Dismissal of an employee is not a complicated procedure if you follow all the necessary nuances during registration. Grounds for legal termination labor relations listed in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. But there is Article 278 of the Labor Code of the Russian Federation, which provides additional grounds for terminating employment relations with the head of an organization.

The Labor Code clearly provides grounds for dismissal of employees. If they are not followed, the dismissed employee may file a complaint with the labor inspectorate, the prosecutor's office or the court. Upon complaint, an audit will be initiated, during which all documents regarding dismissal will be checked. If violations are discovered, the employee will be reinstated, and the employer will be charged his wages for forced downtime, as well as a fine for non-compliance with labor legislation. Therefore, an employer cannot fire an employee without giving reasons.

Grounds for dismissing an employee

The reasons why an employment contract with an employee may be terminated are given in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. You cannot deviate from these grounds!

In Art. 77 of the Labor Code of the Russian Federation provides general grounds. These include:

• agreement of the parties. That is, the employee and employer agree that the employment relationship will terminate under certain conditions. These conditions are reflected on paper, which is signed by both parties;
• termination employment contract. The exception is when the contract has expired and the employee continues his activities. At the same time, the employer did not demand termination of the relationship;
• employee's desire. He must write a statement in which he will reflect his desire. It is not necessary to provide a reason;
• employer initiative. You cannot simply fire someone at the request of the employer! In Art. 81 of the Labor Code of the Russian Federation provides clear grounds for termination of relations by the manager. Any basis must be supported by documents;
• transfer of an employee to another employer or to another position (elected). Written consent must be obtained from the employee;
• refusal of the employee due to the fact that the employer’s working conditions have changed;
• refusal of an employee due to a change in the owner of the company’s property;
• other grounds listed in Art. 77 Labor Code of the Russian Federation.

For managers, this list is somewhat expanded. In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment relationship with a hired manager. These include:

• removal from office due to the fact that the enterprise has entered the bankruptcy stage;
• the decision to dismiss the manager was made by the founders of the enterprise, its participants or shareholders;
• non-compliance with the established ratio between wages leader and his subordinates.

There are no other grounds for termination of employment relations provided by current legislation.

Is such dismissal legal?

No! A manager cannot fire his employee without explaining to him the reasons for such an action. In Art. 81 of the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employer can terminate an employment relationship with an employee:

• liquidation of the enterprise;
• reduction in the number of employees of the enterprise or reduction of positions;
• the employee is not suitable for the position he occupies. This was revealed during personnel certification;
• the property of the enterprise has changed its owner;
• the employee repeatedly ignores his job responsibilities or has disciplinary action;
• the employee repeatedly grossly violates his job duties;
• the employee skipped work, that is, was absent from the workplace for more than 4 hours in a row or during the entire shift, and he cannot explain his absence;
• appearing at work in a state of alcohol, drug or other toxicological intoxication. This fact must be proven by conclusion medical worker;
• when gross violations by an employee are detected. These include:
  • disclosure of secret information. On this basis, you can dismiss if the employee, when hired or in the process labor activity signed a corresponding non-disclosure agreement with this employer;
  • theft of company property or material assets entrusted to the employee. He can be fired only if the court finds this employee guilty of these actions;
  • violation of labor safety requirements, resulting in injury or death.
• other guilty actions that are presented in Art. 81 of the Labor Code of the Russian Federation, and which take place at a specific enterprise.

If the employer has identified one of the conditions presented above and in Art. 81 of the Labor Code of the Russian Federation, he must record it in the presence of witnesses. This does not apply to the liquidation of an enterprise or reduction of staff, but the guilty actions of the employee must be reflected in the documents.

Dismissal without explanation can only be applied to the head of an enterprise who works under an employment contract. The founders, participants or shareholders of the company can make such a decision on general meeting and document it in the protocol.

What to do when you quit

There are managers who believe that they have the right to fire an employee without explaining the reasons. This gross violation labor rights of employees!

