Termination of the contract at the initiative of the employer. Termination of a fixed-term employment contract. Termination of relations with a foreign employee

Termination employment contract at the initiative of the employer must be carried out in strict accordance with labor legislation. In this case, in some cases, the employer will have to fulfill a number of mandatory conditions. All the nuances are described in more detail in our article.

Grounds for termination of an employment contract at the initiative of the employer

Termination of labor relations between an employee and an employer at the initiative of the latter is permissible in a limited number of cases, a full list of which is contained in Art. 81 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).

Let's consider all legal grounds for dismissal at the request of the employer in accordance with Art. 81 of the Labor Code of the Russian Federation and taking into account the explanations contained in the resolution of the plenum of the Supreme Court of the Russian Federation “On the application of the Labor Code by Russian courts” dated March 17, 2004 No. 2:

Liquidation of a company or termination of the activities of an individual engaged in entrepreneurial activity. In this case, dismissal occurs even if the employees are on vacation or sick leave. Liquidation can occur either by a reasoned decision of the owners/fiscal authority, or when the company is declared bankrupt. The liquidation of an individual entrepreneur is associated with its recognition as insolvent by a court decision, refusal to renew a license for a particular type of activity, the death of a citizen or the termination by an individual of activities related to at will or the decision of the Federal Tax Service. If we are talking about an individual employer working without registering as an individual entrepreneur, the termination of his activities is understood as the actual termination of business activities.
Reduction of staff or number of employees (both legal entities and individuals).
The inadequacy of an employee for the position he occupies, as determined by the certification commission, due to incompetence and lack of qualifications.
When the owner of the company changes (this clause applies only to the manager, his deputies and the chief accountant).
Failure to fulfill labor obligations many times without good reason. In this case, the main condition will be the existence of a disciplinary sanction. To find an employee guilty, the employer will need to provide evidence that the employee, without good reason, did not fulfill (or improperly performed) his work obligations. Such violations include absence from work for a long time (while performing work labor responsibilities), refusal to perform duties when labor standards change, which occurred in accordance with Art. 162 of the Labor Code of the Russian Federation, refusal of mandatory medical examination or special training during working hours.
Gross violation of labor duties by an employee, committed at least once. These include absenteeism (and even simply the absence of an employee from the workplace without good reason for more than 4 hours in a row), going to work drunk or under the influence of drugs/toxic substances, disclosure of secrets protected by law, theft, violation of labor protection requirements, resulting in aggravated consequences . The list of such gross violations is exhaustive.
Loss of trust as a result of guilty actions, including those not related to work (theft, corruption, etc.). The basis applies to employees servicing the flow of cash and other material assets.
Committing an act contrary to the morals of society - in relation to employees performing educational functions.
Making a rash decision by the head (his deputies, chief accountant) of the company, which led to property damage.
Gross violation of his labor duties by the head (his deputy) of the company.
Presentation of false documentation during employment.

The procedure for terminating an employment contract at the initiative of the employer

All conditions that must be met when termination of an employment contract at the initiative of the employer, are reduced to the latter’s fulfillment of a number of formalities and compliance with the legality of the dismissal.

In particular:

It is unacceptable to dismiss employees (except in cases of liquidation of an enterprise) while they are on vacation or sick leave;
Single mothers with children under 14 years of age (if the child is disabled, then until his 18th birthday), mothers of young children who have not yet turned 3 years old, and persons raising a child cannot be fired due to layoffs, disqualification, or in connection with a change in the owner of the business. without a mother.

When dismissing employees due to layoffs or due to disqualification (inconsistency with the position held based on certification results), the following must be observed: special order. Thus, the employee must be offered (against his signature) the option of employment in the company for another position (suitable for his health and the scope of the functions performed).

Moreover, a vacant position with lower qualifications and/or low pay may also be offered. The retiring employee must be offered all available positions locally with that employer. If the employee is not satisfied with such an offer, he is fired.

When dismissal due to loss of trust or an employee committing an immoral act (clauses 7-8 of Article 81 of the Labor Code of the Russian Federation), committed outside of work or in connection with a situation not related to the performance of job duties, it is necessary to ensure that no more than a year has passed from the date detection of misconduct.

When dismissing an employee who has not yet reached the age of 18, except in cases of liquidation of the employing company, it is necessary to obtain the consent of the state labor inspectorate and the commission dealing with the affairs of persons under the age of majority.

Read about the procedure for paying compensation upon dismissal in our articles:

Results

The grounds and procedure for dismissing employees by order of the employer must clearly comply with the letter of the law. If the employer does not take into account all the nuances specified in labor legislation, the employee will be able to challenge his dismissal in court. The result of such a trial will be reinstatement, payment of lost wages and penalties.

Employers must ensure that there is sufficient evidence to prove an employee's guilt if he is fired due to misconduct, negligence or breach of duty.

Any citizen Russian Federation the right to freely choose a profession and field of activity is granted, any forms of forced labor are prohibited, this norm is enshrined in Article 34 of the Constitution of the Russian Federation.

The main regulatory document regulating the sphere labor relations, is the Labor Code of the Russian Federation (hereinafter referred to as the Code). It is its norms that provide basic protection of the rights of an employee against unjustified dismissal at the initiative of the employer. Article 81 of the Code describes in detail the grounds for dismissal of all categories of workers. Special norms that apply to certain categories of officially employed citizens are also indicated.

The disposition of this article applies to employees of enterprises of all forms of ownership. Reasons for dismissal can be divided into two blocks:

individual qualities of the person himself (low discipline or qualifications);
restructuring, liquidation of the organization.

