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Stanislav Sazonov

What are the dangers of layoffs?

Termination of an employee can have negative consequences for you as an employer.

1. Even if the employee is fired legally, but complains to labor inspection, and when checking the correctness of the dismissal, they will find errors in the preparation of employment documents (orders, work book, and so on), a fine will be imposed:

• for you as an individual entrepreneur - from 1000 to 5000 rubles; from 5000 to 10 thousand rubles for the absence employment contract or for errors in it;

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

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

Moreover, fines on the director of the company and on the company can be imposed simultaneously.

That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the absence of an employment contract: a fine of 20 thousand for the director and 100 thousand rubles for the LLC.

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

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

Consider how to avoid the second situation.

Dismissal: 80% psychology and 20% law

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

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

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

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

It is understatement and unrealistic expectations that are the main causes of conflicts.

The employer thinks: “It seemed to me that everything was super, he understood everything, he will work the way I need. But he breaks deals, he doesn’t know how to communicate with clients, who called, doesn’t remember, doesn’t write down contacts, says “Hello” on the phone, but he should say: “ABV company, Ivan Ivanov, good afternoon” ... Well, my!

The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, I would work 24 hours a day, three times four hours a day, but in reality it came out only 30 thousand rubles, and I had to work seven days a week and for 10 hours ...”.

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

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

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

“I'm taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell for 200 thousand rubles. In the second - for 350 thousand rubles. In the third - for 400 thousand rubles.

If you cannot reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need this. Do you agree? If you agree, then let's go."

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

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

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

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

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

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

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

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

• dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);

• dismissal for own will(clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee if he disagrees (we will consider only those grounds that are a measure of disciplinary responsibility, that is, punishment for the incompetence of an employee). This:

• dismissal in case of repeated non-performance by an employee without good reason job duties if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal in the event of a single gross violation of labor duties by an employee (absenteeism, appearance in a state of intoxication, disclosure of secrets protected by law, theft at the place of work, violation of labor protection requirements) (clause 6, part 1, article 81 of the Labor Code of the Russian Federation);

• this also includes dismissal on probation with an unsatisfactory test result (Article 71 of the Labor Code of the Russian Federation).

Termination of an employment contract (dismissal) is recognized as legal only if two conditions are met:

• the grounds for dismissal are expressly provided for by the Labor Code;

• follow the procedure for dismissal on this basis.

5 Safe Ways to Fire a Negligent Employee

The first and best way: dismissal by agreement of the parties

Firstly, unlike voluntary dismissal, in which the employee can withdraw the letter of resignation, the employee who signed the document on termination of the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be challenged.

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

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

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

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

LLC "ABV" represented by CEO Ivanova I. I. invites you to conclude an agreement on termination of the employment contract on May 15, 2016 on the basis of paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties. I ask you to notify your consent or refusal to accept this proposal in writing within two days. Date of. Signature. Seal".

The agreement must be in writing. No form of such an agreement is provided by the Labor Code. So you can take this example:

The second way, also not bad: dismissal of one's own free will

Article 80 of the Labor Code of the Russian Federation: “An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

Everything is simple here - the employee writes you a statement that he wants to quit of his own free will.

Main disadvantage:

article 80 of the Labor Code of the Russian Federation: “Before the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with this Code and other federal laws cannot be refused to conclude an employment contract.

However, you can conclude an agreement on dismissal "on your own" and before the expiration of two weeks.

Also, sometimes for better motivation upon dismissal of their own free will, they offer to write a good testimonial.

If suddenly an employee says that he was forced to write a statement “on his own”, then he must prove this in court (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It's nice that a non-entrepreneur will have to make excuses. This is important in such cases.

The third way: dismissal of an employee who did not pass the test

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

Basic rules of the trial period:

• in case of an unsatisfactory result of the test, the employee can be dismissed before the expiration of the test period, warning in writing, no later than three days, indicating the reasons;
• testing may not be available to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, a test for employment is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who 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;
• if there is no probation clause in the employment contract, then the employee is accepted without probation;
• probation cannot exceed three months;
• if the probation period has expired, and the employee continues to work, then he is considered to have passed the probation, and he will have to be dismissed on general grounds.

How to get fired right

1. Non-standard option.

It is possible to replace the dismissal on the basis of an unsatisfactory test result for dismissal of the employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article says that if during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, warning the employer about this in writing three days in advance.

