Dismissal is a routine job for an experienced HR manager. Some employees leave at will, others - at the “request” of the employer. In any case, for each reason there is its own procedure. Strict compliance with it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other, at protecting organizations from unfounded claims of former employees. Let's look at how to fire an employee in compliance with all necessary formalities.

Dismissal options

Labor legislation provides 3 options for dismissal:

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

The employee’s own desire is the most common basis for terminating a relationship with the employer:

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

As a rule, there are no difficulties with registering dismissal at the initiative of an employee. The exception is issues related to mandatory “working out”. The standard is 2 weeks, which the employee continues to work from the moment the application is submitted.

Certain categories of personnel have the right to a reduced period of notice of dismissal. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not manage to pay the resigning employee in time and issue him a work book.

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

When it comes to dismissing an employee unilaterally by the organization, the employer’s “freedom” is clearly limited: desire alone is not enough for this. There is a list of reasons for which you can fire an employee, and special order recording violations for each of them. There are no documented misconduct by the employee - there is no reason for dismissal.

"Compromise" termination option labor relations is an agreement of the parties. In this case, the employer and employee amicably agree to part ways under certain conditions. Most often it looks like this: the organization is interested in dismissing an employee without the risk that he will change his mind and withdraw the application “on his own.” The employee “bargains” to receive monetary compensation for his care.

Dismissal at the request of an employee

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

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

It does not matter what contract was concluded when entering the job - fixed-term or indefinite. In any case, the employee’s desire is decisive, and the employer has no legal grounds to interfere with him.

The application is written addressed to the manager with the wording: “I ask you to dismiss me at your own request, “XX” month in words XXXX year,” the current date and signature.

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

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another duty station/abroad;
• violation of laws, conditions employment contract on the part of the employer.

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

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

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

From the employer's perspective, the procedure for voluntary dismissal looks like this:

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

Whatever the reason for leaving, the personnel documents will indicate the same reason under which article to dismiss the employee - Art. 77 Labor Code of the Russian Federation. On the day of dismissal, the employee reads the order and receives a work book. Until this moment, a person can change his mind and withdraw the application if a replacement has not yet been invited to take his place, which “cannot be turned back.”

Dismissal by agreement

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

1. If the initiative comes from the employee, he submits a letter of resignation to the manager.
2. If an employer “asks” an employee to leave the company, he sends him a written offer.
3. The parties discuss the terms of termination of the employment contract.
4. The organization and the dismissed person sign a bilateral agreement.
5. The HR department issues an order and fills out a work book. The basis for dismissal is clause 1 of Article 77 of the Labor Code of the Russian Federation.

Agreement – best option for both parties in terms of opportunities and compliance with legal rights. The employer can, by agreement with the employee, dismiss him on any day, even if he is on vacation or sick. A quitter cannot “change his mind” and cancel a signed document unilaterally. The employee is also not offended - during the negotiation process, he has the right to protect his material interests and demand compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer purely economic reasons– the need to reduce the number of employees or completely close the organization. In the second case, all personnel are expended; in the first case, the units and positions being reduced are expended, with the exception of those categories of employees who cannot be laid off by law.

If it is necessary to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee is not suitable for the position held or that he has committed misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work drunk, systematic violations with disciplinary punishment.

To avoid infringement of the rights of personnel, legislators have done everything to ensure that a person cannot be fired without good reason. It is quite difficult to “prosecute” an employee towards whom his superiors have a personal enmity, although abuse on the part of employers cannot be completely ruled out.