Conditions and main reasons for termination

The legal consequences of dismissing an employee are the restriction of his right to work. Therefore, the legislator clearly defined the list of such cases. All of them are spelled out in paragraphs 1-3, 5, 6, 11, 12 of Art. 81 of the Labor Code of the Russian Federation, where general grounds for dismissal include the following reasons:

Liquidation of an organization or closure individual entrepreneur . In such cases, the enterprise completely ceases its activities, its rights and obligations are not subject to transfer to other persons. All employees without exception are dismissed.
Reduction of staff or number of employees. A person who falls under this rule is required to be offered another position that corresponds to his skills and state of health. The following persons have priority over other redundant workers:
- who are dependent on two or more people;
- in whose family no one else works;
- who were injured at work;
- disabled people of the Second World War;
- improving qualifications on-the-job at the request of the employer;
- other persons separately specified in the agreement.
Inconsistency of the employee with the position or job, the implementation of which is entrusted to him, due to low qualifications. The contract is terminated solely on the basis of the conclusion of the certification commission about the professional and business qualities of the employee and other evidence. Persons holding positions are not subject to certification less than a year, pregnant women, women with children under 3 years of age. Dismissal is possible only after the employee has been offered all positions that correspond to his qualifications and state of health.
Repeated and systematic ignoring the obligations stipulated in the employment contract without clear explanations or valid reasons. The main condition for dismissal for this reason is the commission of a new disciplinary offense if the previous penalty has not been lifted. It could be:
- absenteeism from work or absence from the workplace for more than 4 hours without a valid reason;
- presence at work while intoxicated, as well as with signs of using narcotic or toxic substances and precursors. The fact of such a condition must be proven by conducting a medical examination or providing other evidence;
- disclosure of official information, commercial or state secrets protected by law, as well as personal data of another person if they became known as a result of the performance of work duties. The obligation of non-disclosure of certain information must be provided for in;
- entry into force of a sentence or resolution of the body entrusted with the right to impose an administrative penalty on the theft of property committed by a person at the place of work;
- negligent attitude towards ensuring labor safety at work, which entailed serious consequences: disasters, accidents, breakdowns or the creation of a real threat of such consequences.
When provision by a person, when applying for a job, of information and documents that contain false information: a document that certifies the identity of the person being hired, a certificate of pension insurance, a military ID, a document of graduation educational institution, if he is applying for a job that requires special knowledge or training.

Paragraphs 4, 7-10, 13 of Article 81 of the Code define special grounds for dismissal for individual categories employees:

Change of owner legal entity . If the manager, his deputies and the chief accountant refuse further cooperation with the new owner, this is considered grounds for termination of the employment contract. According to judicial practice, dismissal is possible only if there has been a change of ownership as a whole, and not just subordination to the organization.
Commitment an employee who services commodity and monetary assets, intentional crime, undermining his credibility. To dismiss a person on this basis, an agreement on full financial liability is not necessary. Judicial practice allows termination of a contract with this category of persons, even if the fact of selfish offenses is not directly related to work. Actions that undermine trust in an employee can be either systematic gross violations or one-time violations.
Committing an immoral offense an employee who is entrusted with the function of education, as a result of which he cannot perform this work. Persons entrusted with educational functions include teachers, instructors, on-the-job training specialists, and educators.
Making a deliberately unjustified decision, which entailed material losses for the enterprise, and also caused misuse and damage to property. In this case, the subject of the offense can only be the management of the organization, which bears financial liability for your actions. A mandatory requirement is the occurrence of unfavorable consequences that could have been prevented by making a different decision.
Establishments of fact gross disregard of norms labor legislation in relation to employees by the management of the organization.
Dismissal of a manager or member of a collective executive body based on the reasons specified in the contract.

In addition to the above circumstances, the legislator also established a number of additional grounds for dismissal of employees, which are provided for in paragraph 14 of Art. 81 of the Code, namely:

dismissal of the head of the organization (Article 278 of the Code);
the employee did not pass (Article 71 of the Code);
a decision to dismiss the head of an organization made by the owner of the property, an authorized person or body (Article 278 of the Code);
in case the employer is individual or is it work in religious organization, then the grounds for dismissal are also provided for in the contract;
use by a teacher of methods of physical or psychological violence against a student or pupil (clause 2 of Article 348.11 of the Code);
single violation by an athlete international rules on the prohibition of doping (clause 2 of article 348.11 of the Code).

All the nuances this process And possible reasons abbreviations are presented in the following video:

Procedure and possible problems

According to Art. 180 of the Code, in the event of dismissal of an employee due to liquidation or staff reduction, it is necessary to notify him in writing no less than two months.

An employee dismissed in accordance with clauses 1, 2 of Art. 81 of the Code, payment of severance pay is required, the amount of which is determined by the average monthly earnings (Article 178 of the Code).

A benefit in the amount of two weeks' average maintenance is paid to a person who, due to imprisonment medical commission can no longer hold a certain position or be at work in an organization due to health conditions (clause “a”, paragraph 3 of Article 81 of the Code).

If there are any grounds for dismissal of personnel, management is obliged to inform the trade union body in advance.

If planned mass reduction employees, the management of the enterprise is obliged to provide the trade union with detailed information indicating the reasons for such a decision no later than three months before it takes place.

Termination of a contract if the employee’s guilt is proven can be carried out in a simplified manner. The employer is not obliged to warn the employee, pay severance pay or take into account the opinion of the trade union body.

When imposing a penalty, it is necessary to request an explanation from the employee; if he refuses to write it, then a report is drawn up. Within a month, an order is issued to impose disciplinary measures on the perpetrator. The monthly period should be calculated from the day when the misconduct became known, but it does not take into account sick leave and vacation time. The time for issuing an order should not exceed 6 months and is calculated from the day the offense was discovered.

Nuances of the procedure in special cases

To employees whose dismissal is possible only after agreement with certain government agencies, relate:

persons under 18 years of age (Article 269 of the Code);
pregnant women (Article 261 of the Code);
women with children under 3 years of age, single mothers who have a dependent child under 14 years of age or a disabled child under 18 years of age (Article 373 of the Code), persons who are raising these children without their mother;
managers and deputies trade union bodies who are not exempt from their main activities (Articles 373, 374 of the Code).