In most cases, such a situation is resolved amicably: the employee is informed that he was not suitable for the job in the position for which he was hired, that is, he did not pass the probationary period. He understands this and leaves of his own accord. The question is settled: and the employer has achieved his goal, and the employee does not have a "bad" entry in the work book.

2. Standard option.

It is necessary to establish a probationary period in the employment contract, including:

• comply with probationary restrictions;
• comply with the test period.

On this occasion, it was written above in the basic rules of the probationary period.

It is necessary to draw up official (report) notes on work during the test, as well as other documents indicating that the employee does not stand the test. Either document the test procedure and show that it is violated.

Draw up a written decision that the employee did not pass the test. Correctly calculate the period for warning the employee about an unsatisfactory test result.

Warn the employee in writing about an unsatisfactory test result no later than three days in advance, indicating the reasons (part 1 of article 71 of the Labor Code of the Russian Federation). Dismiss after the expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in in due course(Art. 84.1 and Art. 140 of the Labor Code of the Russian Federation).

The fourth way: dismissal in the event of a single gross violation by the employee of labor duties

You can be fired for the following one-time gross violation of labor duties by an employee (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):

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

As it obviously follows from the word "one-time" - you can be fired if these actions are committed at least once.

Since in these cases the grounds for dismissal are disciplinary violations, when applying dismissal as a disciplinary sanction, it is necessary to thoroughly observe the procedure for imposing a disciplinary sanction, established by Art. 193 of the Labor Code of the Russian Federation.

How to get fired right

The procedure for imposing a penalty is specified in Article 193.

It is necessary to record the misconduct either in documents, or in the form of a memorandum, or in the form of an act (preferably with witnesses). You will have to prove later, so try.

Before applying a disciplinary sanction, the employer must request a written explanation from the employee. Explanations are provided in the corresponding note.

The explanatory note should have a heading beginning with the preposition "o" ("about"), followed by the subject of the explanation.

An explanatory note is written on a regular sheet of paper indicating:

• the name of the employer;
• document type;
• dates
• compiler's signature.

If the employee refuses to write an explanatory note, then an act of refusal to give explanations is drawn up. It is better to sign the act to several persons (the more, the better).

The employee is asked to sign the act. If he refuses to sign the act, an entry is made in the act about this - and everyone signs it again. By the way, no one forbids capturing the fact of refusal on a mobile phone camera.

Not later than one month from the moment of committing the misconduct, an order is issued to impose a disciplinary sanction and dismissal.

Dismissal on the specified grounds is allowed no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, being on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of the employee (part 3 of article 193 of the Labor Code of the Russian Federation).

Fifth way: dismissal in case of repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction

As it obviously follows from the word "repeated" - you can be fired if these actions are committed more than once.

Such violations include, in particular:

• the absence of an employee without good reason at work or workplace;
• refusal of an employee, without good reason, to perform labor duties in connection with a change in the established procedure for labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to fulfill certain labor function comply with the internal rules of the organization work schedule(Article 56 of the Labor Code of the Russian Federation);
• refusal or evasion without good reason from medical examination of workers of certain professions, as well as the refusal of an employee to pass work time special training and examinations in occupational health, safety and operating rules, if this is prerequisite permission to work.

When using this ground for parting with an employee, it is necessary to pay attention to the explanations given in clauses 33–35 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code of the Russian Federation”.

Thus, the courts, considering disputes, should take into account that the employee’s failure to perform duties without good reason is understood as non-performance of labor duties or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions , regulations, orders of the employer, technical rules etc).

The employee must be convicted of non-fulfillment of his labor duties without good reason, that is, of committing a disciplinary offense. At the same time, a disciplinary sanction must be imposed on this employee, which must not be removed by the time a new offense is committed.

How to get fired right

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

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

It costs more to use it. Because even after signing such a statement, the employee can go to the labor inspectorate and sue the company:

• compensation for moral damage,
• compensation for forced downtime (based on the average salary of an employee),
• achieve reinstatement in the workplace.

And history knows many examples when an employee won the court. Also, the company will have to pay an administrative fine for violation of labor laws - up to 50,000 rubles. Fire an unwanted employee? Legally! There is no need to invent and contrive! The Labor Code already spells out legal ways of dismissal at the initiative of the employer. They should be used if the employee works in bad faith.

5 ways to fire an employee without consequences for the company

Attention

What is good, what is bad? First of all, it should be noted that when an employee does not cope with work, this is a consequence. If you focus on possible reasons, it is not uncommon to find that a company lacks clear, measurable, and written criteria for what level of performance is expected from an employee in a given position, and what is considered unacceptable and inevitably leads to dismissal.

