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

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

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

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

1. Dismissal due to unsatisfactory test result

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

Applications

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

controversial points

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

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

Established practice

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

Example 1

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

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

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

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

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

Applications

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

controversial points

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

Correct Application Algorithm

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

Established practice

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

Arbitrage practice

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

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

3. Reducing the number or staff of employees

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

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

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

Applications

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

controversial points

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

Correct Application Algorithm

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

Established practice

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

Arbitrage practice

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

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

4. Dismissal for non-compliance

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

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

Applications

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

controversial points

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

Correct Application Algorithm

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

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

Established practice

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

Arbitrage practice

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

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

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

5. Repeated dereliction of duty

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

Applications

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

controversial points

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

Correct Application Algorithm

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

Arbitrage practice

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33-35 of the Decree of the Plenum of the Armed Forces of the Russian Federation No. 2. Thus, the courts, considering disputes, must take into account that an employee’s failure to perform duties without good reason means failure to perform labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, rules of internal work schedule, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

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

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

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

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

Arbitrage practice

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

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

6. Absenteeism and other guilty one-time actions of the employee

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

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

Applications

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

controversial points

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

Correct Application Algorithm

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

Established practice

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

7. Termination of relations with the head

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

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

Applications

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

controversial points

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

Correct Application Algorithm

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

Arbitrage practice

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

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

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

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

Footnotes

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The dismissal procedure can occur for three reasons: the initiative of the administration or circumstances beyond the control of the parties to the contract. Labor legislation regulates each type of calculation from the place of employment. Compliance with the established rules is mandatory for both parties, otherwise disputes arise that require judicial review.

The question of how you can fire an employee without his will and comply with the law requires special consideration. In each such situation, there is a conflict of the parties, therefore, maximum literacy from a legal point of view is required.

Reasons for dismissal by order of management

Termination of labor relations at the will of the administration in the vast majority of cases is associated with violations of labor regulations or local regulations of the enterprise, inconsistencies with the position held and other violations.

According to Article 81 of the Labor Code of the Russian Federation, the reasons for terminating the contract are legally established, which allow you to calculate the employee without taking into account his interests.

The list is not closed, that is, it can be expanded in a specific situation. At the same time, management will be required to provide documentary evidence of its position if the case comes to consideration in the supervisory or judicial authorities.

The main list of reasons for dismissal at the will of the administration provides the following situations:

• closing or . When employed by an individual entrepreneur, the official termination of the employer's activities becomes the possibility of such a dismissal;
• increase or decrease in the number of employees. Both procedures must be carried out in compliance with established rules and without procedural violations;
• the worker did not pass re-certification, could not prove his professional suitability in the position held;
• in the presence of official penalties and bringing to disciplinary responsibility. The term of penalties is considered for the annual period from the imposition of the first and subsequent penalties. As a rule, dismissal under the relevant article is applied as a last resort, after several official misconduct;
• in case of a single violation of the order, which entailed serious consequences and brought significant material damage to the owner. Dismissal as a measure of punishment is applied if, as a result of unlawful actions during working hours, the perpetrators suffered physical damage to health or caused the death of other employees. First of all, citizens who grossly violate safety precautions lose their jobs;
• a single absenteeism or absence from the position held for more than half of the shift without good reason. Valid reasons include the proven impossibility of notifying about the ongoing emergency and the provision of certificates and evidence of the innocence of the employee;
• documented state of intoxication or other inappropriate behavior during working hours;
• with proven in judicial order or after an administrative investigation into the theft, the enterprise or other workers. Until the end of the procedural actions, the administration does not have the right to dismiss the employee under the relevant article;
• disclosure of state secrets or internal secret information, including professional activity other employees;
• when opening a criminal case against persons bearing liability and who have entered into an appropriate personal agreement or signed a collective agreement;
• usage technical means or vehicles of the enterprise for personal purposes without the consent of the management;
• deprivation of trust when an employee associated with material values ​​is caught in an unfair attitude to accounting or deliberately extracting selfish goals;
• discovery that, in the course of employment, false information was provided about personal data, education or professional certifications.