If it happens that an employer fires an employee without explaining the reasons, the employee should know that he can defend his violated rights. He can take the following actions:

• write an appeal addressed to the immediate employer or founder. The appeal must state a request to understand the reasons for the dismissal. All documents proving the termination of the employment relationship must be attached to the application;
• if the company has a trade union organization, and the dismissed employee is a member of it, then you need to contact them. They have a duty to protect labor rights employees, including from illegal dismissal;
• within a month from the date of receipt of the dismissal order, you must send a written appeal to the labor inspectorate. All available documents must also be attached to the complaint;
• write a complaint to the prosecutor's office, also attaching copies of documents;
• write a statement of claim to the court. This is the most effective way to protect your rights, but not the shortest. You need to be prepared for the fact that the manager will “turn inside out.” But if the court finds the dismissed employee to be right, he will be reinstated in his position and will be paid wages for forced downtime. He can also file another claim to recover moral damages from the employer. You must file a lawsuit within a month from the date of dismissal.

If the supervisory authority recognizes the illegality of dismissing an employee, then the employer and manager will face not the most pleasant consequences. These include:

• reinstatement of a dismissed employee;
• payment of legal costs;
• compensation for moral damage.

If the employer does not comply with the court order, then he may be subject to penalties under Art. 5. 24 Code of Administrative Offenses of the Russian Federation.

Dismissal from a government organization without explanation

If an employee serves in a state organization in a regular position and is not a civil servant, then the same grounds for dismissal as specified in Art. 77, 80 and 81 of the Labor Code of the Russian Federation. You can't fire him without reason!

However, civil servants cannot be fired without reason! Their dismissal is regulated by Art. 37 and art. 39 of the Law “On public service"and the norms of the Labor Code of the Russian Federation.
Additional grounds for dismissal from a government organization include:

• failure to perform duties;
• loss of trust. This reason for the dismissal of a civil servant “crosses” with the grounds specified in Art. 81 of the Labor Code of the Russian Federation - theft of property and material assets.” A public servant may lose confidence under the following circumstances:
  • did not comply with prohibitions;
  • disclosed confidential information;
  • failed to resolve a conflict of interest that arose in the workplace between employees of a lower rank;
  • did not counteract corruption;
  • provided incorrect or false information about his income and property, as well as about the income and property of his family members;
  • did not provide such information within the specified period;
  • was studying entrepreneurial activity;
  • took part in governing bodies commercial organization on a paid basis.

The procedure for dismissing a civil servant is exactly the same as for an ordinary employee. All personnel details must be observed. Otherwise, the civil servant will also be able to challenge the dismissal.

Dismissal of a director (manager) without explanation

The only one employee, who can be dismissed without explanation, is the manager or director of the enterprise who is hired.
In paragraph 2 of Art. 278 of the Labor Code of the Russian Federation states that the head of a company can be dismissed without explanation by decision of the authorized body of this enterprise or the owner of the property. Here it is also necessary to observe all the nuances of personnel registration of this procedure.

That is, the same person who hired him can fire the director or head of the company without explaining to him the reasons for such a decision. The authorized management body is, depending on the organizational and legal form of ownership of the company:

• founder;
• shareholders;
• participants.

Before terminating the employment relationship with the manager, a general meeting of the founders, shareholders or participants of the enterprise must be held. The issue of dismissing this employee is put on the agenda. A vote is taken by the meeting participants. If the decision is made by a majority vote, the employment contract with the manager is terminated.

In this case, the decision made at the general meeting must be formalized in the form of a protocol, which reflects all the issues discussed, as well as the decisions taken on them. If the founder, participant or shareholder is the only representative of the management body, then he makes the sole decision and formalizes it correctly.

The meeting must also be held in accordance with applicable regulations. All founders, as well as the head of the company, must be notified about the day and time of the meeting, as well as about the issues that will be put on the agenda. Notification occurs in writing.