Important

Therefore, if, according to the results of certification, an employee of one of the listed categories is found to be inappropriate for the position held, it will only be possible to send him to advanced training courses, offer him a transfer, etc., but it will not be possible to dismiss him. However, before dismissing an employee for this reason, the employer by virtue of h. 3 Article. 81 of the Labor Code of the Russian Federation must offer him a transfer to another job he has (both to a vacant position or job corresponding to the qualifications of the employee, and to a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health. At the same time, he must be offered all the vacancies that meet the specified requirements that the employer has in the area.

How do you get fired when an employee doesn't want to leave?

It is necessary to assemble a commission of people who have a professional understanding of the work of employees subject to certification. Bad results - the employer has the right to fire the employee, but only if he refuses another vacancy in the company that matches his qualifications.

• Absenteeism and lateness

One absenteeism of an employee (from 4 hours in a row or during the whole working day) is enough to fire him, as this refers to a gross violation of labor duties by the employee (art.
81, item 6). It is more difficult to fire an employee who is constantly late, but it is also possible. You cannot be fired for a single delay, you will need to collect several explanatory notes about being late and impose a disciplinary sanction.
At the same time, the work schedule must be specified in the internal labor regulations, in the employment contract.

"fire!" eight reasons not to delay this decision

Info

The situations are different. The new top, for which the headhunters fought so hard, does not cope with its duties or does not suit the management. An old-timer of the company, who has been on the staff for several years, has become a drone and openly neglects his duties.

We are talking about cases where employees know that they are not working in good faith, and it would be better to leave, but they take advantage of the fact that Labor Code made the formal dismissal process quite difficult for the employer. But loopholes that still exist in the code come to the aid of HR specialists and employers.

Expensive mistake Let's say right away that asking or forcing an employee to sign a statement of their own free will is an effective, but absolutely illegal option.

The employee does not cope with official duties (Davydova E.V.)

For those who are guided by the certification procedure provided for by regulatory legal acts, the grounds for conducting an extraordinary certification are established by these acts or federal laws. Thus, an extraordinary certification of an internal affairs officer is carried out: - when deciding on the transfer of an employee to a higher or lower position in the internal affairs department; contract due to the inconsistency of the employee with the position to be occupied in the Department of Internal Affairs (based on the recommendation attestation commission); - at the suggestion of the authorized head when considering issues of transferring an employee to another position or dismissal of an employee from service in the Department of Internal Affairs; - if the employee has not passed the test for professional suitability(art.

Employee does not want to quit

You should not dwell on the mistakes made by the employee, because they can no longer be corrected. In conclusion, try to express your empathy to the employee in view of the current situation, cheer him up and reassure him that everything that happens is for the better, and a job change can be an occasion for professional, career and / or financial growth. The second rule is "nothing personal". Make it clear to the employee that this situation does not involve the employee's personality. Phrases like: “Your views are outdated”, “You find it difficult to master new techniques”, etc. will be erroneous. The statement will sound more tolerant: “We appreciate your professional experience, and at the same time, the company now faces new challenges that require different skills.”
How can you dismiss an employee without his consent, if you do not want to wait a long time? It is recommended to take a closer look at your subordinate. Maybe he will commit a serious offense. Then just one violation is enough to terminate the employment contract.
On a similar example, we will consider the dismissal at the initiative of the employer. Serious violations can be considered:

• major damage to company property;
• theft;
• absenteeism;
• being at work under the influence of alcohol or drugs.

These are the most common in real life circumstances.

So how can you legally fire an employee without their consent? Instructions for dismissal It is necessary to act according to a certain pattern. It will help to avoid violation of the established rules of the Labor Law.

So, the termination of the contract will be fully legal.

How can you fire an employee if he does not cope with the work

Labor Code of the Russian Federation during certification, which may serve as a basis for the dismissal of employees in accordance with paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation, a representative of the elected body of the relevant primary trade union organization must be included in the attestation commission. The procedure for dismissal So, the basis for dismissal under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation is the decision of the certification commission on the inconsistency of the employee with the position held due to insufficient qualifications. Such a decision is documented in a protocol signed by all members of the commission.