Pregnant women and persons under 18 years of age can be fired only in the event of liquidation of the enterprise. The law also does not allow dismissal during vacation or temporary disability (Part 6 of Article 81 of the Code), with the exception of liquidation or termination of the company’s activities.

The legislation provides the grounds on which the employer has the right to terminate. They are established by Art. 81 Labor Code of the Russian Federation. Let's look at the norm in more detail.

Reasons

Dismissal under Art. 81 of the Labor Code of the Russian Federation is allowed when:

Gross violations by an employee

They are defined in paragraph 6 of Art. 81 Labor Code of the Russian Federation. Gross violations by an employee of his duties include:

Notes

Termination of the contract during liquidation and reduction under Part 1 of Art. 81 of the Labor Code of the Russian Federation is permitted if it is not possible to transfer an employee to another job available to the employer, with the written consent of the employee. This may be a vacant position corresponding to the qualifications, a lower-level or lower-paid position. In this case, the health status of the employee must be taken into account. The employer, in accordance with part 2 of Art. 81 of the Labor Code of the Russian Federation, is obliged to offer the employee all vacancies that meet the above requirements and are available in the given area. The manager must additionally offer work in another territory, if this is expressly established in the In case of termination of the activities of a division of the enterprise located in another area, the contract is terminated in the manner prescribed for

Nuances

Termination of the contract on the grounds established in clauses 7 and 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, when, as a result of guilty actions, the management of the enterprise has lost confidence in the employee, the immoral act was committed outside of work or at the place of its implementation, but is not related to the performance of duties, is allowed no later than 1 year from the date of discovery of the violation. It is prohibited to terminate a contract during an employee's vacation or sick leave period. The exception is cases of termination of the contract on the grounds established by paragraph 1 of Art. 81 Labor Code of the Russian Federation.

Liquidation of a company or termination of an individual entrepreneur's work

This basis for termination of the contract is provided for in paragraph 1 of Art. 81 Labor Code of the Russian Federation. The legislation does not clarify the concept of “liquidation of an enterprise”. Accordingly, when applying the commented norm, it is necessary to be guided by the provisions of the Civil Code. Article 61, in particular, defines the procedure for liquidating an enterprise. It involves the termination of the company’s activities without the transfer of responsibilities and rights by way of succession to other persons. Exceptions are made in cases specified by law. Termination of contracts with employees is carried out on the basis of a decision made at a meeting of company participants. For direct dismissal, the fact of liquidation of the enterprise is important. If disputes arise regarding the reinstatement of employees at work, proof of the actual termination of the organization's existence falls on the defendant. As for an individual entrepreneur, the corresponding decision can be made by himself or by the court (in connection with the recognition of his insolvency). Termination of the work of an individual entrepreneur may also be caused by a refusal to renew a permit to carry out certain activities or by the expiration of the state registration certificate.

Reduction

Termination of relations with employees on the basis established by clause 2 of Art. 81 of the Labor Code of the Russian Federation, is allowed subject to a number of conditions. In particular:

When terminating contracts on the grounds established in clause 2 of Art. 81 of the Labor Code of the Russian Federation, when determining whether an employee has a preemptive right to remain at the enterprise, qualifications and labor productivity indicators are taken into account.

Employee non-compliance

Art. 81, clause 3 of the Labor Code of the Russian Federation determines the reason for the impossibility of continuing the citizen’s stay on the staff of the enterprise. An employee’s non-compliance implies insufficient qualifications, which is confirmed by the results of certification. An assessment of an employee’s business qualities is carried out in conjunction with an analysis of other evidence with the participation of a representative body of employees of the enterprise. The procedure for conducting certification activities is determined by federal legislation, as well as other regulations in the sphere of labor. Termination of the contract in accordance with paragraph three of Art. 81 of the Labor Code of the Russian Federation is allowed provided that it is impossible to transfer the employee to another position with his consent.

Change of owner

Termination of the contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed with a certain category of workers. These include, in particular, the head of the enterprise, his deputies, as well as the chief. accountant. Other employees cannot leave due to a change of ownership. In this case, one nuance should be taken into account. Termination of relations under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed if a change of owner has occurred in relation to the property of the entire enterprise as a whole. The contract with the officials listed above cannot be terminated if the jurisdiction/subordination of the enterprise has changed without fulfilling the main condition.

Repeated failure to fulfill duties

In case of repeated violations of discipline, termination of the contract with the employee is allowed if he has received penalties for previously committed offenses. Sanctions are provided for an employee for failure to fulfill the duties established in the rules of procedure or the contract. If disputes arise regarding dismissal for violations, the head of the enterprise must prove that the misconduct was actually committed and could become the basis for termination of the relationship. In this case, the employer is obliged to comply with the deadlines specified in Art. 193 TK.

Single violation

Paragraph 6 of the commented norm establishes cases in which a contract with an employee may be terminated if he commits a gross misconduct once. The list of violations is considered exhaustive. At some enterprises, personnel activities involve confidential information. Dismissal for disclosing it is permitted subject to a number of conditions. In particular, the corresponding obligation must be established in the contract, specific information that is not subject to public disclosure is determined, the information was entrusted to the employee in connection with the performance of his duties.

Conclusion

Dismissal of employees must be carried out exclusively on grounds established by law. In this case, the employer is obliged to comply with the rules and deadlines. In particular, the head of the enterprise must notify the staff about upcoming events in writing against signature, and issue an order/instruction. Compliance with legal requirements regarding payments to resigning employees is also important.

