heads of organizations (their separate divisions) and their deputies.
2.11. Clause 11. Submission by an employee to the employer of forged documents or knowingly false information when concluding an employment contract (Article 81 of the Labor Code).
This paragraph filled the gap that existed in the previous Labor Code. The employer is obliged to prove the deliberate falsity of the documents or information submitted by the employee when applying for a job. It seems that he must also justify that false information may affect the work of this person. For example, if a woman, exhausted by unemployment, hid when applying for a job that she has a young daughter, then it is unlikely to be fair to fire her for this.
2.12. Clause 12. Termination of access to state secrets if the work performed requires access to state secrets (Article 81 of the Labor Code).
According to the previous legislation (clause 2 of article 33 of the Labor Code), the employment contract in this case was terminated due to the employee’s incompatibility with the position held or the work performed, while maintaining certain guarantees (for transfer, payment of severance pay, etc.), which is not provided for in clause 12 Art. 81 TK.
2.13. Clause 13. Termination of an employment contract in cases provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization (Article 81 of the Labor Code).
The previously existing Labor Code (clause 4 of Article 254) provided such a basis only for the head of the organization. The Labor Code supplemented it with members of the collegial executive body of the organization. Moreover, this reason for dismissal is stated in the order and work book of the manager with reference to clause 13 of Art. 81 of the Labor Code and the corresponding clause of his employment contract, indicating the specific reasons for this dismissal.
2.14.Clause 14.(Article 81TC).
Reference - it provides for termination of an employment contract at the initiative of the employer in other cases established by the Labor Code and other federal laws.
In such cases, these grounds are not indicated with reference to paragraph 14 of Art. 81 of the Labor Code, but on the norm of the Labor Code or a specific law providing for such a basis.
In-section
XII
TC for some employees other additional grounds for their dismissal are provided. Yes, Art. 278 of the Labor Code specifies two new additional grounds for terminating an employment contract with the head of an organization;
1) in connection with the removal from office of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);
2) in connection with the adoption by the authorized body of a legal entity or the owner of the organization’s property, or a person (body) authorized by the owner of a decision on the early termination of the employment contract. In this case, the manager is dismissed early in the absence of his guilty actions (inaction), he is paid compensation for the early termination of the employment contract with him in the amount determined by the employment contract. (Article 279 of the Labor Code).
The head of the organization himself has the right to terminate the employment contract early by notifying the employer in writing no later than one month in advance. With the head of the organization in accordance with Art. 275 of the Labor Code, an employment contract is always concluded for the period established by the constituent documents of the organization or by agreement of the parties.
An employee who works for an employer - an individual, as well as a home worker may be dismissed on the grounds provided for in the employment contract (Articles 307, 312 of the Labor Code). Severance pay upon dismissal of these employees and notice periods are established by the employment contract. The same applies to employees religious organizations(Article 347 of the Labor Code).
Task
When compiling the annual report, economist Krylova made a serious mistake, for which she was fired by her employer under paragraph 3 of Art. 81 Labor Code of the Russian Federation. Krylova appealed the dismissal to the court, citing in the statement of claim that she had been working in this organization for about 5 years, had been repeatedly awarded bonuses and received awards for good work, and this was the first time she had made a mistake. Under what conditions is dismissal allowed under paragraph 3 of Art. 81 Labor Code of the Russian Federation? What decision will the court make in this case?
According to paragraph 3-b of Art. 81 dismissal is lawful if it is discovered that the employee is not suitable for the position held or the work performed due to insufficient qualifications confirmed by certification results. In this case, insufficient qualifications must be established on the basis of objective data obtained as a result of the employee’s certification.
Certification is mandatory; for this purpose, a
certification commission. The procedure and conditions for certification are determined by the relevant regulations approved by the head of the organization, unless a specific procedure and conditions are established for a particular category of employees by special regulatory legal acts.
Dismissal is permitted, in accordance with Part 2 of Article 81, if it is impossible to transfer the employee with his consent to another job. Without compliance with this condition, dismissal cannot be recognized as legal.
To dismiss an employee who is a member of a trade union on this basis, a reasoned opinion of the relevant elected trade union body is also required. According to Article 82 of the Labor Code: When dismissing employees who are members of a trade union, during certification, a commission member from the relevant elected trade union body must be included in the certification commission.