The employee must be familiarized with the protocol under the signature. Please note that in Art. 261 of the Labor Code of the Russian Federation establishes categories of employees who cannot be dismissed at the initiative of the employer, including under paragraph 3 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
When hiring a new employee, it is not always possible to predict how he will cope with his work in the future. In order to quickly understand whether the employee is suitable, he is usually given a probationary period. It is more difficult when the test has ended long ago, and the quality of the employee's work does not suit the employer. In this case, you can send the employee to training or advanced training courses, offer him another position, or even dismiss him for inconsistency with the position due to insufficient qualifications. Such a discrepancy can be established only as a result of certification. We will talk about what qualification is and how to properly dismiss an unqualified employee in the article. Qualification of the employee To perform the duties of a particular position, the employee must have the appropriate qualifications.

The court also evaluates the work of the certification commission itself (on which the members of the commission were based when making a conclusion about the inconsistency of the employee with the position held). on termination of the employment contract, and K. V. V. was reinstated at work at the Federal State Unitary Enterprise Russian Post.

The requirement was satisfied, since the conclusion of the attestation commission on the incompatibility of the plaintiff with the position held was not based on an objective assessment of his professional and business qualities, and the attestation sheet did not reflect which requirements job description does not match K.V.

Many employers often need to find out how to fire an employee without his will under the law. Given the very strict requirements of labor legislation, as well as the fact that very often workers, especially retirees, do not want to leave, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers, as a result, are even forced to conduct activities to their own detriment, instead of looking for information on how to dismiss an employee under the article and without consequences. However, there is always a way out of this situation - because labor law protects the rights of not only employees, but also employers.

How to fire an employee without his desire by law in 2018

Situations in which an employer wants to fire an employee without his desire under the law are extremely common in 2018 - some employees may perform actions that are clearly destructive for the company, do not fit in with the team and spoil the working environment, or the need for dismissal may also be caused by third-party circumstances. At the same time, very often employees use the fact of protection from the law and in every possible way prevent their dismissal. Therefore, with illiterate actions, the employer is either forced to tolerate their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

However, the law also protects employers by providing them with such tools to influence employees:

• This - best option, since it will allow the employee not to receive negative entries in the work book, and the employer will get rid of possible claims. At the same time, you can both convince the employee to write and draw up an agreement with him to terminate the employment contract - the second case provides for the opportunity to provide the employee with any guarantees and payments in accordance with the provisions of Article 78 of the Labor Code of the Russian Federation. However, not every employee will take such actions - if he is determined to stay at work at any cost, then it will be impossible to dismiss him in this way.
• The current legislation gives the employer the power to use disciplinary action against employees, up to and including dismissal for a certain list of misconduct. At the same time, the range of grounds for dismissals is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an objectionable employee if he does not follow instructions or grossly violates labor discipline.
• In cases where the main purpose of dismissal is to save the company's finances, it may turn out good option dismissal of an employee without his desire, according to the law, it is a reduction in staff. However, it should be remembered that this method requires the strictest adherence to procedural requirements and is associated with additional costs for the employer.
• If it is necessary to dismiss an employee who does not want to quit, having a probationary period will greatly simplify the dismissal procedure. However, with such a nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.
• Repeated violation of labor regulations. If the employee did not commit gross guilty acts, due to which he can be fired immediately, then if there are several disciplinary action, he can still be fired under the article.
• Mismatch or insufficient . In some situations, an employee can be fired for inconsistency with the position held or due to insufficient qualifications.
• In the event that an employee who does not want to quit, occupies a managerial position, he can be dismissed without other grounds when the owner of the enterprise changes. Sometimes employers even have to specifically resort to a change of ownership in order to fire an employee who threatens the operation of the entire company.
• The employer has the right to independently change working conditions for individual positions or the entire enterprise as a whole, which allows you to put the employee in conditions that will make his further work simply unprofitable. And although the employee has the right not to agree to work under the changed conditions, the employer will have the opportunity to fire him, observing a number of certain procedural actions.

There are some categories of employees who cannot be fired at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be fired even if she commits gross misconduct and guilty actions against the employer. The ability to dismiss an employee who has a child under the age of three is also limited - if this employee is a woman or the sole breadwinner.

Each of the above methods of dismissal has its own characteristics, advantages and disadvantages, as well as many nuances of the procedural registration of the procedure, so they should be considered separately in order to know how to properly dismiss an employee by law in 2018 if he does not want to quit.

How to force an employee to quit voluntarily or by agreement

In many, even conflict situations if there is a need to get rid of an objectionable employee, employers simply do not know how to force the employee to quit of his own free will or convince him to stop labor activity by agreement of the parties. At the same time there is enough possible actions that can be taken to ensure that the employee accepts correct solution, even when it is initially set to conflict with the employer.