The decision to terminate the powers of a manager is made along with the decision to appoint a new person to this position. All this is documented in the protocol. You also need to appoint a person who will control the receipt and transmission of documents from the previous manager, and also draw up a corresponding act.

A copy of the minutes of the meeting is given to all participants, as well as to the leader. Based on this document, an order is made, which is handed to the dismissed director on the last working day. This is the only case when a manager writes an order on his own behalf and signs it from the position of both sides of the relationship.

According to the act, the former manager transfers all documentation, as well as material assets, to his successor. This must be done in the presence of the new manager, as well as the person appointed responsible for acceptance.

On the last working day, a full financial calculation. He, just like an ordinary employee, needs to be paid wages, compensation for the vacation he did not have time to take, as well as severance pay. The latter is paid if the dismissal occurs without fault.

Now you need to notify the bank about the change of director, and the new director must submit an application to Rosreestr to make changes to the Unified State Register of Legal Entities. This must be done within 3 days after dismissal. former leader. He must also visit the bank and re-issue a bank card.

How to properly dismiss an employee in accordance with the law

There are several reasons for dismissal according to the law:

1. Evasion of labor discipline: absenteeism, appearing drunk.
2. Based on the results of certification. The basis for dismissal is the decision certification commission about inconsistency. Upon dismissal, the manager will have to offer a position with lower qualifications.
3. At the employee's initiative.
4. Ignoring labor regulations, causing serious consequences and material damage, for non-compliance with safety precautions.
5. Liquidation of an enterprise or reduction of staff.
6. For absenteeism when absent from work without a valid reason for more than 4 hours.
7. If a criminal case has been opened against the financially responsible person.
8. Loss of trust, selfish attitude when performing duties. Employees such as an accountant are not subject to dismissal, since they do not receive money or other material assets.
9. For an immoral offense. Applies to teachers and educators. Such actions include obscene language and appearing drunk. The degree of immorality is determined by the employer.
10. For disclosure trade secret, personal information of other employees, submission of false documents.

Sometimes they try to fire unsuitable employees. The legal side of the issue during registration should be carefully thought out.

The employee is protected more than the employer. For the slightest violation of the procedure, you can challenge the decision in court. You will have to pay a penalty.

There are types of dismissal for which the reasons are not specified in the law, for example, personal hostility of a boss towards a subordinate, uncivil behavior towards other members of the team. Incriminating evidence begins to accumulate, which is difficult to refute. There are more serious reasons - disclosure of trade secrets, personal information of the employee, submission of false documents. One of the reasons is violation of labor protection rules and non-compliance with safety regulations, which resulted in serious consequences for which administrative punishment is provided.

Dismissal options

Labor legislation regulates three methods of release from work:

• at the initiative of the employee himself;
• by order of the manager;
• by mutual agreement.

The stages of dismissal require mandatory conditions: the situation must be spelled out in the Labor Code of the Russian Federation, and the procedure for registration must be followed. Thus, when staffing is reduced, the employee must be notified 2 months in advance so that he can find a new place of work. If you are dismissed for failure to comply with labor discipline, you must receive an explanatory note and transfer the case to the labor dispute commission or trade union committee.

Please note: a month after the commission of an offense it is impossible to accuse and punish.

If the misconduct led to an administrative or criminal case, the offender cannot be dismissed until a court decision. He can be transferred to another place where he will not be able to commit similar violations(fraud, forgery).

How to fire an employee at your own request

This is the most common way to terminate an employment relationship. To implement this, a letter of resignation is written and the date is indicated. The employer grants the request.

There is only one difficulty - the period of compulsory service is the prescribed two weeks from the date specified in the petition.

• upon enrollment;
• moving to another place of residence;
• when transferring a military man's husband to a new duty station;
• when leaving abroad.

They must attach a certificate from the university and a transfer order to the application.