Based on the conditions of the task, certification was not carried out. In this case, the dismissal will be declared illegal by the court and Krylova will be reinstated at her previous place of work. If we assume that Krylova was a member of the trade union, then it was also necessary to obtain a reasoned opinion from the trade union body on her dismissal. This, apparently, was not done either.
Based on Article 394 of the Labor Code, Krylova should be reinstated to her previous job. Krylova must be paid the average salary for the entire period of forced absence. If the incorrect formulation of the reason for dismissal prevented Krylova from getting another job, then the court will decide to pay Krylova the average salary for the entire period of forced absence. The court, at Krylova’s request, may also rule on monetary compensation for moral damage caused by unlawful dismissal. At Krylova’s request, the wording of the grounds for dismissal may be changed to voluntary dismissal (if Krylova has no desire to be restored to her previous job). According to Article 396 of the Labor Code, the decision to reinstate illegally dismissed Krylova is subject to immediate execution. If the employer delays the execution of such a decision, the court will rule on paying Krylova average earnings for the entire time of delay in execution of the decision.
Test task: does the employer have the right to temporarily transfer an employee to a job requiring lower qualifications?
Select the correct answer: a) yes, he has the right in all cases where translation is necessary; b) such a translation is illegal; c) may, but only with the written consent of the employee.
V) may, but only with the written consent of the employee.
An employee can be transferred to a job requiring lower qualifications only with his written consent (in accordance with Part 3 of Article 74 of the Labor Code). If the job matches the employee’s qualifications, his consent to a temporary transfer is not required.
Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, which spells out all the features of the work procedure - from the number of working hours to the procedure for calculating bonuses or disciplinary sanctions. Employees often violate these rules. What are the consequences of non-compliance with labor regulations for employees and are the employer’s actions legal in cases where violations are recorded?
What is labor discipline?
Labor discipline is a set of rules developed by an enterprise in order to optimize the work process. It is based on the responsibilities of each employee prescribed by law.
Article 21 of the Labor Code of the Russian Federation “Basic rights and obligations of an employee:
“The employee is obliged:
- conscientiously fulfill his labor duties assigned to him by the employment contract;
- comply with internal labor regulations;
- observe labor discipline;
- comply with established labor standards;
- comply with labor protection and occupational safety requirements;
- treat with care the property of the employer (including the property of third parties located at the employer, if the employer is responsible for the safety of this property) and other employees;
- immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the employer’s property (including the property of third parties located at the employer, if the employer is responsible for the safety of this property).”
In addition to the basic requirements, labor discipline rules may also specify other responsibilities of employees related to the specifics of each organization. These include: compliance with corporate ethics, keeping trade secrets, insubordination, etc. In case of a single violation of the regulations, a disciplinary sanction provided for by law may be imposed on the employee. Its type depends on the severity of the offense. The main violations of labor discipline include:
- non-compliance with labor safety rules resulting in an industrial accident;
- absenteeism or systematic tardiness;
- showing up to work while intoxicated;
- immoral acts;
- theft work or personal property of employees;
- intentional failure to fulfill duties or fulfill them not in full;
- falsification of legal documents;
- ignoring orders leader.
In private enterprises, the issue of choosing a disciplinary sanction is decided directly by the manager. Punishment is considered a manager's right, but not an obligation. Therefore, the employer independently decides on the advisability of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.
Types of disciplinary sanctions and their application
Disciplinary sanctions are aimed at improving the quality and organization of work. Based on the employment contract, employees are obliged to strictly comply with all regulations, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, penalties regulated by law may be imposed on the employee.
“For committing a disciplinary offense, that is, failure or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:
- comment;
- dismissal for appropriate reasons.”
A disciplinary violation will be considered an offense committed only due to the employee's fault. The employer is obliged to demand compliance with all rules only if all conditions for this are provided at the enterprise. At the same time, each employee must be familiar with the work schedule, labor protection rules and his official duties, which is confirmed by his personal signature.
Article 81. Termination of an employment contract at the initiative of the employer
“An employment contract may be terminated by the employer in the following cases:
- repeated failure by an employee to perform labor duties without good reason, if he has received a disciplinary sanction.”
Article 192 of the Labor Code of the Russian Federation. Disciplinary action
“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of the first part of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of the first part of Article 81 of this Code in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by an employee at the place of work and in connection with the performance of his job duties.