The list of guilty deeds indicates the main characteristics conflict situation. The question of how it is possible to dismiss an employee without his desire under the law, first of all, provides for the grounds presented. The unreasonable desire of the management to part with the employee for no apparent reason in the vast majority of cases can be challenged in court and restored to the same place.

With regard to the management of the enterprise, there are additional reasons for the termination of labor relations without taking into account personal initiative.

These include the following reasons:

• unauthorized and purely personal decision that led to significant material damage;
• change of ownership, when the new owner re-forms the staffing table;
• a single gross violation of official regulations and official duties.

For federal and regional organizations, civil servants also set additional conditions for forced dismissal. This includes the submission of incorrect income declarations to the tax office, non-compliance with the ethics of a civil servant in relation to citizens who applied, the presence of foreign assets, and exceeding their powers.

The law establishes a list of documents, which are issued to the dismissed person at his request:

• a copy of the employment contract concluded during employment;
• administrative order to terminate cooperation;
• certificate of transfers made to funds during employment;
• certificate of the period of employment, indicating the first and last working day.

The reason itself, together with the corresponding article of the Labor Code of the Russian Federation, is indicated in the work book of the former employee.

Employer Compliance

Legal justifications for refusing further cooperation with a citizen will be fully observed in the implementation the following prerequisites:

• the presence of an indication of the situation in the Labor Code of the Russian Federation;
• consistent execution of the entire procedural course of the dismissal, the absence of violations of the regulations and the procedure for notifying the employee.

In case of redundancy, the employee must be notified two months before the expected event, which gives him the opportunity to find a new place of employment. In case of conflicts, when there is an evasion from familiarization with the order, the document is sent to the place of residence by registered mail. It is possible to draw up an act on the refusal of the employee to familiarize himself with the decision, the document is signed by witnesses and representatives of the administration.

If the termination of work occurs at the will of the administration, when the dismissal is, then an explanatory note is required. The perpetrator must provide an explanation of his misconduct within two shifts, after which the consideration of the case is transferred to the trade union or the commission on labor disputes.

It is possible to calculate the guilty person for a disciplinary offense after the agreement and positive decision of these bodies. It should be noted that after a month after the commission and fixation of the violation, it is not possible to dismiss and impute guilt.

In case of misconduct that leads to criminal or administrative prosecution, a citizen cannot be dismissed until the decision of the relevant authorities. But in this situation associated with fraud, forgery or abuse of office, the employee is transferred to a place that does not allow him to repeat such actions.

The eligibility of dismissal by decision of management

disagreement with decision the termination of the employment contract can be appealed to the labor dispute inspectorate, the supervisory authority, that is, the prosecutor's office, or by filing a statement of claim in court. Before going to court, it is recommended to enlist the decision of the commission, which indicates the violation committed by the employer.

If the decision of the inspection did not affect the management, then you can contact the prosecutor's office or the court. The prosecutor's office initiates an audit at the enterprise regarding the legality of the justifications for the dismissal of an employee without his desire. A court decision positive for the plaintiff will allow him to recover in his lost place and receive compensation for forced absenteeism and.

How to fire an employee without his consent

Labor legislation provides for the possibility of dismissal of an employee at his own request, on the initiative of the employer and due to circumstances beyond the control of the parties. The employer has the right to prematurely terminate the employment contract only for the reasons provided for by the Labor Code. But there are times when an employee loses his job in the absence of legal grounds. In the article, we will consider how you can dismiss an employee without his consent.

Reasons for dismissal

The employee has the right to terminate contract of employment during any period of its validity, without explaining its intentions. The main requirement is to notify the employer 14 days before the expected date of dismissal. The employee does not incur any financial losses. On the day of dismissal, he must be paid all the money earned, as well as compensation for unused vacation.

As for the employer, Art. 81 of the Labor Code of the Russian Federation defines a clear list of reasons for dismissing an employee without his desire. They may be as follows:

• liquidation of the organization or reduction of staff;
• the employee does not correspond to the position held, repeatedly does not fulfill his direct labor duties;
• absenteeism, being at the workplace in a state of intoxication;
• committing theft in the workplace;
• providing the employer with false documents, etc.