Vacationers are released without work if the resignation letter was written two weeks before leaving the vacation. Such an employee must be calculated and a work book issued within the period specified by law - on the day the order is signed.

Workers registered according to fixed-term contract or on probation, must work three days.

You can terminate the contract at any time, regardless of its duration. There are no legal grounds to interfere. The main thing is to work out the allotted time and hand over the cases.

Dismissal of an employee at the initiative of the employer

The rules are prescribed by law. This can be done when an institution is liquidated or staff is reduced. In these cases, the main thing is to notify the employee within the established two-month period. You can dismiss an employee due to redundancy if the following procedure is observed:

1. Give two months' notice.
2. Submit to the employment center information about persons subject to layoffs, indicating their positions (three months in advance).
3. Issue an order on the basis of Article 81 paragraph. Labor Code.
4. Make an entry in your work book and personal card.
5. Pay all due cash.

When liberation occurs at the request of only one party - the leader, this is not enough. You need to have reasons: documented facts of violations, explanatory notes. In their absence, dismissal may not take place.

At the initiative of the employer you can be fired for repeated violation of labor discipline, as well as failure to fulfill your job responsibilities. This is possible if it is specified in the employment contract, and the employee is familiar with them (there are signatures of him and witnesses). Be sure to attach the act of committing the offense. Not every violation of discipline is subject to dismissal. To begin with, you can give a reprimand, draw up an act, for example, if you are late.

An employee can be fired for absenteeism if they commit only one offense. The basis for this is not being at work for more than 4 hours in a row without a good reason. . The algorithm of action is as follows:

1. A misdemeanor report is drawn up.
2. Explanatory.
3. Documentary evidence of absence: certificate from the traffic police, medical institutions, court summons.

If there are no reasons or explanations, this is considered a violation of labor discipline, and on the basis of Article 81 of the Labor Code, a dismissal order is issued and an entry is made in work book and full payment. If the procedure is violated, the offending person has a chance to recover through the court and receive monetary compensation for forced absences.

Psychologists give advice on how to smooth out a conflict situation when an employer dismisses you: it is better to report a break in the relationship one on one, clearly explaining the reason. Need to find Nice words to the offending employee, to note his past achievements. If possible, help with further employment.

Civil servants may be forcibly dismissed due to concealment of income and filing a false declaration about it, as well as due to the presence of foreign deposits. The reason may be a violation of the ethics of a civil servant in dealing with citizens, ignoring their requests. Management has its own reasons for terminating an employment contract:

• abuse of power, causing material damage;
• change of company owner;
• single violation of official duties or procedures.

By agreement of the parties

An agreement between the parties is an option when the employer and employee peacefully agree to sever relations when certain conditions. You can quit at any time, you don’t have to work, but you can’t change your mind. This is determined by Article 78 of the Labor Code of the Russian Federation.

If the parties agree, the order is issued quite quickly. If the employer offers this option to terminate the contract, he may promise to provide good recommendations or pay monetary compensation. If consent is not obtained, you can proceed to tough measures and dismiss the intractable employee under the article if he already has violations of labor discipline and comments. Sometimes, when accepting an application for a job, the employer asks you to write it with an open date. If you agree, you can make changes to the employment contract.

Dismissal in different circumstances

Is it possible to fire an employee who is on vacation, on a probationary period, or under other circumstances related to his personal life?

It is prohibited to fire an employee who is on sick leave or on vacation. Even in case of staff reduction or for violation of discipline. There are exceptions. When an enterprise is liquidated, everyone is fired (including those on sick leave or vacation). In this case, he will not have to work for two weeks, but he will be required to pay the sick leave until the end. The issue of dismissing an employee can be resolved only after leaving sick leave.

