Chapter 13 of the Labor Code of the Russian Federation “Termination of an employment contract” examines the general grounds for terminating a contract between an employee and an employer. Most disputes arise in connection with the termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). Some employers do not act within the law and abuse their rights. Employees who were fired on illegal grounds turn to us for help. The reason for this is that workers do not know enough about their rights. This topic reveals some aspects of Article 81 of the Labor Code Russian Federation“Termination of an employment contract at the initiative of the employer.”

The law allows an employer to dismiss an employee on specific grounds set out in the Labor Code of the Russian Federation.

Dismissal for reasons such as:

• 1) liquidation of the organization or termination of activities individual entrepreneur(clause 1 of article 81 of the Labor Code of the Russian Federation);
• 2) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4 of Article 81 of the Labor Code of the Russian Federation);
• 3) adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property,
• 4) its unlawful use or other damage to the organization’s property (clause 9 of Article 81 of the Labor Code of the Russian Federation);
• 5) one-time gross violation by the head of the organization (branch, representative office), his deputies labor responsibilities(Clause 10 of Article 81 of the Labor Code of the Russian Federation) rarely causes controversy.

Labor conflicts arise on other grounds when an employer fires unwanted employees who do not know their rights. At first glance, the easiest way to get rid of employees is to announce a reduction in the number of employees in the organization.

In accordance with part three of Article 81 of the Labor Code, the dismissal of an employee due to a reduction in the number or staff of the organization’s employees is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower paid job). It is the employer's responsibility to offer the employee all eligible vacancies available in the local area.

It must be borne in mind that termination of an employment contract with an employee in connection with a layoff is possible provided that he did not have preemptive right to remain at work. This right belongs to:

• workers with more highly qualified and labor productivity than other employees;
• workers with two or more dependents in the family;
• persons who have no other employees in the family;
• employees who received of this employer injury or occupational disease, etc. (Article 179 of the Labor Code of the Russian Federation).

In case of layoffs, the employee must be warned personally and against receipt at least two months before the upcoming dismissal (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, as amended by December 28, 2006).

If it subsequently turns out that the employer introduced a labor unit with the same duties as those performed by the laid-off employee, the dismissal may be considered illegal.

If the dismissal is declared illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute. In addition, the employee must be paid the average salary for the entire period of forced absence or the difference in earnings for the entire period of performing lower-paid work.

If the wording of the reason for dismissal is recognized as incorrect or not in accordance with the law, the court is obliged to change it and indicate in the decision the reason and basis for dismissal in strict accordance with the wording of the Labor Code.

Dismissal under paragraph 3 of part one of Article 81 of the Code is permissible if the employee’s inadequacy for the position held or work performed due to his insufficient qualifications is confirmed by the results of certification. The employer has no right to terminate employment contract with an employee on the named basis, if certification was not carried out in relation to this employee, or certifying commission came to the conclusion that the employee is suitable for the position held or the work performed. However, if the employee was dismissed under paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation, then the employer is obliged to provide evidence indicating that the employee refused to be transferred to another job or the employer did not have the opportunity (for example, due to the lack of vacant positions or jobs ) transfer the employee, with his consent, to another job available to this employer (Part 3 of Article 81 of the Labor Code of the Russian Federation). Before dismissal, the employer is obliged to provide the employee with vacant place, which would correspond to his skills and knowledge.

Employee certification must be carried out according to all rules. The employer must have a certification protocol, which indicates the procedure and timing of its implementation, the category of employees, as well as the composition of the commission, and members of the commission must be called from outside.

IN new edition clause 3 art. 81 of the Labor Code of the Russian Federation (unlike the Labor Code) does not provide for the dismissal of an employee due to his inadequacy for the work performed due to health reasons. This is not accidental, since the Labor Code includes Article 73, which provides for the possibility of transferring an employee to another job in accordance with a medical report. Such an employee can be dismissed only if he himself refuses the transfer, or if the employer does not have the appropriate work. In addition, clause 5, part 1, article 83 of the Labor Code provides for such grounds for termination of an employment contract as recognizing the employee as completely incapable of working in accordance with a medical certificate issued in the manner established federal laws and other regulatory legal acts RF.

Clause 5 Art. 81 of the Labor Code of the Russian Federation provides for dismissal for repeated failure by an employee to fulfill work duties without good reason, if he has disciplinary action. On this basis, an employee can be dismissed only if he:

1. repeatedly, i.e. fails to perform job duties more than once,
2. has no good reason for this,
3. has an outstanding or outstanding disciplinary sanction.

For committing an offense, disciplinary sanctions may be applied in the form of a reprimand, reprimand or dismissal on appropriate grounds (Article 192 of the Labor Code of the Russian Federation).

At the same time, dismissal is a last resort and can be used if the employee already has another penalty. It is important to ensure that the previous disciplinary sanction is not removed from the employee. A disciplinary sanction is automatically lifted after a year from the date of its application, if the employee has not committed a new offense. The employer can, on his own initiative, remove the penalty early (Article 194 of the Labor Code of the Russian Federation).

To dismissal under clause 6 of Art. 81 of the Labor Code of the Russian Federation, for a one-time gross violation of labor duties by an employee, the employer resorts in most cases, and at the same time, often abuses his rights. The following are considered gross violations:

• - absenteeism;
• appearing at work in a state of alcohol, drug or other toxic intoxication;
• disclosure of secrets protected by law that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
• committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict or a judge's decision that has entered into legal force;
• violation by an employee of labor protection requirements, if this violation entailed serious consequences or knowingly created a real threat of such consequences.

In practice, dismissal for absenteeism and appearing at work while intoxicated are more common than others. Let's look at them in more detail.