Reduction of staff and liquidation of the company

Reduction has a clearly regulated process for dismissing part of the staff:

1. The decision on reduction made at the enterprise is fixed by order. For the personnel service, this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and changes in the staffing table.
2. 2 months before the date of layoff, all employees subject to it are notified in writing under signature.
3. The employer is obliged to offer the employee another position if such a possibility exists. A transfer is issued for people who agree to the proposed vacancies. The rest are preparing to retire.
4. The notified employee has the right to leave early without waiting for the layoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go freely. Compensation for the remaining days before layoff early dismissal does not deprive the employee.
5. 2 months before the layoff, management must notify trade union body, if there is one. In case of mass layoffs of workers - 3 months in advance, and also submit lists to the employment service.
6. A dismissal order (form T-8) is prepared for each employee with reference to the basis document. The order is sent to the person being dismissed for signature.
7. An entry is made in the work book indicating the reason for dismissal - clause 2, part 1 of Art. 81 TK.
8. Full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of average salary.

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

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

When one of several equivalent positions is eliminated, the choice of workers who will leave and who will remain falls on the employer. However, even here the authorities are deprived of complete freedom. All other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important,” the legislation gives some of them a priority right to keep their jobs. This:

• persons with 2 or more dependents;
• the only breadwinners in the family;
• received injury or occupational disease from this employer;
• disabled participants in combat operations;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. You cannot fire an employee if he is on sick leave or on vacation. To lay off temporarily disabled people and vacationers, you will have to wait until they return to work.

All these exceptions do not apply if the organization is completely liquidated. The liquidation procedure is practically no different from layoffs, except for one thing: all personnel of the organization are deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers, etc.) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it is completely ceasing its activities.

Dismissal of labor discipline violators and unfit workers

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

• absenteeism;
• presence at work in a state of intoxication (alcohol, drugs), confirmed by a medical examination;
• disclosure of information protected by law (state, commercial secret), proven in court;
• theft, embezzlement, material damage to the employer or a third party, recognized by the court;
• violations of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teaching staff;
• presentation of false documents when applying for a position.

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

1. Detection of violations.
2. Recording an offense (drawing up an act, protocol, examination, conducting medical examination etc.).
3. Obtaining an explanation from the offending employee in writing.
4. Consideration of the circumstances of the case.
5. Drawing up a dismissal order in the T-8 form, with references to supporting documents (acts, reports, explanatory notes, court decisions etc.).
6. Bringing the order to the employee for signature.
7. Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to fire an employee for absenteeism: if a person is absent from work for the entire day or 4 hours in a row, it is necessary to document this fact and prove that the employee was not there without a good reason.

Until an explanation is received from the “truant”, the “presumption of innocence” applies. The employee could be on leave, vacation, on sick leave, be summoned to court, get into an accident on the way to work, etc.

If the employee has not received any clear explanations or supporting documents (certificate of incapacity for work, subpoena, traffic police report, etc.), the offense is regarded as a gross violation labor discipline and is qualified under Art. 81 Labor Code of the Russian Federation, part 1, clause 6, subparagraph “a”. This basis will be recorded in the dismissal order and in work book.

List of documents confirming the legality of such dismissal:

1. Report of absence from work.
2. Explanatory note from the employee or an act of refusal to provide explanations.
3. Order of disciplinary action/dismissal.

If the employer violates this procedure, even if he has good grounds for dismissing the truant, the “offended” employee has every chance to be reinstated through the court.

It is also possible to fire a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming “chronic” indiscipline may collectively serve as grounds for severing employment relations.

Another “touchy” question for employers is how to properly fire an employee who, in the opinion of management, is not suitable for the position held. There is no other option other than arranging a certification for an incompetent employee. It is necessary to issue an order, create a certification commission and evaluate a person’s professional suitability based on clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can formalize your dismissal with the wording “due to inadequacy for the position held.” The period within which the employment contract must be terminated is no later than two months after certification.

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

08.05.2014 78907

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

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

Making a decision

The decision to dismiss arises in the head of the manager at first unconsciously, implicitly and matures for some time. As a rule, from the moment the thought arises that an individual employee has no place in the company or department, until the announcement to him decision taken months pass. Often managers delay dismissal because they are not ready to say it out loud. The most common reasons for such delay can be identified.