Probably everyone has to deal with dismissal in their life. Leaving of your own free will, and even for a larger salary - although exciting, pleasant stage: everything is ahead, broad prospects, interesting acquaintances, new job. But how does a person with whom a relationship is broken off feel, even without blaming him for anything? Know your rights and obligations as an employer, master the basics of the Labor Code - literacy in this matter will allow you to get through difficult times, receiving from this, if not material benefit, then at least good life experience.

Requirements and nuances of dismissal initiated by the employer

Labor relations are a two-way process, accordingly, and the termination of mutual obligations can be initiated by either one party or the other, this is regulated by Article No. 77 of the Labor Code of the Russian Federation. The parties can also agree to terminate the contract by mutual consent; this is a separate section of the Code.

If we go from the general to the specific, all grounds for dismissing an employee, generally speaking, can be classified into 2 categories:

objective, those that are less dependent on the will of the parties, for example, liquidation of an enterprise, reduction in personnel due to the economic crisis or change of owner;
subjective - those that are influenced by competencies, personal qualities or life situations, related to a person and his relationship with the employer, here an example is dismissal when the employee does not want to work anymore for a certain salary, or the management of the enterprise decides that such an employee does not benefit the company, etc.

But neither the first nor the second categories in any way affect the formal side of the issue: dismissal takes place according to a single procedure with particulars depending on the grounds for termination of the contract. Here, most likely, we can talk about emotional: comfortable or stressful situation when a relationship breaks down. But don’t forget about the material component. After all, if an employer fires a person on his own initiative, but due to objective circumstances, this entails increased compensation payments. And if an employee does not suit the company due to his incompetence, violates corporate requirements or causes damage to the enterprise, the contract with him is terminated only with standard payments, and in some cases, with penalties.

Let's look at the objective and subjective reasons when a contract is terminated at the initiative of the employer.

If we count article by article, there are only 11 such grounds - under Article No. 81 of the Labor Code of the Russian Federation, and they contain both reasons that apply to all employees, and those that apply only to certain categories. Additionally, there is one more ground provided for in Article No. 71: refusal to hire someone during a probationary period.

Key grounds for dismissal at the will of the employer: reduction, liquidation, “under article”

6 key points for terminating a contract at the initiative of the employer

As mentioned above, all the main reasons for dismissal at the will of the employer are concentrated in Article No. 81 of the Labor Code of the Russian Federation. It should be noted that the eighty-first article is the most extensive of all the sections that reflect the grounds for termination of the contract. And this is logical, because Labor Code provides for a number of reasons that give an enterprise the opportunity to cancel contractual obligations with hired worker both on objective and subjective grounds.

Let's figure out what legitimate options for dismissing an employee are available, what are the positive and negative points for both sides can be seen when considering this issue.

Liquidation of a company is the No. 1 objective reason for how compensation is paid

The process of terminating the labor obligations of the employee and employer is reflected in the first paragraph of Article No. 81 of the Code. It is important to take into account here that the concept of “liquidation” includes the complete closure of a company, revocation of a license or bankruptcy of an individual entrepreneur without the possibility of restoring activities. As a result, all employees, regardless of position and competencies, are relieved of work. This is the result of the liquidation of the enterprise. In this case, the company or private entrepreneur loses its legal status and stop working completely.

There may be several reasons for closing both an LLC and an individual entrepreneur, while the grounds for liquidation do not affect the procedure for dismissing employees of the enterprise; in this case, the very fact of absolute cessation of activity is important.

The formal process for terminating employment during liquidation is as follows:

An order is issued to liquidate the organization; this can be done on the basis of a decision of the owners, a court ruling, as well as the closure of an individual entrepreneur. The following documents that must be issued by the company are a notice of closure, which is sent to the Federal Tax Service and social funds (PFR and Social Fund), the trade union (if there is one at the enterprise), the employment service, as well as creditors of the closing enterprise are warned. A liquidation balance sheet is drawn up taking into account calculations: first of all, the interests of employees are taken into account, secondly - of creditors.
The first step in liquidating a company is issuing an order specifying the exact date
As soon as the decision on liquidation is made (or judgment bankruptcy) all employees of the enterprise must be notified at least 2 months in advance of the termination of their employment labor contracts. This is done with the help of an official notice, which is sent to the dismissed person by registered mail or delivered in person. At the same time, a receipt is taken from the employee that he has read the document.
Notice of liquidation must be served on the person 2 months before the event takes place.
An order to terminate the employment contract under Article No. 81, part one is being prepared. The official grounds for this are a liquidation order, a protocol, a decision of a judicial authority, as well as notification of the employee and his refusal of the offered position.
In an order to terminate an employment contract under Article 81, part one, clause 1 of the Labor Code of the Russian Federation, the basis must indicate the number and date of the document confirming the official liquidation
A law-abiding employer must provide all employees with mandatory payments, which include:
In addition to this, there is an additional compensation benefit in the amount of earnings for a period of one to three months, which may include:

As a result: an employee dismissed due to the liquidation of a company, as well as a reduction in staff, can “earn” an additional total of 3 average monthly salaries. In this way, the state supports the dismissed employee during the difficult period of being without work. After this period, the person either continues to receive unemployment benefits or finds a job.

Here it is necessary to clarify that not all employees can receive the full amount of severance pay; there are some categories that receive compensation only in the amount of two weeks’ average earnings, these include:

part-time workers;
seasonal workers;
employees hired under a fixed-term contract (for a period of up to two months).

It should be taken into account that the grounds for dismissing employees during liquidation and staff reduction are identical in terms of notification and payments. Moreover, as for the above categories of employees, they are notified of the upcoming liquidation of the organization (and reduction) in the following order:

part-time and seasonal employees - 7 days before the event (Article 296 of the Labor Code of the Russian Federation);
conscripts (workers who have entered into an employment contract for a period of up to sixty days) are notified of dismissal at least 3 days before liquidation (reduction).