The Labor Code has made changes to the definition of absenteeism, compared to the previously existing Labor Code. Now absenteeism is considered to be the absence of an employee at his workplace (and not on the territory of the enterprise, as it was before) for the entire working day (shift) or four hours in a row (and not three hours during the working day, as required by the Labor Code of the Russian Federation) without good reason .

The law provides for the possibility of dismissal for absenteeism if the employee’s absence is more than 4 hours in a row. This means that if an employee is 3 hours and 50 minutes late, he cannot be fired under this clause. It is also not allowed to sum up the time of absence over several days, or for morning and afternoon hours of being late or leaving earlier than expected. To prove that an employee was absent from his or her workplace, the employer must have a documented description of what should be considered a workplace.

If the Internal Rules labor regulations The organization does not indicate the exact start and end time of the working day, as well as the exact indication of the workplace, it will be very easy for the employee to challenge dismissal for absenteeism.

Some companies practice a verbal agreement between the employee and management to grant him time off. To avoid getting into an unpleasant situation later, all agreements must be recorded on paper, with the signatures of the parties.

An employee can be fired for absenteeism, for unauthorized use of days off and for unauthorized going on vacation (even if he wrote a statement, but did not receive permission). Upon dismissal due to at will(Article 80 of the Labor Code of the Russian Federation), the employee must work for 2 weeks. If he voluntarily decides to reduce his working time, the employer has every right to change the entry in work book from Art. 80 Labor Code of the Russian Federation, at paragraphs. and clause 6, part 1, art. 81 (truancy).

The law allows the unauthorized use of rest days only if the time of use of such days did not depend on the discretion of the employer, and the employer violated the requirements of the law and refused to provide them (for example, refusing to provide an employee who is a donor with a day of rest immediately after each day of delivery). blood and its components (part 4 of article 186 of the Labor Code of the Russian Federation)).

Situations often occur when workers refuse to go to work due to their illegal transfer to lower paid position or non-payment of wages to the employee. Art. 72.1 “Transfer to another job. Moving" and art. 72.2 “Temporary transfer to another job” of the Labor Code generally provide for transfer by mutual, written consent of the parties. If the employee refuses the transfer, the employer cannot oblige him.

In case of delay in payment of wages for a period of more than 15 days, the employee has the right, by notifying the employer in writing, to suspend work for the entire period until payment of the delayed amount (Part 2 of Article 142 of the Labor Code of the Russian Federation). If, for these reasons, an employer fires an employee for absenteeism, his actions can be appealed in court and declared illegal.

Before dismissing an employee, the employer must require a written explanation from him about the reason for his absence from work.

Only after this, management has the right to draw up a dismissal order, which must be signed by the employee, confirming that he is familiar with it, or is familiar with it, but does not agree, or refuses to sign.

Dismissal is a last resort. At the employer's discretion, disciplinary action may be imposed for absenteeism. The employer should pay attention to the fact that only one punishment is possible for one violation. If an employee is reprimanded for absenteeism, he cannot be fired.

The appearance of an employee at the workplace in a state of alcohol, drug or other toxic intoxication is an unconditional basis for his dismissal (subclause b, clause 6, article 81 of the Labor Code of the Russian Federation). The Plenum of the Supreme Court clarifies that this basis includes workers who appear drunk not only at the workplace in work time, but also on the territory of the enterprise where they work.

First of all, the employer is obliged to remove the drunk employee from work. In the event that the employee has not been suspended from work, responsibility for possible consequences performance of work duties while intoxicated falls on the employer. An employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline.

After removal from work, it is necessary to draw up a report that records the employee’s condition in the presence of independent witnesses, and preliminary explanations from the employee himself (if he is able to give them). The act is drawn up in two copies, one of which is given to the employee usually the next day. To avoid disputes, it is best to send the employee for a medical examination. The Labor Code does not indicate which doctor is authorized to give an opinion. This could be a doctor at a hospital, clinic, ambulance, or employer. An act documenting the state of intoxication must be drawn up by the immediate superior or the person responsible for allowing the employee to work. Witness testimony can be recorded in memos. Otherwise, the employee can subsequently prove that he was sick from overwork, and the employer suspended him from work illegally.

Dismissal on the grounds under consideration can be made regardless of whether disciplinary measures were previously applied to the employee or not. But since dismissal itself, according to Article 192 of the Labor Code of the Russian Federation, is also a disciplinary measure, it is necessary to comply with all deadlines and rules for imposing a disciplinary sanction. An employee can be dismissed no later than one month from the date of discovery of the misconduct (Part 3 of Article 193 of the Labor Code of the Russian Federation).

According to clause 7, part 1, article 81 of the Labor Code of the Russian Federation, only employees who directly service monetary or commodity assets can be dismissed if they have committed guilty actions that give rise to a loss of confidence in them on the part of the employer (part 1, clause 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

Such employees bear full financial responsibility on the basis of written agreements on full financial responsibility (Articles 243, 244 of the Labor Code of the Russian Federation).

A complete list of positions and work filled or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) financial responsibility is approved by the Ministry of Labor and social development RF in Resolution No. 85 of December 31, 2002.

Accountants, merchandisers, controllers, labelers and other employees are not subject to dismissal due to loss of trust, since monetary and commodity values ​​are not directly entrusted to them.

Dismissal on these grounds must be based on specific facts of the employee committing guilty actions. Moreover, the employee’s guilty actions can be expressed in receiving payment for services without the appropriate documents, in measuring, weighing, shortchanging customers, violating the rules for the sale of alcoholic beverages and dispensing drugs. medicines. If an employee is negligent in his or her job duties (leaving premises with material assets open, leaving cash registers unattended), the employee will be punished under this article.

If an employee is found to have committed theft or bribery when his actions are not related to work, he may also be fired on these grounds.