• “If I admit the need for dismissal, I actually admit that I made a mistake when I conducted the interview, I didn’t see it, I didn’t recognize it, I taught the wrong thing, I didn’t pay enough attention.”
• “I feel sorry for dismissing him; he has a difficult financial situation.”
• “It’s so frustrating to report this. I hope the situation will resolve itself."
• “Staffing problem! I’ll fire this one, but where is the guarantee that the next one will be better? Who will work?

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

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

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

1. The employee takes a lot of time, energy, money, and his performance does not improve. He does not (does not want to, cannot) fulfill the tasks assigned to him.
2. The employee shows disrespect for you and the team (customers, if the position involves communicating with clients).
3. Personally, you are uncomfortable working with this person, he is unpleasant to you.
4. The employee is disloyal to the company and does not share its values ​​and principles.
5. The employee is conflict-prone and regularly creates difficult situations.

If the answers are ambiguous, then give the person another chance. Give him the opportunity to improve within a certain time frame. If you agreed with 4 statements, decide to break up right now and set a date for the final conversation.

Informing an employee about dismissal

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

The dismissal procedure should be an additional reason for feedback and be carried out according to the “plus-minus-plus” formula. Start the conversation by listing the employee’s positive qualities, based on which you once hired him. Then explain why you are unhappy and what caused the dismissal. Finishing the conversation, once again highlight a few advantages that, in your opinion, are his strengths and will be useful to him new job. Any person has the right to understand why they want to break up with him.

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

Legal registration of dismissal

It is important to fire an employee legally and without consequences. The Labor Code offers us several options; let’s look at the most common ones.

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

You can go the other way, namely, change the employee’s working conditions: transfer his clients and part of his powers to another employee, do not increase wages, and deprive him of bonuses. In this case, everything depends on the personality of the leader and his moral principles.

But these methods have their drawbacks - they incite war and affect relationships within the team as a whole. Angry, the fired employee may contact tax office, to court, to your competitors or to all at the same time, turning your existence into a nightmare.

Another way to break up - termination of a trade agreement by agreement of the parties(clause 1, part 1, article 77 of the Labor Code of the Russian Federation). This method is convenient to use when both parties are determined to sever the employment relationship. In this case, the date of dismissal is chosen taking into account their mutual interests, for example, when a replacement for the employee is selected or when he finds a new job. If it is legally correct to formalize the termination of an employment contract by agreement of the parties, then it is necessary to conclude a termination agreement, which must stipulate the date and conditions of termination. IN real life the parties agree on the terms of departure orally, and when the agreed date arrives, the employee writes a letter of resignation, and the entry in the work book is made on the basis of paragraph 3 of Article 77 of the Labor Code, that is, “at his own request.”

Opportunity dismissal due to failure to complete the probationary period must be provided in advance. The probationary period usually lasts up to three months, and during this period the employment contract can be terminated at any time. Please note that the probationary clause must be included in the employment contract and, preferably, in the order and application for employment. Otherwise, the employee is considered hired without a probationary period, and he cannot be fired on the basis of failure to pass the test. If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test. In this case, it is advisable to confirm the reasons with written evidence.

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

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

If an employee is systematically late, then he can be dismiss due to non-compliance with labor discipline(Clause 5 of Article 81 of the Labor Code of the Russian Federation). The most important thing in this case is the clause of the employment contract, which clearly states the start and end times of the working day. In addition, the time sheet must record the time of arrival at work. If an employee’s tardiness is chronic, it is necessary to draw up a report of tardiness, and then require a written explanation from the employee on the basis of Article 193 of the Labor Code of the Russian Federation. If the employee does not want to write an explanatory note, he should draw up a statement of refusal and get the signatures of three other employees on it. If there are three written comments, you can issue a reprimand, after which you can safely dismiss such an employee. I would like to emphasize that if you want to fire an employee under an article, it is important to carefully prepare written documents (memos, comments, orders) so that in case of a legal dispute you have strong evidence.

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

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

Are you being forced to resign “of your own free will”, threatening to fire you “under the article”? Today we will talk about the myths that employers scare us with, wanting to get rid of an unwanted employee without any problems.