At the same time, for each specific reason, there is a procedure for dismissal, violating which the employer may incur an administrative penalty. Below we will consider specific reasons when it is possible to dismiss an employee without his consent and how an employee can protect his interests.

Dismissal in case of non-compliance with the position held

An employee cannot be dismissed due to inconsistency with the position held, if he was simply informed of this in writing or orally, but often employees do not know about it. In paragraph 3 of Art. 81 of the Labor Code of the Russian Federation it is clearly indicated that the employer has the right to dismiss the employee for this reason only after the certification.

In its absence, the dismissal will be illegal. Also, the employer, if the employee does not correspond to the current position, is obliged to offer him another one, if any, and only if there is a refusal or there is no suitable vacancy, the employment relationship can be terminated. The dismissal must take place no later than two months after the certification.

Curious facts

In the event of a labor dispute and violation of rights, the employee must file a lawsuit in court within the next three months from the date on which it was indicated that his rights were violated. Note that, according to Article 392 of the Labor Code of the Russian Federation, issues related to illegal dismissal will be considered within 1 month from the moment the employee receives a duplicate dismissal order, or from the day the dismissed employee was given a calculation and work book.

Repeated failure to perform duties

An employee may be dismissed for failure to perform his duties only if there is a disciplinary sanction. Fixing such facts in another form contradicts labor law and the dismissal would be illegal.

In Art. 193 of the Labor Code of the Russian Federation, it is indicated that the penalty can be applied only after the employee provides a written explanation.

There are a number of important points here:

• penalty may be applied no later than one month from the date of the misconduct;
• if a misconduct is discovered during an audit or other financial check, this period is extended to six months;
• for one misconduct, only one penalty can be imposed and the employee must be notified of it in writing against signature;
• the levy shall be deemed extinguished one year after its issuance.

Failure to comply with these rules makes the dismissal illegal.

One of the reasons for terminating an employment contract at the initiative of the employer may be. To terminate the employment relationship under this pretext, it is necessary to comply with a special procedure for dismissal and a number of certain points.

Violation of labor discipline

In this category, one of the most common reasons for dismissal is absenteeism. Absence of an employee without good reason at the workplace for more than four hours is considered absenteeism. The dispute most often arises when assessing the reason for the absence, namely, whether it is valid. The classification of the cause occurs on the basis of separate regulations. If the employee disagrees, the dispute is resolved by the labor commission or in court.

Labor law states that each employee must obey the rules and regulations that apply to the organization in which he works. At the same time, there are two important nuances, which should not be forgotten: 1) these rules must be spelled out; 2) they must not go against current laws state, the Labor Code and other norms that are approved in the internal documents of the enterprise.

The obligation to ascertain the reason for the absence of an employee lies with the employer. An employee cannot be fired until the fact of absenteeism is proven.

Also, a common reason for dismissal is the appearance at the workplace in a state of intoxication. But for the legality of such a dismissal, an obligatory condition must be met: the fact of intoxication is confirmed by a medical report or testimony. The decision to dismiss is drawn up by a separate order, with which the employee must be familiarized. Only if all these requirements are met, the employee can be suspended from work with the suspension of payroll, and subsequently dismissed.

Watch a video that will tell you how to fire an employee

What to do if you get fired from your job for no reason

If the employee does not agree with the dismissal and believes that his rights have been violated, then he can appeal the employer's decision to the labor inspectorate. On the fact of the appeal, the inspectors conduct an inspection in the established legal order. If the fact of an illegal explanation is proved, the employer will be obliged to reinstate the employee in his position, as well as pay damages.

If you are not satisfied with the decision labor inspectorate a dismissed person has the right to apply to the court for reinstatement and/or compensation, including moral compensation.

To get a lawyer's comment - ask questions below

Every second or third person faces the problem of dismissal. The reasons may be different, but there are several rules of moral and ethical content that must be observed. From a legislative point of view, there are also nuances, after studying which you can avoid a number of negative consequences. How to quit your job properly so as not to harm your own career and stay in good standing with your former employer?