Dismissal of a pregnant woman

Even if there are other reasons (disciplinary offense), it is impossible to fire a woman who is expecting a child. It is allowed if she was accepted to perform the duties of a temporarily absent employee. If the company is liquidated and it is impossible to provide another place, you have to fire. For pregnant women, the probationary period and work period are canceled. Confirmation of the fact of pregnancy is a certificate that must be submitted every three months. If the woman refuses, the ban on dismissal is lifted.

Dismissal of a single mother

Without her consent, the contract cannot be terminated until the child reaches the age of fourteen. Only in case of repeated violation of labor discipline with penalties can the contract be terminated. This also applies to women who adopted children without a spouse. If the institution is liquidated, she is also subject to dismissal.

A woman with a child under 14 years of age who is not single can be released on all grounds under the legislation of the Russian Federation.

Dismissal during probationary period

If the employer is not satisfied with the test results, the contract can be terminated without waiting for the end of this period. The employee should be notified of this in writing three days in advance, indicating the reasons for this decision. He must sign for receipt of the notification; if he refuses, an act is drawn up, and a registered letter is sent to the employee at the address of his actual residence. You can prove your inadequacy for the position held using the following documents:

• reports from the boss;
• complaints from clients, colleagues;
• act of non-compliance with production standards;
• reports from the employee himself on the implementation of the task;
• documents collected on the fact of a disciplinary violation.

Dismissal of a pensioner without his consent

There are no benefits for older people. They do not have to work the prescribed period of two weeks. The reasons for releasing pensioners are as follows:

• liquidation of the organization;
• conclusions of the certification commission about non-compliance;
• violation of norms and rules under the Labor Code of the Russian Federation;
• reorganization measures;
• misconduct, penalties;
• health condition that interferes with the performance of any functions (diagnosis data, medical report are needed).

The age of a pensioner cannot be a reason for dismissal.

He is entitled to two weeks of benefits after the order is issued.

Dismissal of a missing and deceased employee

Draws up in accordance with Article 83 Part 1 of the Labor Code of the Russian Federation. If the death did not occur during work, the reasons are determined by the internal affairs bodies. Relatives provide the death certificate to the production, and an order is issued there. Death that occurred in work time, are investigating. If it was an accident, they find those responsible and bring them to justice. If the death occurred on a business trip, and this is confirmed by the results of the investigation, compensation is paid to the family of the deceased. The grounds for dismissal are:

• death certificate;
• a court conclusion that the citizen is declared dead;
• decision of the judicial authorities to declare a person missing.

Without these documents, the order will not be issued. A request is made for a missing person law enforcement agencies, if nothing is known about him for a year, he has not been at his place of residence for five years or more. While the search is ongoing, the employee cannot be fired; his duties are temporarily performed by someone else.

Features of dismissal due to reduction

Under such circumstances, dismissal cannot be avoided. It is impossible to challenge such a reason in court (if all the rules are followed). Two months before signing the order, the employer warns and pays benefits equal to two salaries.

The Code determines the criteria by which persons are selected for redundancy. The right to stay is enjoyed by those who have dependents (children, parents), as well as those who are sole breadwinner in family. Benefits for individuals who have suffered a serious injury or occupational illness in the workplace. You can transfer the employee to a position of equal pay or accept the agreement of the parties and pay compensation. This situation is complex, often requiring the help of psychologists. A specialist can provide moral assistance, and the administration will help resolve the issue of further employment.

Consequences of illegal dismissal: what the employer may face

An employee can express his disagreement and challenge the action of management in the labor dispute commission. Management may not agree with the commission's decision. In this situation, you will have to contact the prosecutor's office or court. The prosecutor's office is obliged to check all the grounds and legality of the employee's release. If a decision is made in favor of the plaintiff, the court will help not only to recover, but also to receive monetary compensation for moral damage and absenteeism due to the fault of the administration.

The law requires the issuance of documents confirming dismissal:

• a copy of the employment contract that was drawn up upon admission;
• order to suspend its operation;
• a certificate of contributions to various funds during employment;
• certificate of period of work.