Note that if a person receives the first compensation simultaneously with his dismissal, then for the second and third payments he needs to contact his former employer, for this he must provide:

a certificate from the employment service, which certifies the date of registration;
work book, which contains last record- dismissal due to liquidation.

The order for the payment of benefits, both in case of liquidation and reduction of personnel, indicates the grounds for compensation: absence of an entry in the labor record and the date of registration with the Central Labor Office

If we talk about the pros, cons and nuances when using such a basis for dismissal as the first paragraph of Article No. 81 (liquidation), everything is logical:

the employer fires the entire staff;
are subject to dismissal, including preferential categories of employees and, naturally, is not taken into account: whether the person is on vacation, on sick leave, or other preferences of a working specialist;
a dismissed person receives compensation in the amount of one to three months' salary;
accordingly, if a person falls ill within thirty days after dismissal, he will not receive disability benefits (this is compensated by compensation).

You need to know the general requirement for payment of benefits and standard package calculation: if the dismissed person cannot come up on the last day of work for the money due to him, then it is paid to him later upon his first request. The employer is given 1 day to do this after the application.
Wages for days worked are calculated in accordance with the requirements of Goskomstat Resolution No. 1 of 01/05/2004. Its payment is made in cash at the company's cash desk or by transfer to a bank card.

If good reasons are needed to liquidate an enterprise, then the closure of an individual entrepreneur can take place simply because the license has expired, or the person wants to stop business activities

Nuances of foundation No. 2 - reduction in staff and numbers

The second objective basis, regulated by Part No. 2 of Article No. 81 of the Labor Code of the Russian Federation for dismissal at the initiative of the employer, is a reduction in staff and (or) headcount.

Here it is necessary to separate two concepts - unit reduction, when a certain position is simply removed from the staffing table, and personnel reduction, when organizational structure remains the same, but the number of people is reduced. As a rule, when reducing staff, both the first and second options are taken together.

For example: an entrepreneur who owns two flower stalls and delivers flowers to her home using a courier vehicle has, accordingly, four salespeople and drivers on her staff. If she, closing one point, simply fires one or two salespeople, this will be a reduction in the number (positions will remain), but if she decides to lay off the driver, this will be a form of reduction in both the number and staff.

If we consider the formal procedure for terminating employment contracts under clause 2 of Article No. 81, it is somewhat similar, but not identical to the liquidation of a company. So, similar to the first scenario:

the employee being laid off must be notified 2 months in advance of the impending dismissal;
the employer is obliged to notify the labor center and the trade union about the reduction;
all compensation compensation remains valid, that is, a person can receive up to three average salaries.

But you need to know that in this option there are significant points that distinguish the dismissal procedure from the closure of an enterprise:

First of all, the employer must prepare an order to reduce staffing levels and (or) headcount. Indicating the reasons (briefly), deadlines, specific positions and employees (it is recommended to do this after analyzing the list: who can be cut and who cannot).
In the first order when reducing staff, the reason, period, positions are indicated, and the specific names of those being dismissed can also be indicated
Adjust the staffing table (be sure to record this in the order).
In many cases, the order to reduce and amend the staffing table is combined into one document, because the persons responsible for the dismissal are usually the same
Along with the notice of layoff, the employer must offer the employee another position on the staff (it is assumed that this will be a lower-ranking and lower-paid position). The document is issued under the personal signature of the dismissed person. If there are no vacancies at the enterprise that the person being dismissed could fill, this is specified in the paper, but with an indication that if a free staff position appears before the date of the person’s dismissal, it will be offered to him.
The employee notification form for layoffs must contain the vacancies that he can fill
And only after receiving a refusal from the proposed position, you can issue an order to dismiss the employee.
The order to terminate an employment contract due to redundancy specifies paragraph 2 of Article No. 81 of the Labor Code of the Russian Federation; the reasons are indicated in the basis: changes in staffing table, number and date of notification, refusal of the offered work

The HR officer or individual entrepreneur here needs to take into account the so-called preemptive right of the employee to retain his position (Code). This requirement states that, first of all, employees with lower qualifications and productivity should be subject to layoffs, and the qualifications of “disputed” employees must be documented (memos from their immediate supervisor or colleagues, Thanksgiving letters, incentives, etc.).

Who cannot be fired either due to layoffs or “under article”

There is another important point in this regard: due to a reduction in staff/numbers, as well as on other grounds that are provided for termination of obligations at the initiative of the employer, it is impossible to dismiss certain categories of employees. Thus, labor legislation prohibits terminating employment relationships:

with everyone who is on sick leave or on vacation;
absent from work for more than four months in a row due to illness;
with pregnant girls and young mothers who are on maternity leave for children under three years of age;
who has a disabled child in their care;
with single mothers;
as well as special cases, such as an employee’s participation in a work group during the preparation of a collective agreement, a striking employee, etc.

In the case of the second paragraph of Article No. 81, keep in mind: if the structure has staff positions with part-time workers, these positions are considered vacant, therefore, the employer is obliged to offer them to employees who are subject to layoffs. Otherwise, it will be difficult for the employer to avoid litigation and decisions not in his favor.

Another point that needs to be taken into account on this basis is that the Labor Code obliges, when choosing from several candidates for a position, to give preference to:

an employee if his family has 2 (or more) children;
persons who have dependents and only they provide for the family (for example, a wife is on maternity leave);
employees who received work-related injuries while working for this employer;
persons studying (or having already completed advanced training) at the expense of the enterprise.

Please note that here, as well as in the event of liquidation of the company, the employer can terminate the contract early (not wait 2 months), but only if he pays the employee additional compensation calculated in proportion to the remaining time. Moreover, this is recorded with the written consent of the dismissed person.