But first, let's agree on concepts. Of course, legally there is no such term as “dismissal under article”. The fact is that any legally formalized separation of an employee and an employer occurs under one or another article of the Labor Code (here we will limit ourselves to the standard labor relations described by the Labor Code and will not consider other contractual relations). Typically, dismissal “under article” means dismissal under a “bad” article of the Labor Code of the Russian Federation, which in one way or another negatively affects the employee’s reputation in the labor market. It is these “bad” articles (or rather, points) that we will analyze today. So, Article 81 of the Labor Code clearly defines the reasons why an employer can dismiss an employee. So, for example, paragraph 4 of this article states that the director, his deputies and the chief accountant can be fired when the owner of the organization changes. But in this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article. When an organization is liquidated, everyone is subject to dismissal, including pregnant women and young mothers. Reducing the number or staff is a separate issue. Read more about this in the article “Reduction at your own request.” But today we will talk in more detail about what articles employers most often “scare” employees with, forcing them to write “of their own free will.”

Myth No. 1. We will fire you for inadequacy of the position.

Base: Clause 3 art. 81 of the Labor Code “Inconsistency of an employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.” How it should happen: It's not that easy to do. An certification commission must be created, which usually includes the deputy director of the organization, a representative of the human resources department and the immediate supervisor of the subject. A special order is issued to conduct the certification commission. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible to complete, for example, in terms of deadlines, you can write a complaint to the labor inspectorate and challenge the results of the certification in court. A final report is drawn up on the results of the certification. But even after certification, dismissing an employee is not so easy. Dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. This can be either a vacant position or work corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. And so, if an employee refuses in writing all the offers made to him, then the employer can fire him.

Myth No. 2. Failure to fulfill job duties

Base: Clause 5 Art. 81 of the Labor Code of the Russian Federation “Repeated failure by an employee to comply without good reasons work responsibilities, if he has disciplinary action». How it should happen: Failure by an employee to comply must be repeated And without good reason. Moreover, the employee must already have been subject to disciplinary action. According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

1. comments;
2. reprimand;
3. dismissal for appropriate reasons.

However, the penalty must correspond to the gravity of the offense. It is impossible to impose a disciplinary sanction in the form of dismissal on an employee for a minor offense. Before applying a disciplinary sanction, according to Article 193 of the Labor Code of the Russian Federation, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, a corresponding act is drawn up. Disciplinary sanctions are applied no later than one month from the date of discovery of the misconduct, not counting the time:

• employee illness,
• his stay on vacation, as well as
• the time required to take into account the opinions of the representative body of employees.

Thus, a disciplinary sanction can be imposed within a month after the discovery of the misconduct. A disciplinary sanction is formalized by an order (instruction). The employee must be familiarized with it 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. A disciplinary sanction can be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes. So, in order to dismiss an employee on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation, failure to fulfill labor duties must be:

• repeated;
• without good reason.

If there are valid reasons, the employee must put them in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Myth No. 3. Dismissal for being late or absenteeism

Base: Clause 6 Art. 81 of the Labor Code of the Russian Federation “Single gross violation of labor duties by an employee” How it should happen: Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration. The most important valid reason is sick leave. If after returning to work you do not provide sick leave, then the employer may give you absenteeism. If you had other extenuating circumstances, they must be stated in writing. Management decides how valid your reasons are. Let's say you had a fight with your spouse and therefore did not go to work - this cannot be a valid reason. If your neighbors flooded you, this is a more “respectful” option. If your point of view differs from the opinion of the manager, his decision can be challenged in the labor inspectorate and in court. To do this, you will need to provide documentary evidence of the “validity” of the reasons for your absence from work. If you need to be absent from work, write a statement in two copies, on which your management puts its “I do not object” resolution, date and signature. The first copy is with the authorities, the second - keep it with you. But with delays everything is different. “A one-time gross violation also includes absence from work without a valid reason.” more than four hours straight during the working day (shift).” That is, if you are an hour late for work, you cannot be fired on this point. However, for repeated lateness, a disciplinary sanction can be imposed, and subsequently dismissed under clause 5 of Art. 81, as for repeated failure by an employee to fulfill his work duties without good reason.