First of all, you should use polite treatment with the employee and find out why he does not want to leave and what actions the employer can do for the employee. This may be additional monetary compensation, issued by agreement of the parties, drawing up positive recommendations, or other benefits that may incline the worker to cooperate. However, it is not a fact that the employee will accept them.

Therefore, then the employee should be explained that he will not achieve anything by conflict, and the employer will have significant opportunities to “spoil” the employee’s life. In particular, it is necessary to notify him that a “bad” entry in the work book will significantly complicate employment. In addition, the employer may make a negative recommendation about the employee. But these methods of influence do not work for every employee.

In this case, the simplest tactic of action will be to use all the tools provided by the legislation. For example, initiate the fixing of the employee’s working time, issuing all instructions to him in the form of written orders with acts of acceptance, and fixing each result or error in the employee’s activities in order to find another reason for dismissal. Including the employer may be required to resort to one of the following methods.

The most convenient for the employer will be the dismissal of employees, if initially in the employment contract the working conditions are specified as clearly as possible, but with the possibility of the employer making certain assumptions. For example, an employer has the right to set an employee a low official salary or not indicate a specific place of work within one locality - then he will have the right to deprive the employee of the bonus part of the salary, if such an opportunity is provided for by local regulations, or transfer him from place to place without his consent.

In general, these methods of action are legal, but they cannot guarantee a 100% result. Therefore, if they fail, other methods will have to be used. It should be noted that even voluntary dismissal can be challenged in judicial order if it was done under duress. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then arbitrage practice demonstrates the minimum number of decisions in favor of the employee, since such a dismissal is almost impossible to challenge.

The dismissal of a pregnant woman of her own free will, as well as by agreement of the parties, is an exception. In this case, the court most often takes the side of the employee if the employer did not provide her with adequate compensation upon dismissal, comparable to the possible benefits that she would have received if she had remained at work.

How to fire an employee for a gross violation

The current legislation provides for a number of grounds on which an employee can be dismissed for a gross violation. However, the employer should remember that each such violation must be accurately and reliably documented in the manner prescribed by law. Gross violations that allow you to dismiss an employee on the sole fact of their implementation include:

This is an exceptional list of circumstances in connection with which it is possible to dismiss an employee without his desire under the law in 2018 due to a one-time misconduct. In this case, the employer will be required to complete the following procedural procedures:

1. Begin an official investigation regarding the circumstances.
2. Ask the employee for an explanation.
3. Issue an order to dismiss an employee.
4. Issue to an employee work book, funds due to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judiciary imposes on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that during absenteeism for a good reason, an employee cannot be fired if the state of intoxication was not recorded by authorized persons - the employee also cannot be fired, disclosure of secrets or personal data must have all the signs of disclosure.

Notification of the employee and the issuance of all documents related to the dismissal to him must be carried out in the presence of witnesses and with their signatures on the transfer of documents to the employee and, if any, on the employee's refusal to accept them.

How to dismiss for non-compliance or insufficient qualifications

If the employee does not correspond to the position held or has insufficient qualifications, the employer has the right to terminate the employment relationship with him. At the same time, it should be remembered that this ground for dismissal must indeed take place and certain confirmations. In addition, the very establishment of qualifications and compliance job requirements of an employee must be carried out in independent centers for assessing qualifications, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should take into account that a fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for services to confirm the qualifications of an employee.

A mandatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. It will be possible to finally terminate the relationship only if there are no such positions in the enterprise, or if the employee refuses to occupy them.

How to dismiss an employee without his desire under the law by changing the terms of the contract

A common method used to fire an employee without his will under the law in 2018 may be to change the terms of the employment contract. According to the law, the employer can make such changes only with the consent of the employee. However, a number of actions and situations allow changes to be made without the consent of the employee.

In this case, the employer only needs to notify employees 2 months in advance of changes in working conditions, including the place of work, the amount or system of payment, official duties in connection with the reorganization production processes. The very fact of reorganization must also be confirmed by internal regulations. Employees who do not agree with these changes should be given the opportunity to take any other vacant position suitable for them in terms of qualifications and health at the enterprise - and only after their refusal or in the absence of these positions, they can be dismissed.

How to get fired on probation

If an employee must be fired without his will during a probationary period, the provisions of the current legislation give the employer additional features to carry out this procedure. In particular, he can inform the employee about his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputable situations should take into account the following nuances:

• It is the employer who must provide evidence confirming the employee's failure to pass the test. In their absence, the dismissal will be considered illegal.
• The employee must be legally on probation. And this period cannot be assigned to young professionals, pregnant women and minors.