To dismiss based on loss of trust, it is required that the employee’s guilt in committing specific actions has been established. If a shortage is identified in the team, when a collective material liability, expressing no confidence in all members of the team without establishing the specific guilt of each of them is unacceptable.

The commission of an immoral offense by an employee (clause 8, part 1, article 81 of the Labor Code of the Russian Federation) can serve as grounds for dismissal only of employees performing educational functions. Such workers are teachers, university teaching staff, masters industrial training, kindergarten teachers. Persons, although working in kindergartens, boarding schools, schools, etc. educational institutions, but performing technical duties (cleaners, storekeepers and others) cannot be dismissed on this basis.

The heads of such organizations, branches, and representative offices do not fall under this article, since they labor function much broader than the education of subordinates.

Dismissal under clause 8, part 1, article 81 of the Labor Code can be applied regardless of where the employee committed an immoral offense - at work or at home. Dismissal based on unverified information is not permitted. The commission of an immoral offense must be proven.

Considering cases of persons dismissed under clause 7 of Art. 81 and according to paragraph 8 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to take into account the time that has elapsed since the commission of an immoral offense or guilty actions of the employee, his subsequent behavior and other circumstances that are important for the correct resolution of the dispute (clause 47 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N2).

Dismissal of an employee on the grounds provided for in paragraphs 7 or 8 of Part 1 of Article 81 of the Labor Code in cases where guilty actions giving grounds for loss of confidence, or an immoral offense were committed outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer (Part 5 of Article 81 of the Labor Code of the Russian Federation).

A new basis for dismissal of an employee at the initiative of the employer, compared to the Labor Code of the Russian Federation, is the submission by the employee to the employer of “forged documents or knowingly false information when concluding an employment contract” (Clause 11 of Article 81 of the Labor Code of the Russian Federation). An employment contract on this basis can be terminated with an employee who has presented a fake diploma of completion educational institution, a fake work book.

To do this, the employer must have irrefutable evidence of falsification of documents. Such evidence may be a certificate from the institute stating that the employee was not issued a diploma, or data that the employee did not actually work in the organizations that are indicated in his work record book, or an expert opinion. Based on these documents, a dismissal order is issued. As you can see, this procedure is quite long and troublesome for the organization. But if the employer decides to give the matter an official move, then the employee faces not only dismissal under paragraph 11 of Article 81 of the Labor Code of the Russian Federation, but also criminal liability for forgery, production or sale of counterfeit documents (Article 327 of the Criminal Code of the Russian Federation).

The list of grounds for termination of an employment contract at the initiative of the employer, given in Article 81 of the Labor Code of the Russian Federation, is not exhaustive. An employee may lose his job in other cases established by the Labor Code and other federal laws (clause 14, part 1, article 81 of the Labor Code).

The employer should remember the category of persons who are difficult to dismiss on general grounds, namely:

• pregnant women (Part 1 of Article 261 of the Labor Code of the Russian Federation),
• women with children under three years of age (Part 4 of Article 261 of the Labor Code of the Russian Federation),
• single mothers raising a child under 14 years of age (disabled child under 18 years of age) (Part 4 of Article 261 of the Labor Code of the Russian Federation),
• other persons raising these children without a mother (Part 4 of Article 261 of the Labor Code of the Russian Federation),
• workers under 18 years of age, termination of the contract with whom is allowed only with the consent of the state labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation).

Only upon liquidation of an organization are all employees subject to dismissal, including the above category. Employees must be notified of the upcoming dismissal personally and on receipt at least two months before the dismissal. With the written consent of the employee, the employer may terminate the employment contract with him without notice of dismissal two months in advance with simultaneous payment additional compensation in the amount of two months' average earnings.

It is not allowed to dismiss an employee at the initiative of the employer during the period of his temporary incapacity for work, as well as during the period the employee is on vacation. However, this rule does not apply to cases of complete liquidation of the enterprise.

Dismissed employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

On the day of dismissal (last day of work), the final payment is made to the employee. He is paid compensation for unused vacations, and is also issued a work book with a notice of dismissal entered into it. If an employee refuses to receive a work book in hand, a corresponding act is drawn up. On the same day, a notification is sent to the employee’s place of residence with an offer to appear for a work book or to consent to the work book being sent by mail.

If the dismissal of an employee is found illegal, the court will reinstate the employee to his previous position. And if the employee no longer wants to join labor Relations with this organization, the court obliges the employer to change the dismissal order and correct the dismissal entry in the employee’s work book to a voluntary termination of the contract.

Currently, as a rule, they end in favor of workers. And even their duration (many cases are considered for years) benefits the employee. Those illegally dismissed may end up receiving arrears of wages plus average earnings for the entire period of forced absence. In addition, many employees file claims for compensation for moral damage, which the court satisfies.

The law assigns certain rights and obligations to the employee and the employer. The main thing is to comply with obligations and not abuse your rights, and if they are violated by the other party, do not be afraid to defend your interests.

The law determines the standards for terminating the employment relationship. If an employer somehow circumvents these rules, thereby violating the rights of its employees, we are talking about illegal dismissal, which can be protested and can be reversed.

Let us clarify what exactly is considered a violation of dismissal standards from the point of view of the Labor Code of Russia. Let's consider which cases of illegal dismissal most often occur in the practice of employers. We will advise how an employee should react to such a blatant violation of his rights, what timeframes and prospects he has for this.

What does illegal dismissal mean?

Legislative documents do not contain the term “illegal dismissal,” nor do they use the word “dismissal” itself. It is usually understood as the termination of the employment relationship between two parties to the process - the employee and the employer. This termination may occur as a result of the termination of the employment contract or its interruption at the initiative of any party, and there may also be objective reasons beyond the control of either the employer or the employee.

Unlawful dismissal, in this case, such release from labor relations will be considered for which one or more of the following conditions is true:

• there are no grounds for dismissal or they are insufficient;
• The dismissal procedure was carried out in violation of the Labor Code.

NOTE! Deviations from the law are possible under any circumstances of termination of an employment relationship: you should always pay attention to the legislative norms and the procedure for registering dismissal.

Options for dismissal not according to the law

Let's consider everything possible cases when an employer accidentally or intentionally circumvents the Labor Code by releasing his employee. In this case, responsibility lies precisely with the employer as the stronger party in the labor relationship: the dismissed employee may not know his rights and the norms of the Labor Code, as well as the nuances of the registration procedure, and for the employer this is one of the main responsibilities.

There is no reason!

The employer's desire to get rid of the employee, even if the reasons for this desire are very significant, is not enough. There must be grounds for this, and not just any, but those provided for by the Labor Code, and no one has the right to expand their list without permission, since it is closed (Article 77 of the Labor Code of the Russian Federation).

IMPORTANT! In Part 2 of this article there is a clause about the possibility of other grounds, if they do not contradict the Labor Code and other federal legislative acts.

The first requirement of legality

So, first requirement of legality dismissal: the reason must be one of the list provided by the Labor Code or federal law.

Second requirement of legality

This or that reason must be truly real, and not attributed to the employee, and the proof of its reality lies with the employer. Second requirement of legality dismissals: compliance of the basis with reality, for which there is documentary evidence or evidence.

Third requirement of legality

Finally, even if the reason for dismissal is valid, the employer must ensure that the employee is truly no longer able to perform his or her duties. In other words, not every misconduct, even formally falling under the grounds for dismissal, really deserves it. The law gives the employer a choice of the degree of administrative responsibility for employees, and dismissal is only a last resort. Often, instead, it is enough to apply a disciplinary sanction - a warning or reprimand. Third requirement of legality dismissals – proportionality to the grounds.

RESULT. Unlawful dismissal due to non-compliance with the grounds occurs if:

• the basis is not provided for by the laws of the Russian Federation;
• the actual reality of the foundation has not been proven;
• the reason cannot be considered significant.

Only legal options

We list the reasons for which dismissals are permissible. And the conditions under which it becomes illegal. They are listed in Table 1.

Table 1 Legal grounds for dismissal and deviation from them

Don't break the procedure

If everything is in order with the grounds for dismissal, this does not guarantee its legality. It must be drawn up in accordance with the approved procedure, only then will it have legal force.

Following the procedure means that the employer, when terminating the employment relationship with the dismissed person, must act in a strictly defined manner prescribed by the Labor Code of the Russian Federation and other regulatory documents.

For each reason and, accordingly, article of dismissal, this procedure will be different. It is important to note whether the employer deviated greatly from it or slightly: this may be decisive in the issue of the legality of the dismissal.

Significant violations affecting the legality of dismissal

These are violations of procedure that seriously violate the requirements of the Labor Code and other legislative acts. Some examples:

• dismissal on disciplinary grounds when the procedure for bringing to justice is not followed;
• reduction if the employee was not offered existing vacancies;
• the opinion of the trade union organization is not taken into account in cases where it is important when terminating labor relations with members of the trade union organization.

All these and similar cases of gross violation of the dismissal procedure make it illegal. What can be proven in court.

Minor violations of procedure

They may not always be decisive in establishing the legality of dismissal. If the court considers a claim on the legality of dismissal on the basis of such violations, it may be guided by additional information, and the decision will not always be unambiguous. These types of violations include:

• minor failure to comply with deadlines in processing orders and paying employees;
• untimely issuance of a work book;
• absence of the employee’s signature indicating that he has read the dismissal order, etc.

Where to go if you were illegally fired

From the moment the employee ceases to be such and he has reason to believe that it is illegal, he has three months to try to restore his rights. And conflicts related to the illegality of dismissal, if they arise, must be considered within a month (p. 392 of the Labor Code of the Russian Federation). To do this, the offended employee has the right to appeal to one of three bodies, each of which has its own competence and powers:

• Federal Labor Inspectorate;
• prosecutor's office;

How can the labor inspectorate help?

If an employee has filed an application for illegal dismissal with the labor inspectorate, the labor law inspector will be required to check the circumstances outlined in it within 1 month. And the result of the inspection will have certain consequences. What the inspector can do as a result of the inspection:

• give the employer an order to eliminate violations of the Labor Code, and, as a result, the violated rights of the employee;
• bring the employer to administrative liability.

REFERENCE! The requirements may well include a mandatory requirement for the reinstatement of an unfairly dismissed employee.

The employer may appeal the received order or the assigned liability within three months.

ADVICE FOR EMPLOYEES. The labor inspectorate pays attention primarily to procedural violations, therefore, if the grounds are controversial and require interviewing witnesses and comparing evidence, contacting the labor inspectorate may be ineffective.

When to go to the prosecutor's office

The prosecutor's office has the right to verify compliance with any legislation. Concerning labor law, then its powers are almost similar to the labor inspectorate:

• establishing the fact of violations,
• issuing orders,
• bringing to responsibility.

Unlike the labor inspectorate, prosecutors are also busy with other areas of legal violations, so minimal attention will be paid to ordinary violations of rights. If the prosecutor's audit is not scary for the employer, it may also not be entirely effective.

Court - independent protection of your rights

This is the only option that allows us to put a final point on the issue of the legality of dismissal: all other authorities can only initiate an appeal here. Therefore, the majority of those illegally dismissed, in order not to miss the established monthly deadline, immediately contact this authority.

The claim must be brought to the district court regarding the location of the employer. The plaintiff as weak side exempt from state fees and other court costs.

It is more effective to seek representation of your interests from a professional lawyer.

The court has the right not only to reinstate the illegally dismissed person, but also to oblige the employer to pay all the money for forced absences, and sometimes compensation. In addition, bailiffs will ensure that this decision is compulsory.

How will the employer respond? Fines for illegal dismissal

The legal consequences provided for by law are inevitable and inevitable in the event of a court decision that has entered into force declaring the dismissal illegal.

The degree of liability depends on the nature and extent of violations committed by the employer.

1. Administrative liability threatens with a fine of up to 5 thousand rubles. or disqualification for up to three years.
2. Protecting the rights of pregnant women and mothers of young children can bring the offender under criminal liability: a fine of up to 200 thousand rubles. or in the amount of one and a half years' salary of an unfairly dismissed employee, and the employer may be assigned corrective labor for up to 15 days.

When a person works under an employment contract, he has certain rights and obligations. What rights does an employee have upon dismissal?

In Art. 77 of the Labor Code of the Russian Federation provides all the grounds for termination of labor relations. This:

• agreement of the parties. That is, the employee and employer agree that the employment relationship will terminate upon certain conditions. These conditions are reflected on paper, which is signed by both parties;
• termination of the 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 indicate a reason. But if you need to quit urgently, then the reason must be indicated;
• 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;
• the employee’s refusal to fulfill his duties due to the fact that the employer’s working conditions have changed;
• an employee’s refusal to abdicate his or her job duties due to a change in the ownership of the enterprise’s property;
• other grounds listed in Art. 77 Labor Code of the Russian Federation.

The employer is obliged to respect the rights of the employee when dismissing him for any of the above reasons. Otherwise, the employee may sue and be reinstated. This will entail the payment of wages for forced absenteeism, the imposition of a fine for non-compliance with the norms of the Labor Code of the Russian Federation, and also, possibly, payment of moral damages to the employee.

What documents does an employee sign upon dismissal?

When an employee resigns, regardless of the reason, he must sign quite a lot of documents. Least of all - upon dismissal of one's own free will. In this case, he only signs an order to terminate the employment relationship.

But there are other documents he must sign. Their full list depends on the grounds for dismissal. It could be:

• notice of liquidation of the enterprise;
• notice of staff reduction;
• severance agreement;
• notification that he has not passed the mandatory certification;
• a written offer from the employer about other vacancies;
• a written offer from the employer to move to another location;
• an act of the employee committing guilty actions or inactions that led to an injury at work or other unfortunate consequences;
• inventory act;
• order of dismissal on one of the grounds given in Art. 77 Labor Code of the Russian Federation;
• dismissal order;
• other documents that the employer must complete in order to comply with all the rules for dismissing an employee.

By signing the documents, the employee does not give his consent to the dismissal, especially if it does not occur on his initiative. The employee's signature on this or that personnel document indicates that he has become familiar with it. Such a signature does not carry any consequences. The exception is an order of dismissal.

If the employee does not agree with it, then there is no need to sign it. It is this document, signed by both parties, that is normative document for both parties on the legality of the process of terminating the employment contract. If the employee does not agree, he has the right to file an application with the court or the labor inspectorate. He also has the right to seek justice through a trade union, if such an organization exists at the enterprise.

What documents should be issued upon dismissal?

When the employee’s work activity is this place work stops due to various circumstances, he must receive certain documents. This:

• his work record. It must be properly formatted. It should contain the following entries:
  • date of admission of an employee to a specific organization;
  • the name of this organization;
  • the position for which the employee was hired;
  • details of the order to enroll him in the staff;
  • records of employee movements within the organization, if any;
  • date of dismissal;
  • reason for dismissal;
  • details of the order to terminate the employment relationship.

All these records must be supported by the signature of a personnel or other employee responsible for preparing work books. If an error “creeps” into this document, it will need to be corrected through the HR department. And this is a rather tedious procedure.

• certificate in form 2-NDFL for the last 2 years. It is necessary for:
  • future employer to know how much tax has already been paid to the budget. This is necessary to provide the employee with a standard or property deduction, if he is entitled to them;
  • registration with the employment center, to recognize a citizen as unemployed and to accrue unemployment benefits to him.
• certificate in form 4-FSS. It is necessary to calculate sick pay at a new place of work. Since sick pay depends on the employee’s length of insurance, it is in this context that such a certificate is necessary for its continuity.
• other documents at the written request of the employee. If a terminated or resigned employee needs any documents related to his or her labor activity It is with this employer that he can write a written request addressed to the manager. They have no right to refuse him! During three days upon receipt of the request, the documents must be ready. All documents are provided in the form of copies certified by the employer's seal. These can be copies:
  • employment order;
  • dismissal order;
  • salary certificates for the last 2 years;
  • cards in the T-2 form, indicating all movements this employee within the enterprise;
  • orders to change his salary in one direction or another;
  • information about all vacations taken;
  • other documents.

Does an employer have the right to refuse dismissal?

In Art. 80 of the Labor Code of the Russian Federation states that an employee has the right to resign at his own request, but by warning the employer about this in advance - at least 2 weeks in advance. However, the employer does not have the right to prevent his departure. Every person has such a constitutional right - the right to work. By preventing the dismissal of an employee if the latter has expressed his desire in writing and within the period established by law, the employer violates his right to work.

It’s another matter if the employer refuses to accept the application. Then you need:

• submit your application through the secretary. To do this, you need to prepare 2 copies of the application. On one, which remains with the employee, the secretary must put the number of the incoming document and the date of acceptance;
• send an application by registered mail with notice. When the notification arrives back to the applicant, it will indicate the date of its receipt and the signature of the person who accepted it.

In the application, the employee indicates the date from which he quits. It is from this date that he has the right not to go to work. But provided that he has evidence that the employer has been properly notified - through the secretary or by mail. The employer also does not have the right not to give the employee his work book. This is fraught with unpleasant consequences.

Employee rights upon dismissal of their own free will

Every employee has the right to quit his job on his own initiative. However, in Art. 80 of the Labor Code of the Russian Federation states that he must notify the employer in writing about his departure 2 weeks before the expected date. From the date that he indicates in the application, the employee has the right to no longer go to work specifically to perform his job duties. He may appear at the workplace only to receive a full payment and documents. But they must be issued on the last working day. The employer does not have the right to refuse to dismiss his employee or to postpone the date of termination of the employment relationship on his own initiative to another date. But at the same time, the employee must make sure that the employer is properly notified of his departure. If the employer prevents the dismissal of his employee, the latter has the right to contact the trade union or the labor inspectorate.

Employee rights upon dismissal at the initiative of the employer

In Art. 81 of the Labor Code of the Russian Federation provides the grounds on which an employer can terminate relations with its employee. This list is exhaustive and is not subject to judicial review.
An employee who is dismissed by an employer has the right to:

• payment of severance pay if an employee is fired due to liquidation of the enterprise or reduction of staff. In other cases, such benefits are not provided for in the Labor Code of the Russian Federation. But it can be spelled out in a collective agreement;
• payment of wages for hours actually worked from the beginning of the month until the date of dismissal;
• receiving compensation for all vacations that he did not have time to take in the current working year;
• obtaining all documents, including a work record book and other certificates that may be needed at a new place of employment.

Rights of an employee during a probationary period upon dismissal

The employer has the right to assign a probationary period to a newly hired employee. The employee has the right, while passing such tests, to resign at his own request. But the employer also has the right to terminate the employment relationship with such an employee. This is possible if the boss is not satisfied with the results of the new hire’s tests. In this case, any comment must be made in writing.

The employee has the right to comply with all norms of the Labor Code of the Russian Federation. If he resigns on his own, the notice period is 3 days. He also has the right to full payment for time worked and compensation for several days of unused vacation. If the initiator of dismissal is the employer, then he must also notify the employee 3 days in advance of the upcoming dismissal. The notification must be in writing. In addition, the employee has the right to know for what reason he is fired during the probationary period. That is, the employer must explain the criteria for assessing the work of this employee and why it was considered unsatisfactory.

Protecting the rights of employees upon dismissal, where to go

If an employee believes that his employer violated his rights when dismissing him, he has the right to protection. He can contact:

• to the trade union organization, if there is one at the enterprise. But this must be done until he is fired;
• to the labor inspectorate. You can write a written appeal, describing in it the essence of the violations. Based on the complaint, an investigation will be carried out, evidence of the employer’s guilt or evidence of the absence of violations will be collected. The employee will be notified of the results in writing. If violations are found, the employer will be held accountable. Application period - 1 month from the date of dismissal;
• to the prosecutor's office. You can also write a request. This can be done in parallel with filing a complaint with the labor inspectorate, or if the inspectors did not find any violations, and the employee believes that his rights were violated;
• to court. The deadline for going to court is also 1 month from the date illegal dismissal. But the downside is that the employee will have to independently collect evidence of the employer’s violation of his rights.

The right to work is guaranteed by the Constitution of the Russian Federation. If the employer violates this right, the employee may seek protection of his rights in government agency, supervising the implementation of the norms of the Labor Code of the Russian Federation. Such a body is the labor inspectorate. If the employee is not satisfied with the decision of the inspectors, he can go to court.

Often, an employer threatens to fire a negligent employee under an article, although legally the term “dismissal under an article” does not exist. Any dismissal, in principle, occurs under one or another article of the Labor Code of the Russian Federation, but some articles of the Labor Code may negatively affect the further employment of the employee. Article 81 of the Labor Code clearly defines the reasons why an employer can dismiss an employee.

Now there will be fewer of us...

Paragraph 4 of this article states that the manager, his deputies and the chief accountant can be fired when the owner of the organization changes. In this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated, everyone is subject to dismissal, this will even affect pregnant women and young mothers.

When downsizing or downsizing, there are several groups of people who have the exclusive right not to lose their jobs. These people include breadwinners and people with long, uninterrupted work experience at a given enterprise, institution, or organization.

Inconsistency...

Another reason for dismissal is specified in paragraph 3 of Art. 81 of the Labor Code: “Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.”

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor of the subject. A special order is issued regarding its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible, for example, in terms of deadlines, you can write a complaint to labor inspection and challenge the certification results in court. A final report is drawn up on the results of the certification.

Dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. It could be like vacant position or a job corresponding to the employee’s qualifications, as well as a vacant lower position or lower paid job that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses in writing all offers made to him, the employer may fire him.

Failure to comply...

An employee can also be fired for failure to comply official duties. So, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the reason for dismissal may be “Repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

comments, reprimand or dismissal for appropriate reasons.

To dismiss an employee on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation, failure to fulfill labor duties must be:

a) repeated;

b) without good reason.

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

Ivanov, late again!

Another reason for dismissal, as stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is “Single gross violation of labor duties by an employee.”

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration. The most important valid reason is sick leave. If after returning to work you do not provide sick leave, then the employer may give you absenteeism.

If you had other extenuating circumstances, they must be stated in writing. Management decides how valid your reasons are.

If you need to be absent from work, write a statement in two copies, on which your management puts its “I do not object” resolution, date and signature. The first copy is with your superiors, keep the second one with you.

It's different when you're late.. "One time gross violation Absence from the workplace without good reason for more than four hours in a row during a working day (shift) is also considered.” That is, if you are an hour late for work, you cannot be fired on this point. However, for repeated lateness, a disciplinary sanction can be imposed and subsequently dismissed under clause 5 of Art. 81, as for repeated failure by an employee to fulfill his work duties without good reason.

Theft and embezzlement

Perhaps the most indisputable reason for dismissals is contained in subparagraph D, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation “Commitment at the place of work of theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses.”

It is already clear from the text of the law that in order to dismiss an employee on this basis a court decision or an order from an authorized official is necessary, i.e. an investigation must be carried out. However, in practice, an employee may be asked not to make noise, which in various circumstances can affect both the reputation of the employee himself (even if he is not guilty of anything) and the reputation of the organization itself. And here the choice is yours.

Unsuitability

Professional incompetence is a lack of conformity professional qualities employee of the position held. In other words, if an employee cannot cope with his duties, or copes below the established average level, such an employee may be professionally unsuitable for this position. What to do if you were fired for?

Be careful!

In fact, there are many more reasons for dismissing an employee than those listed above. A complete list of grounds for dismissal is contained in Art. 81 of the Labor Code, which you need to know by heart.

The Labor Code also provides that termination of an employment contract at the initiative of the employer may occur in other cases provided for in the employment contract with the head of the organization and members of the collegial executive body of the organization. And in each case, checks must be carried out to determine the legality of your dismissal. Thus, before signing an employment contract, carefully study it so as not to get unexpected “surprises”.

What is written with a pen...

What to do if, in your opinion, there is an illegal entry in the labor record? According to Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal grounds or in violation established order dismissal, or illegal transfer to another job, the court, at the request of the employee, may make a decision to recover in favor of the employee monetary compensation for moral damage caused to him by these actions.

Moreover, if the court finds the dismissal illegal, the employee has the right to ask the court to change the wording of the grounds for dismissal to dismissal at his own request. In accordance with clause 33 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, if there is an entry in the work book about dismissal or transfer to another job that has been declared invalid, the employee, upon his written application, is issued a duplicate work book at his last place of work, into which all entries made in the work book are transferred, with the exception of the entry declared invalid.

Due to the incredibly frequent requests for help regarding dismissal issues, we have compiled the TOP 7 important rules especially for job seekers - Dismissals under the article. Information was collected during 2013-2015. so that you can confidently communicate with your employer. If we helped you, please express your gratitude in the comments at the bottom of the page. We wish you a peaceful resolution of labor issues with employers. And professional success to your HR colleagues!

We have prepared more articles for you

Dismissal of an employee is one of the current issues for the HR department, as is the hiring of employees, but this issue also has its own subtleties. The most important thing is the moment of “painless” dismissal of an employee, that is, without causing damage to both parties. But the dismissal of an employee does not always occur without consequences - sometimes an employee can sue the employer or move to a competitor and cause a lot of trouble for your company.

How to fire an employee legally and without consequences: legal aspect

There are a huge number of reasons for dismissal, and listing them all would take a large number of time. But if it is decided that an employee should be fired, you need to figure out first what ways he can be fired, based on a legal point of view:

The classic option is at your own request (clause 3 of Article 77 of the Labor Code);

Unsatisfactory results of certification (subparagraph “b” of paragraph 3 of Article 81 of the Labor Code);

Failure to comply with labor discipline (clause 5 of Article 81 of the Labor Code);

Single gross violation (subparagraph “a” of paragraph 6 of Article 81 of the Labor Code).

Now let's look at each point separately.

Dismissal at your own request

The simplest and at the same time beneficial way for both parties is to invite the employee to write a letter of resignation in his own hand (according to paragraph 3 of Article 77 of the Labor Code). In this case, you should explain to the employee that there is no bright future for him in your company, he is hindering the development of the organization and he will not be able to advance up the career ladder. If these beliefs help, write good recommendations to the resigning employee. Particularly large and developed companies may even give such an employee a bonus if he agrees to part ways on good terms.

In this case, a good attitude towards the person being dismissed is of great importance. Should not be provoked conflict situation, because a subordinate may refuse to write a statement because of principle. You need to pretend that you really care about this person's future.

The situation changes completely when an employee completely refuses to write a letter of resignation of his own free will. In this case, you will have to try to get him to do it. And remember: in any case, you should avoid using force (no need to publicly insult or threaten the employee). After all, with your threats you can ensure that all other employees will side with the person being fired, which can worsen an already difficult situation.

In such cases, a more correct approach is required. You need to be patient, and at this time carefully collect detailed incriminating evidence on the employee: for example, complaints from clients and office employees, memos. Each remark to such an employee must be accompanied by a reprimand and a written statement of the remark. When you have collected enough documentation with comments, call the employee for a private conversation, citing the available information. Now, in an accessible form, you can inform him that you have a sufficient number of grounds for dismissing an employee under the article, which in the future may deprive him of employment in a good position. Most likely, after such a conversation, the employee will write a letter of resignation of his own free will.

There is another effective way to help an employee quickly navigate writing. It is necessary to make his stay in the workplace unbearable: for example, transfer his clients and part of his powers to another employee, do not promote him wages, deprive the bonus.

Of course, all of the above methods also have disadvantages. So, a dismissed employee can turn to the tax office, the court, your competitors, or all of them at the same time, turning your existence into an impossible one.

Dismissal based on certification results

Most often, employees are dismissed due to their inability to cope with job responsibilities, that is, professional inconsistency. The complexity of this dismissal lies in the fact that such dismissal must be based on the results of certification (in accordance with paragraph “b”, paragraph 3 of Article 81 of the Labor Code of the Russian Federation). This event is carried out only in organizations that have a Regulation on Certification, with which employees are familiarized with signature.

Labor legislation does not indicate exactly how certification should be carried out and how its results are formalized. But you can also use the Regulation on Certification, which was approved on October 5, 1973 by the State Committee for Labor of the USSR and the State Committee for Science and Technology and is in force today. Referring to this provision, the manager is obliged to approve the certification schedule at his enterprise, or it is sufficient to issue a decree immediately before the certification. Of course, employees must also be familiarized with this documentation against signature.

The assessment of workers' qualifications should be carried out by a special commission, which includes people who can really assess the level professional knowledge every employee. The head of the company does not have to be a member of this commission, because an employee can contact him with a complaint about unsatisfactory certification results.

It is important to remember that the certification results must be issued in a separate order!

If the dismissed employee did not cope with the certification task, he should be given another chance and allowed to pass the certification again, so that no questions arise in the future. Having limited himself to repeated failure, you need to offer him another (less prestigious) place in your company. Of course, you should find a position that the dismissed employee will not agree to. The refusal must be documented, and after that you can safely dismiss the employee.

We shouldn’t forget about that either. that just one decision to fire an employee is not enough, it is important to have a general understanding of the work of this person. For example, if before passing the certification he coped well with his professional duties, had no written criticism from management or complaints from colleagues, then such a dismissal is easily challenged in court, and in most cases the judge takes the side of the plaintiff (that is, the former employee) .

In addition, a huge mistake made by the management of many companies is suddenly (without prior warning or legal registration) conducting certifications. This is a clear violation on the part of management, and if the employee wants to challenge his dismissal in court, the results of the certification are invalid in accordance with Article 9 of the Labor Code. It is necessary to try to comply with all formalities and act on the basis of the law.

Certification has one very significant drawback - large financial and time costs. Certification is carried out among all personnel, and members of the commission will also not agree to act on a voluntary basis.

Dismissal due to non-compliance with labor discipline

Dismissal of an employee for failure to comply with labor discipline is one of the most convenient reasons (according to clause 5 of Article 81 of the Labor Code). The most important thing in this case is the clause of the employment contract, which clearly indicates the start and end times of the working day (which must be indicated when concluding an agreement with the employee).

In addition, all lateness must be recorded on the time sheet. If an employee’s tardiness is chronic, it is necessary to create a commission and draw up a report of tardiness, and then require a written explanation from the employee (based on Article 193 of the Labor Code). If the employee refuses to write an explanatory note, a statement of refusal should be drawn up and signed by members of a special commission (it should include three disinterested witnesses - for example, a secretary, a laboratory assistant and a security guard), the immediate supervisor of the person being dismissed and an employee of the personnel department. Written comments can also be drawn up on the basis of the above-mentioned acts.

The trick is that a reprimand is not a serious enough measure, unlike a reprimand, and employees practically do not challenge them. At the same time, it is quite easy to find fault with someone being fired - he was a few minutes late and received a reprimand. When a convenient reason arises, it is necessary to issue a reprimand, after which you can safely dismiss such an employee.

It is very important to carefully prepare for dismissal - prepare memos and written comments (of which there should be a sufficient number) so that in the event of a legal dispute you have strong evidence of the employee’s irresponsible attitude towards his duties.

Dismissal due to a single gross violation

In order to consider this point, it is important to think carefully about it. What constitutes a gross violation? To do this, let's turn to Labor Code of our country (more specifically, to paragraph “a”, paragraph 6, article 81).

In accordance with the Labor Code of the Russian Federation, the following factors can be considered a single gross violation:

Appearing at the workplace under the influence of alcohol or other intoxication;

Absenteeism for a certain part of the workday without warning;

Disclosure of commercial or state secrets;

Failure to comply with safety regulations, which may result in serious consequences;

Theft, embezzlement or destruction of property in the workplace.

The most common reasons for dismissal are showing up at work while intoxicated and absenteeism for more than four hours without explanation or good reason. It is important to remember: when starting the dismissal procedure, do not forget to make sure that job description or the employee’s employment contract actually contains a clause stating that the employee is notified where his workplace, and read the instructions or agreement against signature.

The appearance of an employee at the workplace in a state of intoxication is much more difficult to dispute than absenteeism. In order to prove that an employee was drunk at the workplace, not only witnesses and their written testimony will be required, but also a medical examination. A reprimand entered into a personal file. Only having all the documentation with evidence in hand can you proceed with dismissal. Otherwise, this dismissal is easily contested in court, and most often the dismissed employee wins.

As for absenteeism and corresponding dismissal under Article 81, in this case it is possible to dismiss even for a single absence of an employee from the workplace. If an employee is absent for more than 4 hours, he should be reprimanded and require an explanatory note. If there is no significant reason for the employee’s absence, the employee should be dismissed immediately. But such options are used mainly only in critical cases.

Dismissing an employee for absenteeism requires preparation - you should have a few comments from management and at least a couple memos. This is required for possible proceedings in court - so that judges are convinced of the employee’s lack of professionalism. The experience of lawyers shows that an employee who is fired at the first opportunity usually finds understanding from the judges, and someone who has repeated comments in his personal file is unlikely to arouse pity from representatives of the law.

As for the reason for absenteeism, it should not be valid. Unexcusable reasons are everything except sudden illnesses of the employee and his relatives, fire, accident, transport failure.

Dismissal of an employee for absenteeism must be carried out within one month from the moment the misconduct was discovered (in accordance with Article 193 of the Labor Code). Vacation and illness are not included in this period.

Dismissing an employee: solving the problem peacefully

Regardless of the chosen method of dismissal, it is best to give the employee the opportunity to leave peacefully of his own free will. In any case, even if you have a large number of reasons to dismiss him under the article, it is advisable to offer him “severance pay” and good recommendations. Your main task is to avoid litigation, which can bring you a lot of losses (in terms of time and finances). So, during the trial, the employee can be reinstated in his position so that he has the opportunity to earn money during the trial. In this case, you will once again find a person on your staff who is undermining discipline in the company and ruining your existence. In addition, he can use proprietary information and transfer it to competitors.