Myth No. 4. Theft and embezzlement

Base: pp. G p. 6 art. 81 of the Labor Code of the Russian Federation “Committing theft (including small) of someone else’s property, embezzlement, intentional destruction or damage at the place of work, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses.” How it should happen: It is already clear from the text of the law that in order to dismiss an employee on this basis, a court decision or a resolution of an authorized official is necessary. That is, an investigation must be carried out. However, in practice, an employee may be asked to leave quietly “of his own free will” so as not to make a fuss, which in various circumstances can affect both the reputation of the employee himself (even if he is not guilty of anything) and the reputation of the organization itself. And here the choice is up to the employee.

Myth No. 5. Loss of trust

Base: Clause 7 art. 81 of the Labor Code of the Russian Federation “Committing guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer.” How it should happen: Loss of trust cannot just happen. Reasons are needed for this. Documented. To dismiss under this point, proven and documented guilty actions of the employee are required. Please note: guilty actions leading to loss of confidence can be committed by an employee outside the workplace or not in connection with the performance of work duties. However, reference to actions of this kind is allowed no later than one year from the date of discovery of the misconduct by the employer. And this applies only to financially responsible persons who directly service monetary or commodity values.

Other reasons for dismissal:

1. The appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility, where, on behalf of the employer, the employee must perform labor function) in a state of alcohol, narcotic or other toxic intoxication (clause B, clause 6 of article 81 of the Labor Code of the Russian Federation).
2. Submission of false documents by the employee to the employer when concluding an employment contract (Clause 11, Article 81 of the Labor Code of the Russian Federation);
3. Disclosure of secrets protected by law (state, commercial, official and other) that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee (clause B, clause 6, article 81 of the Labor Code of the Russian Federation).
4. Violation of labor safety requirements by an employee established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph D, paragraph 6 of Art. 81 Labor Code of the Russian Federation).
5. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation).
6. Making an unjustified decision by the head of an 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 (clause 9 of Article 81 of the Labor Code of the Russian Federation).
7. A one-time gross violation by the head of an organization (branch, representative office) or his deputies of their labor duties (clause 10 of Article 81 of the Labor Code of the Russian Federation).

The Labor Code also provides that termination of an employment contract at the initiative of the employer may occur in other cases provided for in the employment contract with the head of the organization and members of the collegial executive body organizations. Therefore, carefully study the employment contract before signing.

1. If you find yourself in disgrace, document your every step and decision.
2. Do not be subject to disciplinary action. One lateness is an accident, two latenesses are a system.
3. Absenteeism without good reason is grounds for dismissal.
4. Read the employment contract.
5. Study job descriptions.
6. Stand up for your rights.

Where to complain and where to defend your rights

If an employer violates the rights of an employee, you need to contact the labor inspectorate. She will conduct an inspection of the enterprise and issue a decision to eliminate deficiencies, if any are identified. A fine may also be imposed on the organization. The complaint must be written to the territorial body of Rostrud, the address of which can be found on the official website of Rostrud. But the labor inspectorate cannot force the employer, say, to pay the employee everything that is due by law. Therefore, you still need to go to court. According to Article 392 of the Labor Code of the Russian Federation, an employee has the right to go to court to resolve a dispute about dismissal - within one month from the date of delivery of a copy of the dismissal order or from the date of issue of the work book. When filing a claim in court labor dispute employees are exempt from paying duties and court costs (Article 393 of the Labor Code of the Russian Federation). The statement of claim must indicate not only the demands for reinstatement at work, but also the collection of money for forced absence. Also, according to Article 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal grounds or in violation of the established procedure for dismissal or illegal transfer to another job, the court may, at the request of the employee, make a decision on recovery in favor of the employee monetary compensation moral harm caused to him by these actions. The amount of this compensation is determined by the court. Thus, even if you were fired and you consider your dismissal illegal, do not be afraid to go to court. Judicial practice shows that the court decision is most often on the side of the employee.