When imposing a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.”
Disciplinary action may be issued based on memo. If the employer considers this to be an insufficient reason, he can initiate disciplinary proceedings with the participation of the workforce. The result of the commission meeting will be an act with a decision on the type of disciplinary punishment.
Examples of violations of labor discipline
Practice knows many examples of violations of labor discipline. Most of them relate to minor offenses and are often limited to verbal remarks.
For example, employee Ivanov. A.A. violated work regulations by showing up for work an hour later than scheduled without a valid reason. In this case, the employer may limit himself to a verbal warning, which is issued in the form act of disciplinary violation. In case of systematic delays, Ivanov A.A. may be reprimanded, however, the law does not allow a reprimand to be issued immediately after the first offense.
A reprimand may result, for example, from failure to fulfill his official duties by warehouse manager V.V. Petrov, which resulted in financial losses for the enterprise in the form of failure to sign an agreement with suppliers. The employee may be issued ordinary or severe reprimand(at the discretion of the employer).
A one-time violation that entails dismissal can be an employee’s appearance at the workplace in a state of intoxication, theft of official property, or actions that provoked an accident or accident at work.
Any decision on disciplinary action may be appealed by the employee in court. Then the help of a professional lawyer competent in matters of labor legislation of the Russian Federation will be relevant.
Repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction (Article 81 of the Labor Code)
Since Art. 192 of the Labor Code classifies dismissal for violation of labor discipline as a disciplinary measure, then dismissal for repeated violation of labor duties is possible in compliance with the rules established for the imposition of disciplinary sanctions. Dismissal under clause 5 of Art. 81 of the Labor Code is legal when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of duties assigned by the labor regulations; 2) failure to fulfill these duties for unjustifiable reasons, i.e. committed illegally intentionally or through negligence; 3) repeated culpable violation of labor duties, i.e. This is not the first time that a disciplinary offense has occurred, for which the employee was previously (during the last
working year) a disciplinary measure was applied; 4) specific misconduct before dismissal, from the moment of which more than a month has passed.
The resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992 states (clause 24) that a violation of labor discipline is the failure or improper performance, through the fault of an employee, of assigned labor duties (violation of internal labor regulations, job descriptions, regulations, administration orders, technical rules, etc.).
Such violations include, in particular: 8
- a) the absence of an employee from work without good reason for up to four hours during the working day, his presence not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;
- b) the employee’s refusal, without good reason, to comply with new labor standards amended in accordance with the established procedure;
- c) refusal or evasion without good reason from a medical examination of an employee, for which it is mandatory, as well as the employee’s refusal to undergo special training during working hours and pass exams on safety precautions and operating rules, for which this is a mandatory condition for admission to work.
Refusal to perform work that is not part of the employee’s job responsibilities (except for cases of mandatory transfer for employees), or to perform a public assignment, as well as incorrect actions of an employee that are not related to job responsibilities, do not constitute a violation of labor discipline and therefore cannot serve as a violation of labor discipline. grounds for termination of the employment contract under clause 5 of Art. 81 TK.
Consequently, dismissal will be lawful if, immediately before dismissal, the employee committed a disciplinary offense, and earlier during the last working year a disciplinary sanction was imposed on him for violating labor discipline and it was not lifted.
When accounting for penalties, their legality is checked, i.e. whether the order of their application was observed. A penalty imposed in violation of the established procedure is not taken into account. Deprivation of a bonus is not a disciplinary sanction, so it must be taken into account. If at least one of the four previously specified conditions is absent, termination of the employment contract under clause 5 of Art. 81 of the Labor Code is considered illegal.
Dismissal is possible subject to the deadlines and procedures established by Art. 193 of the Labor Code (no later than one month from the date of detection and no later than six months from the date of commission of the offense, and based on the results of an audit or inspection of financial and economic activities - no later than two years from the date of commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., under clauses 5, 6, 8, 10 and 11 of Article 81 of the Labor Code). At the same time, only the time the employee is ill or on vacation is not counted in the monthly period for applying a disciplinary sanction in the form of dismissal. In other cases, absence from work does not interrupt the specified period. As previously stated, for this dismissal, the employer must request the opinion of the trade union body on the dismissal (Article 373 of the Labor Code).