Therefore, basically challenging the dismissal during the probationary period is based precisely on the above two grounds. And it is the employer who should take care of the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to lay off an employee without his desire

If it is necessary to reduce an employee without his desire, the employer has the right to do this in accordance with the standards of Article 81 of the Labor Code of the Russian Federation. At the same time, it should be remembered that the employer in connection with such a dismissal has a number of responsibilities:

• Advance notification of layoffs. Employees must be given at least two months' notice of impending layoffs.
• Mandatory notification of all regulatory authorities. Namely, a trade union organization, an employment center.
• Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
• Execution social guarantees for certain categories of employees. Such guarantees include both a complete ban on layoffs for some workers and the right of workers to have priority retention in the workplace.
• Everyone's offer vacancies. The employer, as in many other situations, is obliged to provide the reduced opportunity to get other vacancies suitable for them.

You can also read more about the features of layoffs to reduce staff, where all the nuances of this procedure are considered.

How to fire an employee without his desire according to the law in 2018 - other nuances and features

In case you need to dismiss an employee without his desire according to the law in 2018, there are also many other additional nuances and features that unscrupulous employees can use to keep them at work. In particular, regardless of the circumstances, the dismissal of employees on sick leave or vacation is expressly prohibited. In this case, it is necessary to notify the employee in writing about the need for him to sign an agreement to dismiss on a specified date, or else - to first require such consent from him.

An attempt to dismiss a pensioner without his desire according to the law in 2018 can cause particular difficulties for the employer. In practice there are no normative documents, which in a special way would regulate the procedure for the dismissal or retention of pensioners at work. The exception is public service of any nature - in this case, the age limit at which an employee can hold a position is 65 years old and he will not be able to challenge such a dismissal.

The Technical Support Director never thought that an employee with such a solid track record and enthusiastic references might lack writing skills.

It was assumed that the person applying for vacancy, should be able to quickly present in simple language recommendations to specialists in information technology, considering that this text is addressed to users of the company's consultation center located on the east coast. So when the director found that he had to edit the reports prepared by this employee all the time, he realized that there was cause for concern.

"It's getting ridiculous. I sometimes have to ask myself what is the meaning of this paragraph," says the director. "If I can't understand it, it's unlikely that the head of our client company will."

The director believes that dismissal is a last resort. Considering that a person needs time to adapt and adjust his work, he usually appoints a trial period of two to three months.

But when an employee still performs much worse than his colleagues, the director understands that he needs to look for a replacement. At the end of the probationary period, the director fired this employee.

It is an unpleasant, but very familiar task for many managers - to fire an employee who does not cope with his duties in a way that is legal, ethical and constructive for the company. Except in cases of gross negligence, most managers do not consider firing employees who are having difficulty performing their jobs. Combining preventive action with a corrective or disciplinary program can save you from making big decisions and keep you from having to make repeated attempts to find an employee because someone is doing a sloppy job.

Fair Warning

The main rule: the dismissal should not be unexpected for the employee. So says Patricia Stansbury, president of the Northern California Human Resources Association. While it's not always easy to be honest, she recommends that you warn the employee as early and unequivocally as possible.

“Nobody will be better off if you let a person work for a long time somehow,” Stansbury is sure. “It is a lot like raising children. Most leaders don’t want to hear about how to sit down and talk honestly about everything.”

Since companies usually do not have enough time, close cooperation between managers and HR specialists is of particular importance from the moment when it turns out that an employee of the company is not coping with his duties.

The first thing that is done in this case is the tightening of discipline or increased supervision. Some companies are resorting to more stringent measures, which may have some effect.

"I don't like the expression 'probationary' because in this situation I feel like I'm forcing a person to look for another job," Stansbury said.

When Stansbury herself worked as a director, she had an employee who did not have the required recruitment agency communication skills. Realizing this, the employee immediately took steps to improve her skills. This quickly led to a positive result, since she herself came to such a decision and wanted to implement it.

If this problem is not given due attention, then as a result, the company's management will look for a way to force the employee to leave work. However, according to Stansbury, drastic change official duties or an attempt to create unbearable working conditions usually does not lead to good.

"It's called an implied dismissal, and I can't approve of that," Stansbury said.