If an employee is fired illegally, the employer is obliged to hire the previously dismissed person. The employer faces punishment in the form of a fine for errors in the employment contract or its absence. A fine of up to ten thousand rubles is imposed on the director, entity- up to one hundred thousand. The fine is imposed on the company and the director at the same time. In addition, for illegal dismissal the administration is obliged to reinstate the employee and pay for forced absence. Tax authorities will also fine you and add taxes if there was no legal registration and the salary was issued in an envelope.

Under what conditions can you not fire an employee? who is not subject to dismissal, what is the preemptive right to remain at work and when the courts do not take it into account? Knowing the answers to these questions will allow you to complete the dismissal procedure while respecting the rights of both parties.

Who cannot be fired at the initiative of the employer

The Labor Code stipulates not only cases when an employer has the right to dismiss an employee, but also situations when an organization is deprived of such a right. The introduction of a list of persons whom the employer cannot dismiss at will is due to the less protected status of such workers compared to others. The best way to present them is in table form:

Don't know your rights?

Preemptive right: who cannot be fired during staff reduction

A kind of immunity from dismissal in case of staff reduction in accordance with Art. 179 Labor Codes have employees who have shown the highest labor productivity and have the most highly qualified compared to the others.

If the first condition is equal, the employer takes into account additional circumstances provided for in Part 2 of Art. 179 TK. Thus, in accordance with the norm, the following employees must be left at work in such conditions:

• with two or more dependents;
• the only workers in the family;
• who have received an occupational disease or work injury at their current place of work;
• disabled people of WWII or combat;
• in parallel with work, improving their qualifications.

• inventors (Article 35 of the USSR Law “On Inventions in the USSR” dated May 31, 1991 No. 2213-1);
• workers in their first job after military service (Article 23 of the Law “On the Status of Military Personnel” dated May 27, 1998 No. 76-FZ);
• spouses of military personnel serving in government organizations and military units (Article 10 of Law No. 76-FZ).

In addition, the employer, by virtue of Part 3 of Art. 179 of the Labor Code, may stipulate a preferential right to remain at work for other categories of workers - in a collective agreement or other act of the enterprise.

INTERESTING! As judicial practice shows, in certain situations the preemptive right may not be taken into account. In particular, the judicial panel of the Sverdlovsk Regional Court in the appeal ruling dated May 27, 2016 in case No. 33-9214/2016 indicated: if by order of the employer all available staff positions for one position are reduced, there is no basis for considering the issue of the preferential right of individual employees.

Preemptive right: which categories cannot be reduced when the number of employees is reduced

The list of persons who have a preferential right to retain employment in the event of a reduction in the number of staff, in accordance with Art. 179 of the Labor Code, coincides with the list of employees who have the same guarantees in case of staff reduction.

IMPORTANT! Dismissal as a result of a reduction in the number of employees or staff reduction without taking into account the employee's pre-emptive right is unlawful and can be appealed in court. If the employer cannot fulfill the obligation to prove the validity of the dismissal, established by paragraph 23 of the Resolution of the Plenum of the Supreme Court “On the application by the courts...” of March 17, 2004 No. 2, the courts usually come to the conclusion that the dismissal is illegal and reinstate the dismissed person.

Thus, the Supreme Court of the Altai Republic, by its ruling dated November 26, 2014 in case No. 33-955, reinstated the employee at work, since the employer did not provide evidence of compliance with the dismissal procedure under Art. 179 of the Labor Code and evidence of the existence of a preferential right of other employees over the plaintiff.

In the appeal ruling dated May 31, 2016 No. 33-3600/2016 of the KhMAO-Yugra court, dismissal without consideration of the issue of the preemptive right of employees was also recognized as unlawful.