When dismissing an employee, the manager cannot be sure that the story is over - a person fired under the article can go to court or simply cause damage to the company by leaking the customer base or valuable information. How to soften the procedure for dismissing employees.

Dismissal at the initiative of management always results in stress, wounded pride and painful experiences for the employee. It would seem that the director, having gotten rid of an employee who for some reason did not come to the court, should breathe a sigh of relief.

In fact, as usual, the coin has two sides - offended and irritated former employee can cause significant damage to the organization. Possible troubles are varied - from unpleasant stories about the true face of the leader in particular and the organization in general in business circles to tedious proceedings in court. An offended employee can take revenge on the company by leaking the customer base to competitors or by reporting valuable and secret information to the tax authorities.

But that's not all. If the dismissal was carried out rudely, the rest of the staff will be shocked, and many will begin to seriously think about their own prospects in the company and, perhaps, will look for a safer place to work. Employee loyalty and a healthy atmosphere in the team are an important component of the company’s success.

The above is enough to make it obvious that when dismissing employees, you need to try to make this unpleasant process as non-traumatic as possible for all parties. Let's try to understand how we can make the dismissal process as painless as possible and not turn fired employees into enemies. You can part with employees using several dismissal mechanisms. We will look at the most common ones.

At your own request

The method is the simplest and most beneficial for the parties. Do not show excessive cruelty, and invite the unwanted employee to write a statement “on his own” (clause 3 of Article 77 of the Labor Code). Talk to the employee kindly and explain to him that it is better for you to leave, since he has no prospects in your company, and his usefulness to the common cause is minimal. If you manage to understand each other, write good recommendations to the person resigning. If possible, give him a consolation bonus for striving for peace.

In this case, a kind attitude towards the employee is very important; there is no need to provoke conflicts in order to avoid many unpleasant moments. If you have already decided that this person will not work in your company, there is no point in angering him and making an enemy (see “”).

The situation becomes more complicated if the employee flatly refuses to resign of his own free will. Do not give up trying to convince him of the inappropriateness of further cooperation, but do it very tactfully and without using prohibited techniques. Do not even think about insulting your subordinate or entering into open confrontation with him. Keep in mind that other employees are monitoring the situation and projecting it onto themselves. If you overdo it, you can provoke a revolutionary situation in the team.

Be patient and collect incriminating evidence against your subordinate: customer complaints, employee reports, violations of labor discipline, miscalculations in work... Make comments in writing, issue orders for reprimands, call the offender to the carpet on every occasion. When you have enough trump cards in your hands, you will be able to substantively explain that with such a dossier a stubborn person will not find good job. With this systematic approach he must surrender.

Create intolerable conditions for the employee - transfer most of his powers to another employee, do not increase his salary, deprive him of bonuses. We are not at all sure that all these Jesuitical techniques will lead to the desired outcome - an obstinate person can take countermeasures by complaining to the tax office, the court and a superior. Then your situation can become extremely uncomfortable.

Based on the certification results

Almost always, employees are fired due to their professional inadequacy for their position. The difficulty of such dismissal lies in the need for certification, which can only be carried out in organizations where special Regulations have been developed. All employees must be familiar with the text of this document against signature.

There are no instructions in the Labor Code on how certification should take place and how its results should be summed up. The Certification Regulations, approved back in 1973, have still not lost force. According to this document, the manager has the right to approve the certification schedule at the enterprise or issue an order to conduct certification. Employees must sign that they are familiar with this order.

Qualification assessment is carried out by a special commission consisting of sufficiently qualified specialists who can authoritatively assess the level of those being certified. The results are issued in the form of an order. If an employee does not pass the certification, he should be given a chance to pass it again to avoid disputes in the future. After the second failure, offer him a less prestigious job in your company. Find a position that the employee will definitely not agree to. Make the refusal in writing and you can prepare a dismissal order.

Although a dismissal order alone may not be enough in this case. If before the certification the employee performed his duties well and did not have any penalties, he can challenge the dismissal in court. The court almost always takes the plaintiff's side. When arranging a certification specifically to get rid of a specific person, follow the formalities. The disadvantage of this method of dismissal is the high cost and complexity of organizing this event.

For systematic violation of labor discipline

The employment contract always clearly states the start and end times of the working day, and any violation of the terms of the contract leads to penalties. Be sure to note all lateness on the timesheet (see “”), early departures from work, long lunch breaks, etc.

If violations have become systematic, create a commission and write an act. Request a written explanation from the employee. In case of refusal, draw up a report signed by members of a commission consisting of three disinterested witnesses, the immediate supervisor and a representative of the personnel department. If you make written comments every time you are late for work or a similar violation, in court you will have evidence that can convince the judge that your dismissal was fair.

For a one-time violation

The Labor Code interprets the following actions as a gross violation of discipline:

• showing up at work under the influence of alcohol or drugs;
• absence from work for a significant part of the working time without warning;
• disclosure of trade secrets;
• violation of safety regulations, which can cause serious consequences;
• destruction, theft or embezzlement of property.

Absenteeism for more than four hours and appearing drunk are the most common reasons for dismissal. Before you begin the dismissal procedure, make sure that the employment contract contains a clause on the location of the workplace, and job description signed by the employee.

To prove the fact of appearing at work while intoxicated, a medical examination and written testimony of witnesses is required. You must reprimand the offender and record it in your personal file. Only after collection necessary documents you can hope that the drunkard will be fired, and the decision cannot be challenged in court.

If absenteeism occurs, that is, absence from work for 4 hours without warning, the employee can be fired even if the offense is a one-time offense. The reason for absenteeism can be considered valid if there is a fire or accident, a close relative suddenly falls ill, etc. An employee can be fired for absenteeism within one month from the date of the incident.

Peaceful dismissal

Of course, you can show integrity and fire an unwanted employee under the article, but think about the consequences of this action. You risk becoming involved in numerous legal proceedings with an uncertain ending.

If the court finds your actions unlawful, you will pay compensation for forced absence and will have to take back the dismissed employee. It seems to us that it is better to try to find peaceful ways to resolve the conflict (see “”). Invite the employee to write a statement of his own free will, explaining that you have enough information that can be used when leaving.

The employee loses nothing as a result of a lawsuit, but you will incur costs in attorneys' fees and attorneys' fees even if you ultimately win the case. Offer the employee severance pay and go your separate ways - it will be better for everyone.

To terminate an employment relationship, serious grounds are needed. Illegal dismissal of an employee threatens the employer with administrative sanctions.

Dear readers! The article talks about standard methods solutions to legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

The parties can terminate the contract only upon expiration of the agreement or on grounds provided by law. Is it possible to fire an employee against his wishes in 2019 without breaking the law?

Basics

According to labor standards, employees are provided with a considerable number of different benefits and guarantees. In matters of dismissal, employees have much more rights than employers.

A fixed-term contract is characterized by determining the exact period of validity of the contract. That is, the parties set a date for the completion of the employment relationship in advance.

But there is one caveat. Three days before the end deadline one of the parties must notify of its desire to terminate the employment relationship.

If no such notification was received, fixed-term contract turns into an unlimited term and can only be terminated on a general basis.

When an employee is fired due to wrongdoing, you should first request a written explanation of the event.

The general dismissal procedure looks like this:

1. Carrying out certification and establishing non-compliance with the position.
2. Offering an employee a different position (all suitable vacancies) by notification against signature. If there are no vacancies. This needs to be confirmed.
3. Obtaining consent or written refusal for translation.
4. In case of refusal - preparation.
5. Registration of contract termination, calculation and issuance of documents.

Deadline for the employer to make a decision based on the results of certification by the current labor code not installed.

But in accordance with previously existing standards that do not contradict, the employer is obliged to make a decision on the transfer within two months from the date of certification. If there is no vacant position, you can terminate the contract on the same day.

Important! Pregnant women, women with children under 3 years of age, single mothers with children under 14 years of age, and employees who have worked for less than a year cannot be dismissed due to inadequacy of the position.

They also do not conduct certification for workers without special education, unless it is required to perform their duties.

For violation of discipline

An employee can be dismissed for a single gross violation of labor duties. These include:

• absenteeism – absence from work for more than 4 hours without a valid reason. In this case, the employer must independently establish the validity of the reason after receiving a written explanation from the employee;
• failure to comply with safety regulations that caused the accident;
• refusal of training or planned;
• failure to comply with management orders;
• the employee’s guilt in damaging company property;
• detection of shortages in entrusted property;
• disclosure of trade secrets.

If one of these violations is detected, dismissal is carried out in the following order:

1. An act of committing an offense is drawn up.
2. Evidence of violations is collected.
3. A written explanation from the employee is issued (within 2 days from the moment of the offense). Documentary evidence may be attached to the explanation.
4. If there is a confirmed basis and there are no valid reasons, a dismissal order is drawn up.
5. The dismissal is formalized with payment and issuance of documents.

Due to being in a state of intoxication

An employee may be fired for being intoxicated at work. But to do this, you will need to prove the fact of drunkenness and properly record it.

Witness testimony alone is not enough. The procedure for dismissal for drunkenness looks like this:

1. Conducting a medical examination in the presence of a representative of the employer with drawing up.
2. Drawing up a report on the employee’s presence at the workplace in working hours in a state of intoxication (alcohol, drugs, toxic).
3. Receiving an employee.
4. Drawing up a report on the incident to senior management (if any).
5. Drawing up an order for removal from a position.
6. Familiarization of the employee with the order.
7. Completing the calculation and making an entry in .
8. Issuance of due payments and documents.

Often, employees who are found drunk at work agree to resign at their own request.

This is due to the fact that the work book indicates the article under which the dismissal was formalized. If an employee has expressed a desire to resign on his own, this simplifies the procedure.

It is enough to receive a resignation letter from the employee at his own request. In this case, the parties can draw up an agreement to terminate the employment relationship and terminate it immediately.

Failure to comply with internal labor regulations

How to fire an employee without his consent according to the law? A report from your immediate superior about violation of labor regulations can become a compelling argument.

When an employee violates job responsibilities repeatedly and does not comply with internal labor regulations, he can be fired.

But this can only be done if there is a disciplinary sanction. However, at the time of dismissal, this penalty should not be withdrawn or repaid.

A disciplinary sanction is recognized as extinguished after a year, if there were no other penalties. The employer can withdraw the penalty at any time.

An additional reason for dismissal may be health status. But an official medical certificate will be required stating that the employee is unable to perform work duties due to poor health.

In this case, the employer must offer other available vacancies that are suitable for the employee with an established illness.

If a suitable position is not available or the employee refuses the offer, the contract is terminated.

Important! You cannot fire a person while he is on sick leave, regardless of his age. The only exception is the termination of activities by the employer.

In other cases, dismissal can be carried out only or by agreement of the parties.

Which is easier - LLC or individual entrepreneur?

It is much easier to fire an individual entrepreneur than an employee of an organization. This applies in particular to the dismissal procedure.

When concluding an employment contract with an employee, he has the right to stipulate the conditions of dismissal. So the individual entrepreneur is not obliged to pay severance pay if this is not specified in the contract.

In addition, an employment contract may provide for grounds for dismissal not specified in the Labor Code of the Russian Federation and establish a notice period for termination of the contract.

The dismissal procedure is formalized in accordance with the contents of the employment contract. Otherwise, an individual entrepreneur has the right to dismiss an employee on the same grounds as an LLC.