"Implied dismissal" can also negatively affect the morale of the manager himself. One of the chief information officers, who asked not to be named, said that after working for the company for five years, he was forced to leave because he was constantly asked to force out unwanted employees. According to him, the so-called "dirty little secret" of the industry in which he worked is that dismissal by default is often used as a means of resolving personal conflicts that have nothing to do with how well an employee performs his or her job. job responsibilities.

"IN private company where there is no board of directors or shareholders to whom the company's executives can report, you can do whatever you want to fire an employee," the manager said.

Preventive measures

While measures taken against employees who are not doing their job are certainly useful, most people would agree that it would be better not to apply them.

"It may sound strange, but I have never fired anyone," said Stefan Clark, who has been director of IS for Christiana Health System for two years. Clark believes that this is due to the fact that he conducts a very careful selection, and in addition, a friendly atmosphere in the company and frequent spot checks to control the quality of the work of employees play a significant role.

In a selection process he jokingly calls "brutal and exceptional punishment," Clark's company uses a multi-stage evaluation process to determine a candidate's suitability. The first test is a telephone interview to test oral communication ability; followed by an individual interview with a manager, project leader and analyst. Clark recalls that the interview with him lasted two days, and in total 14 people spoke to him, making a decision about whether he was suitable for this job. Such a tough approach reduces the likelihood that a hired employee will not cope with their duties.

"There are a number of circumstances due to which a person does not cope well with his duties," Clark said. "This may be due to a change in the usual way of working or problems in his personal life."

Some tightening of discipline in his company is carried out in order to support the employee at the "basic level of competence", and this support is provided to the employee from the moment he is hired. If, after the first three months of work and continuous training, the problems have not disappeared, the person is sent on "decision leave", that is, he is forcibly removed from work for one day. During this time, according to Clark, the employee must decide whether he wants to work in this organization.

Clark believes that such suspension from work is painful, but constructive.

"Usually this solution works," Clark said. "The cost of finding a new employee far exceeds what the company gets by retaining employees in whom the funds were invested."

Trust in the employee allows both parties to find a mutually beneficial solution. As Clark noted, helping a laid-off employee find another job is part of the company's culture, which is why many people want to work in his organization.

"The staff turnover in our company has come to naught over the past year and a half," he added.

Lessons Learned

After all, being fired can teach both sides a lot.

According to Stansbury, the dismissal of an employee who has not coped with his duties provides an opportunity to evaluate the work of the company's management. Stansbury believes it is essential to interview laid-off employees in order to find out what the system's shortcomings are.

“At this point, employees are ready for a frank conversation, and are prone to critical remarks,” Stansbury emphasized. “You begin to understand what the disadvantages of managing a company are.”

But the timing and location of these types of interviews can be critical.

"I recommend that this interview be held a few days after the termination. And it should not be conducted by the immediate supervisor of the dismissed employee or an HR specialist who was involved in the dismissal process," says Stansbury.

When an employee leaves the company, he is also ready to discuss the current situation: what happened (or did not happen) and when. Such an analysis can save managers from further mistakes and help them behave correctly with other employees.

The director of technical support, mentioned at the very beginning of the article, said that after firing an employee who did not have writing skills, he tightened the selection process by asking applicants to complete written work.

He still believes that employees should be given maximum opportunities for improvement.

"It's a livelihood for them," he says. "It's an opportunity to pay rent and to educate their children." At the same time, he considers it necessary to do everything to secure the company. "Inaction is unacceptable, because it forces one to endure mediocrity," he stressed.

This should be clear to everyone. He noted that after the dismissal of an employee, his subordinates began to prepare written documents much better.

"The quality of the drafts that employees bring me has grown significantly," he stressed.

Apparently, it's not a secret for anyone that the path to building a strong team is not always strewn with roses. Situations when a person does not fit into the team, does not cope with his duties, are more common than they are usually talked about. The manager's reaction to such situations is a litmus test of his managerial merits. Especially during periods of economic downturn, when staff cuts seem inevitable. Or at the moment of a sharp crisis, when there is no time to think.

Recent Russian history tells us that companies that are best prepared for change have operating system assessment of the contribution of each individual to the common cause of the team. Only with the help of such a system can a company judge with certainty the effectiveness or inefficiency of its employees. And respond to events in accordance with this knowledge.

There have already been several rounds of layoffs in computer companies over the past six months. In most cases, under the pressure of circumstances, it was simply forgotten that the reduction of staff, as well as hiring, is also an art. The damage is undoubtedly significant. Nevertheless, there is always hope that the conclusions will be drawn and the next round will not take managers and employees by surprise.