Dismissal option No. 3 - change of owner

This reason, although quite common, is a special case:

termination of the employment contract in this option relates only to TOP management: in this case, the directors of the enterprise, their deputies and the chief accountant “leave”;
dismissed persons in this case receive increased compensation for 3-6 months (it all depends on the agreement with the employer and owners);
V work book in this case, a record of termination of the contract is made under Article No. 81 (clause 4 of the first part).

Dismissal “under article” is the most difficult cases for both parties

A fundamental block of reasons for dismissal is contained in the third, fifth and sixth paragraphs of Article No. 81 (the fourth paragraph is the change of owner, which is mentioned above), in the so-called grounds “under the article”. Any indication of the points and sub-points of these grounds for termination can greatly affect both the salary and the person’s job responsibilities subsequently. Therefore, such reasons are rightfully considered the most conflicting and difficult for both sides.

Ground No. 4 - insufficient qualifications

The complex and stressful article of the Labor Code of the Russian Federation - No. 81 under paragraph No. 3 (insufficient qualifications) - defines the key reason for termination of the contract: the employee’s inadequacy for the position held and his lack of certain professional competencies. The main thing here is that the fact of non-compliance must be confirmed by the results of the certification commission initiated by the employer.

It is also worth paying attention to the fact that when assessing an employee’s competencies, a representative of the trade union must be present at the certification commission (if such an organization exists at the enterprise). And also that in addition to the general list of employees who cannot be fired, young specialists who have not worked in the company for 1 year are added here (for some specialties, for example, teachers, the period increases to two years).

For information: the courts and the labor inspectorate, as a rule, take the side of the dismissed person if there is no solid evidence base for dismissal “under the article”. In this case, there must be results of certification carried out in accordance with all legal requirements. Moreover, the certification commission’s summary of the employee’s professionalism and competencies is assessed together with other justifications on a specific issue (as stated in paragraph 31 of the decision of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2).

Plus there is one of mandatory requirements requirements in this case to the enterprise (as in the case of staff reduction), the employer must offer the dismissed person another place. Moreover, if the contract with the employee was terminated under the third paragraph of part one of Article No. 81, during litigation the defendant must provide justifications and evidence that would indicate that the dismissed person refused to be transferred to another job corresponding to his qualifications. That is, the company must have a written refusal of the proposed vacancy.

A medical assessment of his health may also serve as a justification for removing an employee from his position due to non-compliance.

A step-by-step mini-instruction for dismissing a person on the basis of inadequacy for the position held looks like this:

An order for certification is issued.
The order for certification specifies the purpose, date and timing of the commission.
After passing the test, the conclusion of the certification commission follows, which indicates the points on which a person can or cannot perform his duties efficiently.
The protocol of the certification commission must contain a qualification assessment and recommendations
If, following a group meeting, an employee is given a negative assessment of his competencies, an attestation sheet is drawn up, which indicates the result of the collegial decision and a decision is made on its non-compliance. The paper is endorsed by the subject, indicating that he was familiar with the results.
An employee who has not passed the certification also gets acquainted with the certificate against signature; he has the right to request a copy endorsed by the responsible employee upon dismissal
Next, a notice is drawn up offering the candidate for dismissal new responsibilities. It is no different from a standard notice of staff reduction, except that it indicates another reason for the upcoming termination of the contract, and also indicates the initial data of the commission’s protocol.
A notification-offer for another position in connection with a negative passing of the certification commission may look like this
In addition to all the above documents, the employer must have a person’s endorsement job description employee. Otherwise, proving compliance/non-compliance with the position held will be problematic. The templates and content of the instructions may be different, but what must be observed is that the employee must be familiar with the DI, and the person’s visa must be on it.
The DI must be endorsed by the employee, and the person, at a minimum, must hold it in his hands
If an employee refuses another position offered to him, an official refusal must be issued.
The refusal application is written in free form, the basis is indicated (Clause 3, Part 1, Article 81 of the Labor Code of the Russian Federation), dated and signed.
After completing all the steps, an order is issued to terminate the relationship with the employee. A corresponding entry is made in the work record (we write in full, without abbreviations).
In the order to terminate the contract under clause 3 of part one of Art. 81 (inconsistency) indicates the article of the Labor Code of the Russian Federation and the basis - the decision of the certification commission

Cash payments in this case are standard: salary for time worked and compensation for vacation not taken.

As already mentioned, the list of all the above categories of employees who are prohibited from dismissal at the initiative of the employer is preserved here.

Article 81 of the Labor Code of the Russian Federation, paragraph 5 - repeated failure to fulfill labor duties

If an employment agreement with a person is terminated on this basis, at least 2 violations must be recorded labor discipline. In this case (as, however, always under labor law), the employer must strictly follow all formalities. To dismiss an employee under the fifth paragraph of Article No. 81, facts are needed that the employee has disciplinary sanctions (), these include:

remark (not verbal, but in writing);
reprimand (documented);
dismissal for appropriate reasons.

If an employer terminates a relationship with a person for this reason, he must have documented reasons for dismissal. That is, all misconduct must be recorded, for each fact there must be witnesses to disciplinary violations, it must be proven that the person did not fulfill his job duties, was incompetent, violated the regime or safety rules in the workplace. This is the responsibility of the employer; if an employee files a claim in court, everything will need to be provided to the judicial regulator.

Please note: the employer has the right to dismiss a person due to violation of labor discipline strictly within one month after the second one was issued disciplinary action(third, etc.). Moreover, this time does not include time spent on vacation or on sick leave.