At the same time, there is no need to analyze the preferential rights of workers if the employee used the provisions provided by Art. 180 of the Labor Code the right to terminate work early after receiving compensation. As stated in the appeal ruling of the Supreme Court of the Komi Republic dated August 26, 2013 No. 33-4492/2013, the presence of consent to early termination of work indicates the employee’s agreement with the upcoming termination of the employment relationship, which frees the employer from establishing the presence of circumstances giving the employee a preferential right to leave At work.

Additional conditions under which an employee cannot be dismissed

In addition to the list of persons whom the employer does not have the right to dismiss within a certain period, the Labor Code also names a number of additional conditions that prevent the dismissal of an employee at the initiative of the employer. All of them relate to violation of the dismissal procedure:

1. The grounds for dismissal are not relevant.
   This condition applies, in particular, to the case provided for in Part 5 of Art. 81 of the Labor Code, according to which it is impossible to dismiss an employee for guilty actions that led to loss of trust, or for an immoral act not committed in connection with work, if more than a year has passed since the employer discovered such actions.
2. Not complied with additional conditions dismissals.
   For example, according to Art. 269 ​​TK underage worker You can dismiss only after receiving consent from the supervisory authorities:
   • commissions on juvenile affairs;
   • State Labor Inspectorate.
3. Failure to notify or reduce the period of notification to an employee or trade union of a planned dismissal.
   The warning period varies from 3 months to warn the trade union about the impending mass dismissal of workers (Article 82 of the Labor Code) to 3 days to warn an employee who has shown unsatisfactory results of cooperation during the probationary period (Article 71 of the Labor Code). This basis is common to any employer and employee.
4. Failure to comply with the requirements for the content of a notice of dismissal of an employee.
   In practice, such a basis is quite fragile, since the Labor Code does not contain a single list of requirements. Separate requirements are provided for in Art. 81 and 180 of the Labor Code, The procedure for the submission of notifications by employers and customers of work (services), approved. by order of the Federal Migration Service of June 28, 2010 No. 147, and are also contained in court rulings.

Judicial practice in cases of failure to notify of dismissal

Whether or not an employee will be reinstated to his position if he presumably was not notified of the impending dismissal depends on the specific circumstances.

In practice, there are often cases when an employee asks to be reinstated at work, citing the fact that the employer did not notify him of his impending dismissal. The case materials reflect that the employee refused to sign the notice presented to him, but the personnel officer reads the notice out loud to the employee, about which a note is made on the document. The courts, having received evidence of proper notification, refuse reinstatement (see the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated 10/05/2016 in case No. 33-19651/2016, the appeal ruling of the Moscow Regional Court dated 06/01/2016 in case No. 33-13162/2016, etc. .).

On the contrary, if the case materials confirm that the notice was not sent to the employee, the court, as a rule, reinstates him at work. For example, in the resolution of the FAS ZSO dated April 12, 2011 in case No. A70-9086/2010, it is noted that, since the procedure for notifying the employee was not followed, the fixed-term employment contract has lost its urgent nature and by virtue of Art. 58 of the Labor Code becomes an agreement concluded for an indefinite period.

INTERESTING! The appeal ruling of the Krasnoyarsk Regional Court dated August 17, 2016 in case No. 33-11098/2016 notes that the employer’s failure to send a notice to the employee about the termination of a fixed-term employment contract cannot be regarded as an intention to continue the employment relationship, i.e., to make the employment contract indefinite.

Some requirements for the content of notice of dismissal

The Labor Code does not contain requirements for the details of the notification and its content, but some requirements are specified in other acts:

Let's summarize. The Labor Code regulates in detail the issue of protecting certain categories of employees from unlawful dismissal. In particular, the law defined categories of persons whom an employer can dismiss on its own initiative only in exceptional cases. These include sick employees, pregnant employees, workers on vacation, etc.

In addition, the Labor Code introduced for certain categories of workers a preferential right to keep their jobs in case of staff reduction. First of all, such privileges are given to the most useful employees, that is, those whose labor productivity and qualifications are higher than those of others.