How to avoid litigation

The dismissal of an employee who has not coped with his duties is a very unpleasant process, but if you add the likelihood of a long and expensive trial to this, you would not wish your enemy to get into a similar situation.

To minimize risk, labor lawyer John Rappoport of White Plains advises the golden rule: "Fire only people who can't do their jobs."

At first glance, this is simple, but Rappoport claims that he had to meet with managers who did not expel a bad employee because of a panic fear of being embroiled in proceedings over illegal dismissal. Rappoport believes that if the motive for dismissal is legitimate interest company, this decision is legally justified. Though nothing can hold former employee companies from going to court, there are ways to reduce the likelihood of legal action. Always speak frankly to the employee about the quality of his work and the reason for dismissal; Treat employees appropriately and thoroughly investigate allegations of discrimination.

According to Mark Sheekman, a lawyer at Fox and Grove, an employment law firm, a company is more at risk of getting into trouble if it is careless about the paperwork that states the rights and obligations of employees.

"If the dismissal is in doubt, then there are no documents indicating the opportunities provided to the employee," Shikman emphasized.

These entries may not be too detailed, but should contain a description of the problem and information about how the situation has changed. They must be reflected in the personal file and are of no small importance for confirming the fairness of the dismissal.

In addition, company leaders are digging a hole for themselves if they try to mitigate the shortcomings in the work of a particular employee.

"The leaders of the company often embellish the state of affairs," - said Shikman. A manager may turn a blind eye to some points to protect the feelings of an employee, but the lack of criticism can be an incentive to file a lawsuit. "An employee may claim that you cheated on him," Shikman said.

However, one should take into account not only the quality of performance of official duties, but also behavior at work.

"If the behavior of an employee harms morale, he will not work in my unit," Rappoport said. "If you have a bad social attitude, you are a bad worker."

An honest description of the working conditions also plays an important role. Unless labor laws or union contracts prevent it, company executives often refuse to add agreements to the contract stating that each party can stop work without notice. In addition, now most companies create documents that regulate the rules for working with e-mail. An employee should know if they have the right to consider their e-mail messages protected by the privacy law.

In cases where Email declared property of the company from the outset, an employee cannot plead a violation of their right to privacy if it later turns out that their messages were viewed. These dotting the i's beforehand can help protect against sabotage and retaliation from an employee who will have to be fired.

Before considering a new candidate to replace a person who was fired due to dereliction of duty, managers should review how they treated the employee before the employee was fired. If a manager is not sure that he is right, he should contact a lawyer or consult with his colleague to get his opinion.

"The biggest danger is that some personnel in the HR department get a complaint and pretend that nothing happened," Rappoport said. great amount money and most litigation occurs."

The dismissal of an employee - whether a newcomer who has not passed the probationary period, or an old-timer who has been laid off - is always an unpleasant business. Perhaps that is why there are often situations when managers, under various pretexts, avoid the unenviable function of informing the dismissed person about the decision made and entrust it to the most unexpected (and, as a rule, who do not have such authority) persons in the company (for example, the secretary).

This is partly due to the fact that the manager is having difficulty with a reasoned answer to the quite predictable counter question of the dismissed person: “For what?”. Firstly, there is little pleasant in criticizing a person “in person”, when he is already sufficiently wounded and depressed by the presented news. Secondly, it can be difficult for the leader himself to formulate clear reasons decision. Judge for yourself: it is one thing when an employee regularly skips work, is often late and violates discipline, or is even convicted of stealing corporate property, and quite another when there is only a vague feeling bad work good man.

Here is a typical situation (from private conversations with executives):

“Now I absolutely do not like the way my administrator works: a lot of small mistakes. For example, at lunchtime I say to do something for the evening, the deadline is critical, it will no longer be necessary, after a couple of hours I remind you, but in the end it was not done. In a good way, you just need to fire, but there is positive sides, which cannot be ignored. There has already been a conversation with the employee, comments are being made. Now I'm interested in how much more to endure and at what point the moment of dismissal will come. And yet - how to do it right?

What is good, what is bad?

First of all, it should be noted that when an employee does not cope with work, this is a consequence. If you focus on the possible causes, you can often find a lack of clear, measurable and written down in the company what level of performance is expected from an employee in this position, and what is considered unacceptable and inevitably leads to dismissal. Therefore, the staff works on a whim, independently setting standards for the quality of their work and always has the opportunity to excuse themselves: “Where is it written down?”, “I forgot”, “I was not told this”, and so on.