Let's consider the question of what facts and documents must confirm the violation (for the basis - article No. 81, clause 5 of the Labor Code of the Russian Federation):

To record a violation, the employer can use acts of misconduct, signed by at least two witnesses. These can be reports from employees and management, inspection materials, audit results, etc.
The report on the violation must be specific, with dates and facts
The second step, which should confirm this fact, is to receive a written explanation (Article 199 of the Labor Code of the Russian Federation). It is advisable to contact the employee with a reminder of the need to provide an explanatory note in writing; for this, you can draw up a notice in which you indicate: the deadline for providing explanations and explain that in case of failure to provide information, this will be regarded as a refusal to provide explanations.
If a citizen refuses to sign the notification, an act of refusal is drawn up (again, with at least two witnesses).
The act of refusal to sign any document (including notice) is drawn up in approximately the same way
The next step should be to check the violations committed, which can be documented in an act or service. As a rule, this is done by the immediate supervisor.
The final step in confirming a violation should be an order to apply disciplinary sanctions to the employee. To fire a person, you need to have at least 2 such documents. And know: the employee must be familiar with the order within five calendar days(including weekends).

The final document confirming a disciplinary sanction is an order; the offender must be familiar with it

What both parties should pay attention to: the employer can issue a disciplinary reprimand, 1-2 reprimands and dismiss a person “under the article” (including under the fifth paragraph of Article No. 81) even when the negligent employee submitted a letter of resignation on his own desire. The legislation is based in this option on the fact that the relationship between the parties terminates only after fourteen days from the date of filing the application. And violations committed during this period are classified as standard and can be used for dismissal under the “article”.

Paperwork and calculations are carried out in a standard manner, in accordance with the requirements of the Labor Code.

One-time serious violation - paragraph No. 6 of Article No. 81

Absenteeism, alcohol in the workplace, disclosure of trade secrets - these and some other reasons give the employer the right to dismiss a person within one month as soon as the fact of at least one violation has been certified.

Let's understand the terms that labor law uses in the application of Article No. 81, paragraph 6, subparagraphs a - e:

Absenteeism is absence from work without a valid reason for more than four hours. In this case, the employer has the right to dismiss the employee “under the article” on the same day. The fact is recorded in the standard way: an act or report indicating that the employee was absent - an explanatory note from the violator - if an explanation is refused - an act recording that the person refused to give an explanation for his action - an order to terminate the contract. The day of dismissal will be considered the last working day. But in this option, the organization has a period of 1 month from the date of absenteeism to make a decision on terminating the contract or continuing cooperation. Of course, in this case the person receives his salary, his days are counted due vacation, other compensation (bonuses, etc.).
Consumption of alcohol in the workplace (or simply on the territory of the enterprise), this may also include drugs and other psychotropic substances (subparagraph “b”). In this option, the algorithm for recording a violation will be as follows: if possible, a medical examination is carried out (it should be noted that other evidence can be accepted, for example, video recording) - an act confirming that the employee was drunk at work - an explanatory note from the violator - an act is drawn up and endorsed about the fact - an order to terminate the relationship.
Disclosure of official, commercial or other secrets protected by law, including personal data of another employee (subparagraph “c” of the sixth paragraph of Article No. 81). But dismissal will be recognized as legal only when the contract contains a clause on the confidentiality of official data.
Theft of someone else's property, including colleagues or visitors (subparagraph “d”). Here it is necessary to take into account that dismissal due to theft or embezzlement is recognized as legal only when a court decision comes into force or the body authorized to deal with cases of administrative offenses issues a corresponding resolution. Therefore, for example, having in hand an act of private security that recorded the fact of theft, it will not be possible to justify the legitimacy of the decision to dismiss the employee who committed misconduct, since this service does not have the right to apply administrative penalties.
The last subparagraph of this group is violation of labor safety standards, which may entail severe consequences both for the organization and for the lives of colleagues. Such offenses are recorded by a special commission on occupational safety, which should function in every enterprise employing 10 or more people.

Dismissal “under article” is a difficult psychological stage for both sides of the conflict

Video: dismissal due to “articles”, what needs to be taken into account

How to challenge dismissal: deadline, where to apply, documents

Let's start with the timing, since this is one of the most important points when challenging the termination of an employment contract. Usually, when fired, a person is under enormous emotional pressure, especially if the termination of the contract took place illegally, under pressure. But it’s better to prepare a complaint with a cool head; the less emotion there is in it, the better.

You need to know that a dismissed person is given only one calendar month to apply for the restoration of his labor rights. Extension of the statute of limitations is allowed only in special cases, for example, when a person was ill or caring for a seriously ill relative (documentary evidence is required).

To the question: where to go when an organization terminates a contract without legal grounds, the answer is simple - there are 3 authorities for filing an application:

Labor inspection is a simple but always effective way:
- One of the advantages here is that a minimum package of documents is required along with the complaint;
- Application processing usually takes 15 days;
- but serious cases and large compensations are usually not considered here.
The district court is the most effective way to resolve a labor dispute:
- demands for compensation usually receive a positive response;
- no duty;
- if the court's decision is positive, the plaintiff has the right to recover compensation for expenses incurred;
- but there are 2 disadvantages here - this process is quite lengthy and the need for a complete evidence base.
The prosecutor's office (not particularly effective, since the authority, as a rule, is overloaded with cases of other types and does not work well on the issue).

Please note that if a court has been chosen to file a complaint, the claim must be filed strictly at the location of the employer, and specifically to the district court; justices of the peace do not deal with labor disputes.

Most often in labor disputes the court sides with the plaintiff, but this requires at least a minimum set of evidence confirming the fact of the violation. As evidence of his innocence, a dismissed employee can use any documents related to work, pay slips that were received upon dismissal, present witnesses, etc.

Know: if the certificates were not issued with a work book and calculation, this is not a violation of the Labor Code of the Russian Federation, but only if the person did not write an application for issuance and did not demand them. In this case, the issue is resolved simply: you need to formalize it in a simple writing a request for the issuance of certain documents and send it to the employer (in person or by mail). The company is obliged to issue the certificates specified in the paper within three working days.