Tough decision

Most people try to create a favorable microclimate for themselves and those around them in the workplace, the quality of the work of the entire team depends on this. Friendly relations are established with colleagues and adequate with management. But there comes a moment when a responsible and difficult decision is made to leave the familiar environment. One or more reasons may contribute to this:

• Obtaining a more financially advantageous offer.
• career and professional growth at another place of work.
• Changing of the living place.
• Conflict with the leader.
• Illness or caring for a disabled family member.
• Inability to maintain a working relationship with one or more colleagues, etc.

Everyone has a good reason and a number of problems that force a person to change jobs. But you also need to leave correctly, extra emotions, especially negative ones, will not help to avoid negative consequences. First of all, it is necessary to calm down and remember the legal side of the issue, the rights and obligations of the employee, which are regulated by the Labor Code. The dismissal of an employee must meet all his requirements. Let's talk about everything in order.

Voluntary dismissal

A difficult decision has been made, we are preparing to complete the procedure correctly and competently. Article 80 of the Labor Code of the Russian Federation is devoted specifically to the procedure for terminating a previously concluded employment contract with an employer organization at the initiative of an employee. The main provisions of this law are as follows.

1. Each of the employees has the right to terminate the contract with the employer on their own initiative, warning the management of the enterprise in writing.
2. The letter of resignation is submitted for review to the head of the department two weeks before the termination of the contract. Within 14 days, the employee is obliged to perform his duties as usual (according to the job description) and go to work every day.
3. By agreement between the employee and the head of the enterprise, the notice period for dismissal can be reduced, that is, you can work for more than 14 days, the number depends on the agreement.
4. The dismissal of an employee on the day of filing an application can be made if it is impossible to continue working (illness, admission to educational institution, violation by the employer of the Labor Code of the Russian Federation or other normative act, retirement age, disability, urgent relocation and other circumstances specified in the application).
5. After the submission of the application, the employment contract concluded earlier must be terminated on the 14th day. During this time, the employee has the right to pick it up, in which case the agreement continues to operate. But if an appropriate order is issued, and another employee is invited to this position, then there are no grounds for refusing to hire a new employee.
6. After the expiration of the notice period prescribed by law (2 weeks), the employee has the right not to visit the workplace, even if the employer has not terminated the contract.
7. On the last working day, the enterprise is obliged to pay the employee the calculation and all due compensation, display the dismissal in the work book, which is issued on the same day.
8. If the period allotted by law for a notice of dismissal has expired, and the employee continues to go to work, and the employer has not issued an appropriate order, then the application may be considered canceled.

Procedure

The Labor Code boils down dismissal to three main points.

1. Filing a letter of resignation.
2. Working off the notice period (at least 14 days from the date of application).
3. Receipt of the calculation and work book by the employee (negotiated with the management, but no later than the last working day).

In real conditions it is possible various options developments that are based on the disagreement of the parties with any item. Employers often try to delay the working time if the employee is of value to the company: they do not sign the application or say that they did not read it in a timely manner. Sometimes there are unpleasant situations with a delay in the calculation and receipt of the necessary documents. On the part of the employee, the most common violation is failure to perform work duties and absence (without a good reason) from the workplace after filing an application, which is regarded by the employer as absenteeism. From point of view Labor Code, this may entail dismissal under another article or sanctions (including fines) prescribed in the internal documents of the enterprise. In any case, all disagreements can be resolved through negotiations, which is what lawyers advise. If this is not possible, then each party may apply to the judicial authorities. To avoid conflict situations, the employee and the employer must clearly follow the norms of the law and not allow the opposite side to violate it. First of all, write a letter of resignation correctly. As shows arbitrage practice, a large number of employee makes mistakes.

Statement

In legislative acts there is no clearly developed form of application for dismissal, therefore, disputable situations often arise. Enterprises independently create unified forms that are used as a form. In most cases this species The document is written by hand and has standard content. What is the right way to quit your job? Write a competent application, and many lawyers advise doing this in duplicate and registering as an incoming document or signing a familiar official with the date. The second copy remains with the employee and can be used in the event of a conflict. For example, in case of loss of a document or its untimely provision by the head of the department to the director of the enterprise. A typical application form looks like this:

Director of Neva LLC

Sidorov I.I.

From the accountant Selezneva A. Yu.

Statement

I ask you to dismiss me from my position at my own request on 07/14/2011.

Selezneva A. Yu. (signature) 07/01/2011

This form is simple and informative, it indicates the expiration date of the warning period and clearly states the date of submission of the document. An employee can write a letter of resignation in advance (six months, three months), this is not prohibited by law, although this situation rarely occurs in practice. Judicial practice shows that most disputes can be avoided if the employee and the employer clearly and in writing agree on their wishes.

Terms of dismissal

From the moment of registration of the application, the legislation establishes a period (two weeks) of 14 days, after which the employee must receive a calculation upon dismissal and a work book form with a corresponding entry. For many reasons former employee seeks to reduce this time. The task is solved easily in case of mutual consent of the parties (employee and employer). You can quit your job without working off by filling out an application in the appropriate way or by signing a separate agreement. The letter of resignation indicates the date the employee wants to terminate the contract. If the head signs it, the order is issued within the specified time. For an employee main task is the correct justification for the need emergency dismissal and the presence of a person who can take up his duties in short term. The objective reasons may be illness, urgent family circumstances, etc. If the head of the enterprise does not agree with the arguments of the employee, then he will have to work out the time prescribed by Article 80 of the Labor Code of the Russian Federation in full. Therefore, the question of how to quickly quit a job is relevant for many employees, especially for those who are afraid of missing out on a more promising job that seems very attractive to them.

Calculations upon dismissal

After terminating the contract and signing the corresponding order, the employee must receive all the required types of calculation, and compensation is also paid. Upon dismissal, the accounting department calculates wages based on the hours actually worked for the current month, regardless of the end date of work. As a rule, there are no problems with this type of payment, the calculation is made in the standard mode. Most often, questions regarding accrual arise when issuing compensation for unused vacation. Upon dismissal, the calculation of this amount may cause controversy. Vacation pay is accrued to employees in accordance with Article 121 of the Labor Code of the Russian Federation annually, while many employees do not actually go on vacation at their own request or at the initiative of their immediate supervisor. Information about this payment is collected for the entire period of work, that is, for each year, regardless of the fact that the vacation was used. Compensation upon dismissal is regulated by article 127 of the Labor Code of the Russian Federation. If an employee has the right to additional (extraordinary) leave due to the type of activity, then his payment is regulated by internal normative documents enterprises and management decisions. For advance vacation pay this amount withheld from the calculation. Other types of severance pay and compensation payments depend on the type of activity of the enterprise and the profession of the employee.

Withdrawal of the application

Sometimes the employer, when negotiating with an employee about dismissal, in view of the value of a specialist, tries to interest him in more favorable working conditions and leave him at the enterprise. This may be a salary increase, career growth or a more responsible area of ​​work. At the same time, the remaining 14 days of working out remain for the employee to carefully consider the proposal of the management. The result is not always predictable, but most people, when thinking about the prospects for promotion and the fact that they can stay in their own team, most often withdraw the previously written statement. This is usually done in two ways: either after a period of 14 days, the employment contract remains in force by agreement of the parties, or an official document is written to invalidate the resignation letter. There is no unified form of the document, so it can be written in any form. It is invested in the personal file of the employee, and the application for dismissal of one's own free will loses its legal force.

Leaving the right way

Regardless of the reason for leaving, the employee must behave very correctly and with dignity, leave the best impression of himself both as a person and as a specialist. To do this, you must follow a few basic rules. You can’t go “nowhere”, you first need to choose a job, go for an interview. If the future place is objectively more promising, then you can prepare the team for your departure. Some employers are sympathetic to the fact that an employee is looking for a new place, because they cannot provide prospects for further growth and development. Although most managers and colleagues treat the one who submits the letter of resignation as a traitor.

Diplomacy

It is possible that bright prospects for work in new position in the long-awaited place they will remain dreams, so you should communicate very correctly with the management. No one is immune from mistakes, what if you have to return? When talking with the director, it is necessary to use a maximum of arguments and a minimum of emotions. The reason for leaving should be formulated in such a way as not to affect the person's pride. It is best to start a conversation with gratitude for the invaluable experience of working under his leadership. If you correctly formulate your request, then you may be able to quit your job without working off. But at the same time, it is necessary to provide justification for the completeness of all your current affairs. If the diplomatic approach has given a positive result, then you can ask for recommendations for a new job. And then you can even sit down to write the book "How to quit your job." The main rule: do not slam the door and shout about what a bad enterprise it is, even if the dismissal of an employee occurs at the initiative of the head, you must at least “save face”.

team

How to quit your job properly so as not to cut off friendships and be able to return? The recipe is simple - be open and friendly. The work team is a big family - if you explain correctly, you will be understood and supported. A prerequisite upon dismissal is the delivery of all current projects, the completion of the work begun. It will be very good if an employee brings a qualified specialist to his place, whose training will not take much time. Then the workflow will not suffer, which will be very pleasant to the management of the enterprise and colleagues at work. After submitting the document on dismissal and if it is signed by the director, it is necessary to notify all counterparties with whom working and personal contacts have been established. This will help not to lose useful contacts and establish them if necessary, and it will also facilitate the work of a person who will work with them in the future.

The final stage

After receiving the full amount of the calculation and due compensation do not forget to say goodbye to colleagues warmly, a small tea party will leave pleasant memories. But in the festive bustle, you need to collect everything Required documents. Employment history must contain a record of the termination of the employment contract at the initiative of the employee, i.e. Art. 80 of the Labor Code of the Russian Federation. If you manage to get a letter of recommendation from management, it will be very useful both for the employee and for the image of the employer's company. In the accounting department, you must obtain a certificate in the form of 2-NDFL (income tax) for the last 6 months. It will be needed at the new place of work for the calculation sick leave or holidays. Do not try to take everything that has been developed with you, colleagues will be grateful if you leave the developed pivot tables or indicator charts to them and teach them how to make the same ones on their own.

The question of why they can be fired from work according to the law is of interest to many workers. Knowing the answer, the worker will be able to prevent some grounds and stay in the organization. For what reasons can an employee himself initiate the termination of an employment relationship?

Reasons for dismissal

The grounds may be as follows:

1. Reducing the number of workers in the company or laying off positions. At the same time, if they are going to reduce the position, they can be fired only if there are no other vacancies suitable for the employee.
2. Termination of the activities of a company or individual entrepreneur.
3. Mismatch of education and experience of the employee of the position. In this case, they are fired only by decision of the certification commission and only if there are no vacancies corresponding to the experience of the employee.
4. Repeated violation of the job description by the employee. It is possible if there is a disciplinary sanction within a year.
5. Gross breach of contract. This includes absenteeism, the appearance of a worker in a state of toxic intoxication, or immoral behavior.
6. Providing false documents to workers.

A boss can be fired for violating instructions that lead to injury to workers or an accident at the plant.

When are they not allowed to be fired?

The manager does not have the right to dismiss those workers who are on vacation or are disabled for a certain period of time, except when the organization is being liquidated.

In addition, the following categories of workers cannot be dismissed:

1. Pregnant women and women in maternity leave. The exception is the termination of the existence of the enterprise.
2. Mothers of many children and single mothers raising children under 14. If the child is disabled, the term until which it is impossible to dismiss is increased to 18 years. However, if the terms of the contract are violated, they can be fired, as is the case with the liquidation of the company.
3. Employees who are the sole breadwinners of the family with minor children.

In order to avoid dismissal, it is necessary to provide the relevant documents to the employer. For example, in the case of pregnancy, a certificate from a gynecologist is required, and in the case of a young child, his birth certificate and a certificate of family composition.

An employee can be dismissed only on certain grounds, at the same time, this procedure must be followed. If the worker is sure that the dismissal is illegal or the procedure for terminating the employment contract has been violated, he has the right to contact the appropriate authorities.