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 payment from the place of employment. Compliance with the established rules is mandatory for both parties, otherwise controversial situations arise that require judicial review.

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

Reasons for dismissal by order of management

Termination of employment 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, inconsistency with the position held and other violations.

According to Article 81 of the Labor Code of the Russian Federation, the reasons for termination of the contract are established by law, which make it possible to settle 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 the attention of supervisory or judicial authorities.

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

• closing or . When employed by an individual entrepreneur, the possibility of such dismissal is the official termination of the employer’s activities;
• the number of employees occurs or decreases. Both procedures must be carried out in compliance with established rules and without procedural violations;
• the worker did not pass recertification, could not prove his professional suitability in the position held;
• in the presence of official penalties and disciplinary action. The period 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 used as a last resort, after several official misconduct;
• in case of a single violation of the rules, which entailed serious consequences and caused significant material damage to the owner. Dismissal as a punitive measure is applied if, as a result of illegal actions during working hours, the perpetrators suffered physical damage to health or resulted in the death of other employees. First of all they lose workplace citizens who grossly violated safety regulations;
• one-time absenteeism or absence from a position for more than half a shift without good reason. TO good reasons include a proven inability to notify about ongoing emergency circumstances and the provision of certificates and evidence of the employee’s innocence;
• recorded drunkenness or other inappropriate behavior during working hours;
• when proven in judicial procedure or after an administrative investigation into the theft of the enterprise or other workers. Until the end of the procedural actions, the administration does not have the right to dismiss an 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 carrying financial liability and who have concluded a corresponding personal agreement or signed a collective agreement;
• usage technical means or company vehicles for personal use without the consent of management;
• deprivation of trust when an employee associated with material assets is caught in a dishonest attitude to accounting or deliberately seeking selfish goals;
• discovery that false information about personal information, education or professional certifications was provided during employment.

The list of guilty acts indicates the main characteristics conflict situation. The question of how you can dismiss an employee without his desire according to the law, first of all, provides for the reasons presented. In the vast majority of cases, management’s unreasonable desire to part with an employee for no apparent reason can be challenged in court and reinstated in the same place.

In relation to the management of an enterprise, there are additional reasons for terminating employment relationships without taking into account personal initiative.

These include the following reasons:

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

For employees of federal and regional organizations, civil servants also have additional conditions for forced dismissal. This includes the provision 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 abuse of authority.

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;
• a certificate of transfers made to funds during employment;
• certificate of employment period, 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.

Compliance with the rules on the part of the employer

Legal justifications for refusing further cooperation with a citizen will be fully respected when carrying out the following mandatory conditions:

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

When staffing is reduced, the employee must be notified two months before the proposed event, which gives him the opportunity to find a new place of employment. In case of conflicts, when there is an evasion of familiarization with the order, the document is sent to the place of residence by registered mail. It is possible to draw up a report on the employee’s refusal to familiarize himself with the resolution; 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 culprit must provide an explanation for his misconduct within two shifts, after which the case is transferred to a trade union or labor dispute commission.

The offender can be assessed for a disciplinary offense after the approval and positive decision of these authorities. It should be taken into account that after a month has passed after the violation was committed and recorded, it is not possible to dismiss and impute guilt.

In case of offenses that lead to criminal or administrative prosecution, the citizen cannot be dismissed until the decision of the relevant authorities. But in this situation, related to fraud, forgery or abuse of official position, the employee is transferred to a place that does not allow him to repeat such actions.

Eligibility of dismissal by decision of management

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

If the inspector’s decision did not influence the management, then you can contact the prosecutor’s office or court. The prosecutor's office initiates an investigation at the enterprise to determine the legality of the justification for dismissing an employee without his desire. A positive court decision for the plaintiff will allow him to be restored to his lost position and receive compensation for forced absenteeism and.

How to fire an employee without his consent