As a result, if an employee decides to go to the district court, he needs to collect as much as possible full package documents, the more complete the set is, the greater the chances of proving your case. Therefore, it is recommended to prepare:

a copy of the order to terminate the employment contract;
a copy of the employment agreement;
orders and additional agreements about part-time work while working at the enterprise (if any);
notice of dismissal (if available, for example, staff reduction, liquidation);
one, or preferably several certificates-calculations that confirm the amount of income (note-calculation, 2-NDFL, certificate of the amount of earnings for 2 calendar years preceding dismissal in form 182n);
a document confirming the payment of insurance premiums (SZV-experience, extract);
a copy of the work book;
characteristics from the previous place of work;
certificate of marital status and the number of dependents.

You can provide other information that would confirm that the employer acted illegally in dismissing you.

Based on the stated claims, a person can ask the court to raise specific questions at the hearing:

making adjustments to the date and (or) article of the basis for termination of employment obligations;
reinstatement at work;
payment of compensation for forced absence;
compensation for moral damage (at this point it is recommended to especially carefully collect all evidence).

It is not at all necessary to know by heart all 12 articles of the Code, which provide for dismissal at the initiative of the employer. You just need to know the main points of labor legislation and places where you can get detailed information on a specific issue in a timely manner.

The employment contract can be terminated by any of the parties at their personal request. At the same time, it is necessary to take into account some details and legal requirements.

The manager may terminate the relationship if:

the citizen does not fit the declared position;
low level of completed tasks by the employee;
the subordinate's health has deteriorated and he is no longer able to perform;
the employee periodically violates the internal work regime;
absence from work for unexcused reasons;
criminal violations.

The company is being liquidated.

The dismissal of an employee can also occur due to the company. This circumstance is based on the norms of the eighty-second article of the Labor Code of the Russian Federation. This circumstance applies to structural changes, the company is eventually destroyed.

The staff is being reduced.

When the number or staff is reduced (Article 81 of the Labor Code of the Russian Federation), the staff schedule undergoes changes, and the number of vacancies, accordingly, decreases. The process is accompanied by a change approved by the order.

Change of founder.

Produced reorganization, which is associated with the replacement of the founder. The legislation applies here (Part 1, Article 81 of the Labor Code of the Russian Federation) and applies to the following persons:

heads of organizations;
branch managers;
vacancy for chief accountant.

In other circumstances, valid Article 75 of the Labor Code of the Russian Federation.

If the new founder considers it necessary, then previously working citizens will retain their jobs at the newly started enterprise.

The employee does not perform job duties.

This disciplinary sanction is subject to regulation by paragraph 5 of part 1 of Article 81. Of course, before a strict measure there must be the same action with the application of punishment, but in a more loyal form(reprimand or letter of complaint).

This measure is regulated Article 192 and applies in the following cases:

the employee does not want to perform his job duties;
there are several absences available;
going to work drunk.

One-time offense.

An employer has the right to dismiss a subordinate in the following cases:

an employee drank alcohol at work;
came to work drunk;
committed petty theft;
revealed state secrets;
was at work under the influence of prohibited substances.

In this case, acts of violations must be drawn up. Without accompanying documents and confirmation, dismissal will be impossible.

Immoral act.

This applies exclusively to teachers and educators working with individuals. The case must be heard within one month. It will be necessary to prove in court that the violation falls into the category of immoral acts.

The manager committed a violation or made an unreasonable decision.

A manager may be held accountable if the result of violations is the following:

in case of injury;
after causing material or moral damage;
other.

The founder must file a claim with the court within a month.

Is it necessary to inform the employee in advance, and in what cases?

Notify the employee in advance dismissal is necessary in the following cases:

Liquidation of the enterprise.

If the company closes its operations, then it is necessary to notify the employee a couple of months in advance in the usual case, and in case of seasonal work - a week in advance. If an urgent agreement was drawn up, then within three days.

The employee failed the test. In this case, the employee must be notified three days in advance.
The staff is being reduced. A couple of months' notice is required.
The contract has expired. Management is required to notify the employee three days in advance.

No notification required, If:

The employee did not pass the certification.
The employee violated his job duties.
The employee presented false documents.
An immoral act has been committed.
The conflict of interest that has arisen has not been resolved.

Procedure

Article 84 of the Labor Code of the Russian Federation streamlines the procedure for terminating an employment contract. The employment contract ends by issuing an order by the employer. The order must be provided to the employee so that he can sign the document.

You can familiarize yourself with the dismissal order form.

If the employee requests, he must be given a certified copy of this order. If the employee does not want to sign the document, then this must be noted on the order.

Further, on the day of termination of the employment agreement, the employee receives his salary, and he must also be paid all the accruals due to him. If an employee did not perform job duties on the day of dismissal, then all payments to him will be made no later than the next day.

If disputes arise about the amount of payments, the manager is obliged to pay the undisputed amount within a certain period of time.

If the employee does not have the opportunity to personally receive it, then he is sent a notification about the need to come for it.

From this moment on, the employer is not responsible for the delay in issuing the document.

Termination of relations with a foreign employee

To terminate an employment contract With foreign employee , the employer must:

Complete the order and provide it to the employee for review.
Issue all accruals to the employee.
Make an entry in the work book and give it to the employee on the day of dismissal.
Notify the FMS that the contract with this person has been terminated.

If a foreigner patent expired, then you can’t fire him right away. It is necessary to relieve the employee from performing job responsibilities for one month.

If a new document is not ready within one month, the employer has the right to dismiss such an employee. In this case, it is necessary to indicate the reason for dismissal - circumstances beyond the control of the parties.

According to the law, the manager must fire a foreign citizen within a month from the moment the patent expires. If the manager does not have time to do this, he will face a fine.

The employer also faces a fine if he fires a foreigner backdating. This is allowed to be done only by decision of the court.

According to the law, foreign employees can be dismissed for the same reasons as other citizens, or under conditions appropriate to this category of citizens.

What an employer needs to know when dismissing an employee, a lawyer will tell us in a video clip: