The article on loss of trust in the Labor Code of the Russian Federation is intended to protect the interests of the employer. It allows you to protect the organization’s property and prevent damage from the employee. However, it is not so easy to carry out a suspension due to loss of confidence. The person providing the work must know all the nuances of the operation and be able to apply them in practice.

Reason for dismissal of an employee

This section of the law applies to employees who issue money or interact with company property. The trust that the head of the company places in an employee is recorded in a document that is drawn up upon appointment to the position. The person will have to sign a liability agreement.

Dismissal of an employee under clause 7 of Art. 81 of the Labor Code of the Russian Federation “Loss of trust” can be carried out if a person has been convicted of the following offenses:

• bribery;
• theft;
• fraud;
• deviation from the internal rules of the enterprise regarding interaction with material assets;
• failure to comply with the rules for performing cash transactions;
• waste.

Inconsistency with the position held or possible damage to the company’s material assets can also cause a loss of trust on the part of the employer.

If an employee wanted to steal the organization’s property, but was unable or did not have time to do so, the employer has every reason to dismiss the specialist under Article 81 of the Labor Code of the Russian Federation.

The guilty act does not always occur in the previous position. If it turns out that at the previous place of work the employee was caught committing a guilty act, the employer can dismiss the employee by resorting to Article 81 of the Labor Code of the Russian Federation.

Termination of an employment contract with an employee may be based on a past court decision.

It is possible to dismiss an employee due to loss of trust only if there is evidence of the employee’s guilt. If they are missing, you will not be able to use the article of the law. It should be remembered that the employer has the right to dismiss an employee if there is a guilty act. However, he is not obliged to do this.

Employees subject to dismissal under article

Having thought about how the step-by-step procedure for dismissal is carried out due to loss of confidence in an employee, the owner of the company must remember that not every specialist can be forced to leave the company.

The article applies only to those officials who have access to the material assets of the company.

Suspension from work due to loss of confidence applies to:

• movers. who take goods from the warehouse without the owner’s knowledge and sell them externally;
• security guards. allowing unauthorized persons to enter the closed area;
• sellers. those selling alcoholic products after 22:00;
• workers. who use the issued tools to carry out repairs in their apartment;
• cashiers. cheating customers and using excess proceeds for their own purposes.

When faced with one of the above or similar cases, the employer has every right to apply the article and fire the specialist.

Who can't be fired

Which employee cannot be fired? The law prohibits the application of Article 81 of the Labor Code of the Russian Federation to personnel who do not interact with the material assets of the company. Thus, loss of trust cannot be a reason for dismissal:

• merchandiser. who does not directly work with the company’s property;
• accounting specialist. carrying out non-cash payments;
• employee. divulging details of the work plan to a competing company;
• person. being part of a group of workers who committed a guilty act, unless his personal guilt is proven.
• women. those expecting a child cannot be fired either.

Registration procedure

If the owner of the enterprise has figured out who the employer has the right to fire due to loss of trust, he can proceed to carry out the procedure. First, he will have to prove the existence of a guilty act.

Another employee of the company can take the initiative and independently inform their superiors about the event. There is no special form that needs to be filled out for the operation. To convey information to the owner of the enterprise, the specialist must write a note.

It should include:

• Full name of the person submitting the note;
• information about the event and a description of the employee’s guilty actions;
• signature and its decoding;
• date of writing.

If the commission of a guilty act was not discovered by the organization’s specialists, the procedure for recording the incident changes. When a violation is discovered by people who do not work at the enterprise or by law enforcement officers, a note is not written. Their testimony is enough.

Witness testimony can be used to confirm the offense.

If a violation was discovered during the inventory, a report is drawn up. The document records the name of the person who found the shortage and the name of the product that is missing. Based on the act, a commission is convened. It should include employees of the organization who can investigate the situation without bias. The commission is convened on the basis of an order.

The document states:

• date of;
• composition indicating the names and positions of members;
• powers of the commission;
• purpose of creation;
• the period for which the body is created.

The order must be certified by the signature of the chief official of the organization and sealed. From this moment on, the commission can begin to fulfill its duties. She must:

1. Find out the circumstances of the damage to the company.
2. Determine the amount of losses incurred.
3. Find out who is to blame for what happened.
4. Collect evidence confirming the employee’s involvement in the incident.
5. Determine the punishment that will be imposed on the guilty specialist.

The results of the commission's activities are recorded in acts, explanatory notes and certificates.

If members of the body cannot independently find out the reasons for what happened, the owner of the organization has the right to contact law enforcement agencies. However, to dismiss an employee due to loss of trust, a commission verdict is sufficient.

Explanatory note upon dismissal

If guilty actions are established that give grounds for loss of confidence in the employee, dismissal can proceed. If an employee admits his guilt and agrees to leave the company, the employer may require him to write a note with an explanation. There is no need to formally submit a request. In this case, the procedure will not take much time.

When an employee refuses to leave, the employer must provide him with a document to sign requiring him to write an explanatory note. Refusal to carry out the procedure serves as the basis for drawing up an act that will record the actions of the worker. The explanatory note must be written within 2 working days .

If the employer has not received an explanatory note, he can attach the act to the case materials and dismiss the employee. The employer's actions will be considered lawful.

Read also: When should an employee be paid upon dismissal?

However, if the owner of the organization forgets to complete part of the procedure, the employee will have the right to appeal the manager’s actions in court.

The procedure for dismissal under Article 81 p7 of the Labor Code of the Russian Federation

To simplify the procedure, the employer can use the scheme for dismissing a specialist due to loss of trust. Actions are performed in the following sequence:

Loss of trust is considered a disciplinary offense. The employer will need to draw up an appropriate order to dismiss the employee.

Penalty measures are applied no later than the receipt of evidence and the commission’s decision. There is no strict form for the order. In the paper, the employer must indicate the details of the culprit, information about the offense and the events that led to the incident.

Having drawn up an order, you must immediately begin the procedure for terminating the employment contract. The reason for termination of cooperation should be a loss of confidence in the specialist due to the actions taken.

The order is submitted to the employee for signature. If he refuses to leave confirmation of familiarization, it is necessary to draw up an act in which the fact of refusal is recorded.

The dismissal of an employee must coincide with the time of termination of the employment contract. For this reason, both documents must appear at the same time. The specialist will have to pay all the money. When applying Article 81 of the Labor Code of the Russian Federation, it will not be possible to withhold compensation for damage caused.

To expect compensation for losses, the employer must go to court.

If an employee finds out that the company has tried to illegally write off part of the amount from the due payments, he has the right to independently contact government authorities with a demand to punish the employer for illegal actions.

Home » Dismissal » Dismissal due to loss of confidence (Clause 7, Article 81 of the Labor Code of the Russian Federation)

Dismissal due to loss of confidence (clause 7 of article 81 of the Labor Code of the Russian Federation)

The article examines the features of registering the dismissal of an employee under clause 7 of Article 81 of the Labor Code of the Russian Federation - due to loss of trust. What is the procedure for dismissal under this article, what documents need to be drawn up to terminate an employment contract with an employee?

Article 81 defines the grounds for dismissal of an employee at the initiative of the employer, the seventh paragraph allows termination of employment relations with the employee due to loss of trust.

The difficulties of dismissing an employee due to loss of trust lie in the need to meet two conditions:

1. On this basis, you can dismiss an employee who directly services commodity or monetary assets. That is, a person who is responsible for the expenditure and safety of certain property. Such employees usually sign an agreement on individual or collective financial responsibility. Each employee of the organization uses company property to perform his or her job function. So a sales manager uses a computer, telephone, desk and other items owned by the enterprise. However, the manager is not responsible for the safety of these things.

1. The employee's guilt must be established. It does not matter whether the violation was committed as part of the performance of official duties or during free time.

Features of dismissal

If we are talking about committing an offense, then guilt is established by a court verdict that has entered into force. When an employee has committed a disciplinary offense. then guilt must be established during disciplinary proceedings and recorded in an order to impose disciplinary liability, a sample of which can be downloaded here.

So, for example, a simple shortage of entrusted property, revealed during an inventory of a warehouse, cannot serve as grounds for dismissal due to loss of trust. It is necessary to establish what caused this incident. Various employees of the enterprise have access to such a facility: security guards, loaders, pickers and others. In addition, theft by strangers cannot be ruled out.

In such a situation, the head of the enterprise can retain the value of the missing property as part of bringing the employee to financial responsibility. But this is not enough for dismissal due to loss of trust.

It is possible to bring an employee to disciplinary liability only within a month from the moment the violation is discovered.

The facts must be documented, because the employee can appeal the dismissal order through the court. The testimony of witnesses during the trial will be taken into account, but many important aspects of the case may simply be forgotten after a few months.

The procedure for dismissing an employee due to loss of confidence

Before making a decision, the management of the organization should obtain an explanation from the employee regarding the commission of a guilty act. If an employee refuses to comment on his actions (or inaction), then this circumstance should be recorded in the appropriate act.

Termination of the contract due to loss of trust under clause 7 of Article 81 of the Labor Code of the Russian Federation is formalized by order of the head of the organization in the T-8 form. This document must contain a link to evidence of the employee’s guilty act (audit report, memorandum, court verdict, or otherwise). The employee gets acquainted with the order against signature.

No prior notice to the employee is required.

On the day of dismissal, a full payment is made to the employee. Wages, required bonuses, and compensation for unused vacation are paid. You should also issue a work book, where a corresponding entry will be made about the termination of the employment relationship due to loss of trust under clause 7 of Article 81 of the Labor Code of the Russian Federation.

Although dismissal due to loss of trust is not related to the employee’s violation of official duties, many employers consider this circumstance as compromising. And they don’t want to hire employees with such an entry in their work book. Therefore, the management of the organization should prepare for litigation.

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Lawyers' answers (1)

Step-by-step instructions for dismissal.
clause 7.
Commitment of guilty actions by an employee directly servicing money
or commodity values, if these actions give rise to a loss of confidence in
him from the employer.
1.1. If, when committing guilty actions
the employee violated some of his work duties, then it is necessary to check
the presence of a document assigning it to the employee: an employment contract, an agreement on
full financial responsibility, job description, etc. Such
the document must be properly drawn up and signed by the employee.
The court is unlikely to give you credit for violating a legally unsecured obligation.
1.2. Documents confirming
committing guilty acts that give grounds for loss of trust (reports
notes from workers who discovered such actions, inventory reports, acts
revisions, etc.)
2. Check whether the employee belongs to the category
persons directly servicing monetary and commodity values, is it legal
classified in this category, is not pregnant, is not on
sick leave, on vacation.
3. A written explanation is taken from the employee
(explanatory note) upon the commission of actions giving grounds for
loss of trust. If after two working days the specified explanation
is not presented by the employee, then a corresponding act is drawn up (an act of refusal
give an explanation). It is advisable that the act be certified by three employees.
4. Analyze the collected documents and available
information on the basis of which questions about the employee’s guilt and loss of
trust in him or maintaining it. In case fault is established
employee, and his actions are recognized as giving grounds for loss of confidence,
The dismissal procedure is ongoing.
5. Next, an order (instruction) is issued on
termination of the employment contract.
The order is registered in the Order Register.
6. With the order (instruction) of the employer to
The employee must be informed of the termination of the employment contract against signature. IN
case when an order (instruction) to terminate an employment contract is impossible
bring to the attention of the employee or the employee refuses to familiarize himself with it under
signature, a corresponding entry is made on the order (instruction). About it
said in Art. 84.1 Labor Code of the Russian Federation. If the employee refuses to familiarize himself with the order
termination of an employment contract, it is also recommended to familiarize yourself with the act of refusal
an order, which is certified by the signatures of the originator and two employees. This
the document may be useful in court as additional evidence
employer's correctness.
7. After this, the employee is paid monetary compensation for
unused vacation, wages and other due
payments, make an entry in the work book, personal card. Record about
dismissal may look like this:
"Fired for
committing guilty actions that give rise to loss of trust on the part of
employer, paragraph 7 of Article 81 of the Labor Code of the Russian Federation.”
Or:
"Employment contract
terminated at the initiative of the employer in connection with the employee’s commission, directly
serving material assets, guilty actions giving grounds for
loss of trust on the part of the employer, paragraph 7 of part one of Article 81
Labor Code of the Russian Federation".

Read also: Is it possible to fire an employee on a day off?

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Dismissal of an employee under clause 7, part 1, art. 81 Labor Code of the Russian Federation

Why is it considered that the dismissal of an employee under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation is a complex basis for the employer to terminate an employment contract?

Dismissal in accordance with clause 7, part 1, art. 81 of the Labor Code of the Russian Federation for committing guilty actions by an employee servicing monetary or commodity valuables is provided only if these actions are grounds for loss of trust of the employer.
This is one of the most difficult and problematic grounds for terminating an employment contract with an employee. After all, only workers who directly service commodity or monetary assets (storage, reception, distribution, transportation, etc.) can be fired under this article. And only on the condition that the guilty actions committed by such employees gave the employer grounds for loss of confidence.
That is, on this basis, you can part with only unreliable financially responsible persons.
You can fire an employee who has actually committed an offense if his guilt has been proven. The manager's suspicions alone are not enough.
Guilty actions may include measuring, counting, weighing, receiving payment for services without issuing relevant documents, failure to comply with established rules for the issuance of narcotic drugs or the sale of alcoholic beverages.
In addition, the employer may lose confidence due to the employee's inappropriate or negligent attitude towards his work duties. For example, if an employee issued sums of money without proper registration, stored keys to premises with material assets in the wrong place, or violated the rules for sealing safes, warehouses or storage facilities.
You can also fire for loss of trust an employee who used property entrusted to him for direct service for personal purposes.
The employer is obliged to establish guilt. After all, it happens that the employee is not to blame for the misconduct that occurred, because the employer himself was unable to provide proper working conditions for working with inventory items (for example, he did not install an alarm or a safe). Also, the employee will not be guilty if it is proven that he acted under conditions of extreme necessity (for example, when eliminating a fire or accident).
If guilt is not established, then the employee cannot be fired on the grounds of loss of trust. Even in the event of a shortage or damage to the valuables entrusted to him.
It is also unacceptable, when identifying a shortage of valuables entrusted not to a specific employee, but to a team of financially responsible persons, to express distrust to all members of the team if the guilt of each of them has not been established.
To dismiss an employee on this basis, a court verdict that has entered into force is not required. It is enough only for the concrete fact that the employee has committed guilty actions that give the employer grounds for loss of trust. However, most likely, the employee will try to challenge his guilt and the legality of the dismissal procedure.
Dismissal under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation will be legal if several conditions are simultaneously met:
. the employee has committed a specific offense;
. the employee is engaged in servicing inventory items;
. the employee’s guilt has been established;
. the actions taken give the employer grounds for loss of trust.
The difficulty is that the labor legislation of the Russian Federation does not stipulate a specific list of documents with which an employer can confirm the legality of dismissal for loss of trust. Here, much depends on the nature of the offense and the specific circumstances.

Dismissal for loss of confidence

It is known that the employer has the right to dismiss in connection with the commission of guilty actions by employees directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in them on the part of the employer (Clause 7 of Article 81 of the Labor Code of the Russian Federation).
Termination of an employment contract on this basis is possible only in relation to employees directly servicing monetary or commodity assets. for example sellers, cashiers, forwarders, etc. Moreover, it does not matter whether an agreement on financial liability has been concluded with the employee - it is enough that the employee directly services inventory assets and his job responsibilities include working with such assets.
If an agreement on collective financial responsibility is concluded, then it is impossible to dismiss due to loss of trust of all members of the specified group without establishing the guilt of each of them.
What specific guilty actions can be grounds for dismissal? The Labor Code of the Russian Federation does not provide explanations on this matter. As practice shows, these can be any actions that may be grounds for loss of trust on the part of the administration (shortages, damage, etc.). It does not matter whether such an act was committed once or repeatedly.
The most common situation is when shortages are identified based on the results of the audit. The shortage, of course, must be documented (by official notes and reports, inventory acts, etc.), and it is these documents that will become the basis for documenting dismissal under clause 7 of Art. 81 Labor Code of the Russian Federation.
If the amount of the shortfall is large, then you should prepare to go to court with a claim for compensation by the employee for damage caused to the employer (which, by the way, is only possible within one year from the date of discovery of the damage caused). The fact of dismissal does not matter. The employer does not have the right to withhold the amount independently.
In the following cases, dismissal under clause 7 of Art. 81 Labor Code of the Russian Federation will not be legal :
— dismissal of an employee who does not directly service cash and commodity assets. Thus, it would be unlawful to dismiss an accountant who does not have access to these values;
— dismissal of an employee if his main job is not related to servicing commodity assets, and the work related to their servicing was performed by him temporarily.

In accordance with this paragraph, an employment contract can be terminated by the employer in the following cases: “the employee fails to take measures to prevent or resolve a conflict of interest to which he is a party, fails to provide or provides incomplete or unreliable information about his income, expenses, property and property-related obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and property obligations of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions provide grounds to lose confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments.”

Thus, the basis for dismissal due to loss of confidence may be one of the following disciplinary offenses:

• - failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party;
• - failure to provide or provision of incomplete or unreliable information about one’s income, expenses, property and property-related obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and property-related obligations of one’s spouse and minor children;

opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation;

Possession and (or) use of foreign financial instruments by an employee, his spouse and minor children.

A mandatory condition for dismissal under clause 7.1, part 1, art. 81 of the Labor Code of the Russian Federation is a loss of confidence in the employee.

From judicial practice

Citizen M. filed a lawsuit for reinstatement at work and asked to declare his dismissal illegal. 7.1 part 1 tbsp. 81 of the Labor Code of the Russian Federation, cancel the dismissal order No. 73-k dated June 29, 2016, recognize the dismissal entry in the work book as invalid, reinstate him as head of the legal department.

By virtue of Art. 46 (Part 1) of the Constitution of the Russian Federation, which guarantees everyone judicial protection of their rights and freedoms, and the corresponding provisions of international legal acts, in particular Art. 8 Universal Declaration of Human Rights, art. 6 (clause 1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, as well as Art. 14 (clause 1) of the International Covenant on Civil and Political Rights, the state is obliged to ensure the implementation of the right to judicial protection, which must be fair, competent, complete and effective.

The court found that M. was hired by OJSC “B.” on October 1, 2013. head of the legal department.

By order of the General Director of OJSC "B." dated June 29, 2016 No. 73-k M. dismissed under clause 7.1 part 1 art. 81 of the Labor Code of the Russian Federation for failure to take measures to prevent or resolve a conflict of interest to which he was a party, giving grounds for loss of trust on the part of the employer.

The reason for the dismissal was the act of conducting an internal investigation dated June 29, 2016, which established that in 2015 M. took part in two arbitration cases No. A57-11897/2015 on the claim of P. LLC. to OJSC "B." and No. A57- 11898/2015 according to the claim of T. LLC to OJSC "B." as a representative of LLC "P." and LLC "T.", i.e. against OJSC "B.", which is confirmed by decisions of the Arbitration Court of the Saratov Region in relevant cases.

The court came to the conclusion that it could not agree with the assessment, consequences and measure of influence taken by the defendant based on the results of the internal investigation, in the form of dismissal under clause 7.1 of part 1 of Art. 81 of the Labor Code of the Russian Federation for the following reasons.

Clause 7.1 Part 1 Art. 81 of the Labor Code of the Russian Federation was introduced by Federal Law No. 231-FZ of December 3, 2012 “On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law “On control over the compliance of expenses of persons holding public positions and other persons with their income” " Accordingly, the subjects of its application are persons holding certain positions in individual organizations, provided for by current regulatory legal acts, who are entrusted with the obligation to take measures to prevent or resolve conflicts of interest.

However, information that OJSC "B." refers to the organizations specified in Art. 275,349.1,349.2. Labor Code of the Russian Federation or in federal laws dated December 25, 2008 No. 273-FZ “On Combating Corruption”, dated December 3, 2012 No. 230-FZ “On control over the compliance of expenses of persons holding public positions and other persons with their income” , Decree of the Government of the Russian Federation dated July 22, 2013 No. 613 “On the submission by citizens applying for positions in organizations created to carry out the tasks assigned to the Government of the Russian

Federation, and employees holding positions in these organizations, there is no information on income, expenses, property and liabilities of a property nature, verification of the accuracy and completeness of the information provided and compliance by employees with requirements for official conduct,” and there is no normative legal act establishing the obligation of a person , holding the position of head of the legal department at OJSC “B.”, there is no need to take appropriate measures in the field of preventing or resolving conflicts of interest.

The conclusion was made by the court on the basis of a systematic analysis of these provisions.

The defendant's arguments that the provisions of the Labor Code of the Russian Federation do not contain a list of categories of workers with whom the employment contract can be terminated under clause 7.1 of part 1 of Art. 81 of the Labor Code of the Russian Federation, in connection with which its norms apply to all employees with whom the employer has concluded an employment contract, regardless of the purpose, type of activity and organizational and legal form, are untenable and based on incorrect interpretation and application of current labor legislation.

In this regard, the court came to the conclusion that M.’s dismissal was illegal under clause 7.1 of part 1 of Art. 81 Labor Code of the Russian Federation.

Dismissal for an employee performing educational functions committing an immoral offense incompatible with the continuation of this work (Clause 8n. 1, Article 81 of the Labor Code of the Russian Federation)

In paragraph 46 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, it is explained that when considering cases of reinstatement at work of persons whose employment contract was terminated due to their committing an immoral offense incompatible with the continuation of this work (paragraph 8, Part 1, Article 81 of the Labor Code of the Russian Federation), the courts should proceed from the fact that on this basis it is permissible to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, vocational training specialists, teachers of children's institutions, and regardless of where the immoral offense was committed: at the place of work or at home.

If guilty actions giving grounds for loss of trust, or an immoral offense are committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed from work (according to clause 7 or 8 of part 1 of article 81 of the Labor Code RF) subject to compliance with the procedure for applying disciplinary sanctions established by Art. 193 of the Code.

If guilty actions giving grounds for loss of trust, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then the employment contract with him can also be terminated under clauses 7 or 8 Part 1 Art. 81 of the Labor Code of the Russian Federation, but no later than one year from the date of discovery

violation by the employer (part 5 of article 81 of the Labor Code of the Russian Federation) (clause 47 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

From judicial practice

By order of the regional Committee for Education and Youth Affairs, F. was dismissed from his position on the grounds provided for in paragraph 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation (commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work).

The reason for the dismissal was the decision of the magistrate of the judicial district to bring F. to administrative responsibility for committing an administrative offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation (driving a car while intoxicated).

Citizen F. filed a lawsuit against the regional Committee for Education and Youth Affairs, in which he asked to recognize as illegal and cancel the Committee's order to dismiss him from the post of high school director, and to reinstate him at work.

As the plaintiff believed, the commission of an administrative offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation, cannot be a basis for dismissal under clause 8 of Part 1 of Art. 81 Labor Code of the Russian Federation.

In addition, the fact of bringing to administrative responsibility relates exclusively to the personality of the plaintiff and does not have any public manifestation, and therefore cannot be regarded as immoral.

According to labor legislation, the employer is given the opportunity to independently decide what offense is immoral, depending on the specific circumstances of the case. The plaintiff believes that any violation of moral principles and generally accepted norms of behavior in society can be considered an immoral offense. These offenses that are incompatible with the continuation of educational work may include scandals, fights, and appearance in public places under the influence of alcohol, drugs or other toxic intoxication.

When deciding whether the plaintiff belongs to persons engaged in educational activities, it is necessary to take into account the fact that, according to the Federal Law “On Education in the Russian Federation”, the head of an educational organization is responsible for the management of educational, scientific, educational work and organizational and economic activities educational organization. The plaintiff’s job responsibilities include organizing the teaching staff to achieve high efficiency of teaching and educational work, ensuring the unity of teaching and upbringing of students, using effective teaching methods and techniques, including distance learning technologies in all forms of education at school, scientific organization of work in educational process.

The Federal Law “On Education in the Russian Federation” defined the concept of “teaching worker”, including not only persons engaged in educational activities, i.e. training and education of students involved in organizing the educational process (methodologists, deans, managers, etc.). If a person leads the educational process, then this already presupposes the presence of spiritual and moral qualities. During his work, F. was repeatedly subject to disciplinary sanctions.

The panel of judges came to the following conclusion. To recognize the dismissal as legal under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation, it is necessary to establish that three circumstances occur simultaneously: the employee performs educational functions; committing an immoral offense; incompatibility of the committed offense with the continuation of work related to the performance of educational functions.

The panel of judges did not agree with the plaintiff’s position that the school director is not one of the employees performing educational functions. The fact that the plaintiff does not teach classes, i.e. is not a direct participant in the educational process, does not indicate his failure to fulfill educational functions.

The school director has direct contact with students, applies educational measures, therefore, he performs educational functions. Performing educational functions is one of the main types of its activities. The wording of clause 8, part 1, art. 81 of the Labor Code of the Russian Federation does not imply that the labor activity of an employee to whom this norm can be applied should consist only of education.

The plaintiff was brought to administrative responsibility for committing an offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation, i.e. for driving a vehicle while a driver is intoxicated.

Since the very fact of driving a car, which is a source of increased danger, by a person who is intoxicated, suggests that the driver does not show due care for the well-being of people, since alcohol intoxication reduces the driver’s reaction and, in the event of an emergency, can contribute to causing greater harm, then this act is inhumane and therefore should be regarded as immoral.

Meanwhile, the judicial panel believes that the court did not have grounds for an unambiguous conclusion that the commission of this administrative offense is incompatible with the continuation of work in the field of education.

When deciding whether plaintiff F.’s commission of an administrative offense under Part 1 of Art. 12.8 of the Code of Administrative Offenses of the Russian Federation, with the continuation of work as a director of a secondary school, it is necessary to take into account the following circumstances: the severity of the offense committed and the circumstances of its commission; whether the fact of the misconduct affected the professional activities of the plaintiff; whether the plaintiff, in connection with his commission of the specified offense, poses a potential threat to the life, health and morals of minors (school students).

When determining the severity and consequences of the offense committed, the panel of judges took into account the fact that the plaintiff was slightly intoxicated while driving, the inconsistency of outside witnesses (eyewitnesses), including minors, of his offense; lack of evidence of loss of authority of the director as a result of the offense committed, or the negative impact of this offense on the students of the school; plaintiff's remorse. The offense committed by the plaintiff was not of the nature of a demonstrative violation of the norms of public morality and was not public. The public outcry was subsequently caused by the discussion of the dismissal of the plaintiff in connection with the commission of this misconduct, and not by the misconduct itself.

The panel of judges came to the following conclusion: during the consideration of the case, it was not established that in connection with the plaintiff’s commission of an immoral offense, expressed in driving while intoxicated, F. poses a potential threat to the life, health and morals of minors and therefore cannot continue work as a director, perform educational functions.

Since F. does not pose a danger to the life, health and morals of minors (school students), the sanction applied to him in the form of dismissal does not meet the goals of the state protection of the rights of minors, which is pursued by the norm and. 8 hours 1 tbsp. 81 of the Labor Code of the Russian Federation, and is therefore disproportionate to the gravity of the offense committed. Therefore, the court's decision to refuse to satisfy the claim cannot be recognized as legal and justified and is subject to cancellation.

Dismissal in connection with the 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, its unlawful use or other damage to the property of the organization (clause 9, part 1, cm. 81 of the Labor Code of the Russian Federation)

In accordance with and. 48 resolutions of the Plenum of the Supreme Court of the Russian Federation dated 17 Martha 2004 No. 2 ships should have I mean, that termination of the employment contract under clause 9, part 1, art. 81 of the Code is permissible only in relation to the heads of the organization (branch, representative office), his deputies and the chief accountant, and provided that they made an unfounded decision, which entailed a violation of the safety of property, illegal his use or other damage to the organization's property.

When deciding whether the decision taken was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if a different decision was made. Moreover, if the defendant does not provide evidence confirming the occurrence of the adverse consequences specified in paragraph 9 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, dismissal on this basis cannot be recognized as legal.

It is also important to take into account the position of the Constitutional Court of the Russian Federation. In particular, the dismissal of the head of the organization on the basis of clause 9, part 1, art. 81 of the Labor Code of the Russian Federation is a measure of the legal responsibility of a manager for committing guilty actions. Such dismissal cannot be carried out without indicating specific facts indicating the manager’s unlawful behavior, his guilt, the presence of adverse consequences and the cause-and-effect relationship between them and the manager’s decision-making.

In addition, when dismissing the head of an organization, the employer is obliged to comply with the procedure established by law for applying this measure of responsibility.

Thus, the decision to dismiss the head of an organization is preceded by an objective assessment of the act he committed, and the validity of the dismissal can be the subject of judicial review, which, contrary to the applicant’s assertion, excludes the arbitrary application of the contested norm.

The use of evaluative concepts in the said legal provision does not indicate the uncertainty of its content, since the variety of factual circumstances makes it impossible to establish an exhaustive list of them in the law, and the use by the legislator of evaluative characteristics pursues the goal of effectively applying the norm to an unlimited number of specific legal situations (Resolution of the Constitutional Court of the Russian Federation of June 30 2011 No. 14-P; determinations of the Constitutional Court of the Russian Federation of February 21, 2008 No. 120-0-0, of March 19, 2009 No. 231-0-0 and of July 17, 2012 No. 1316-0).

So, the norm challenged by the applicant cannot be regarded as violating his constitutional rights.

From judicial practice

1. The court found that V. was dismissed from the position of manager of a branch of a commercial bank under clause 9 of part 1 of art. 81 Labor Code of the Russian Federation.

The basis for the dismissal was an act according to which V. was charged with: making decisions on issuing loans and the lack of proper subsequent control over the implementation of loan transactions, which led to direct damage to the bank; abuse of power, expressed in the illegal write-off of fuel and funds for corporate expenses for entertainment expenses using fictitious sales receipts.

Analyzing the circumstances of the case and the evidence presented by the parties, the court came to the conclusion that the bank’s branch, in particular the manager, had no grounds for refusing to pay settlement documents using loan funds.

Agreements on overdraft lending do not provide for the right of a branch to refuse to fulfill its obligations (by the parent bank), subject to the proper fulfillment of its obligations by the client.

During the trial, it was established that the decision of the credit committee of the bank's parent enterprise to close or change the overdraft limit was not officially communicated to the branch and, in particular, to V., which was confirmed by the representative of the defendant at the court hearing. The plaintiff did not have information about the provision of false information by these bank clients. Accordingly, she could not make any other decision in the current situation.

In addition, the court found that no decisions on the issuance of loans were made by the plaintiff, as stated above, this decision was made by the head bank, and V., within the framework of the concluded agreement, was its executor.

Thus, the court considers that V. was unreasonably charged with causing damage to the bank.

There was no evidence presented to the court that the allocated funds for corporate expenses and entertainment expenses were illegally written off, and therefore the court cannot consider the writing off of these funds as their unlawful use and, accordingly, causing damage to the defendant.

In resolving the dispute, the court, having assessed the evidence collected in the case, including witness testimony, proceeds from the fact that, in violation of Art. 56 Code of Civil Procedure of the Russian Federation, clause 9, part 1, art. 81 Labor Code of the Russian Federation, i. 48 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, before the application of a disciplinary sanction in the form of dismissal by the defendant, it was not revealed exactly what unlawful decisions were made by the plaintiff, their adverse consequences for the bank were not established, and specific decisions were not indicated in the order of dismissal of the plaintiff accepted by the plaintiff, resulting in a violation of the safety of property, its unlawful use or other damage to the bank’s property; the conclusions contained in the order are speculative in nature and are not sufficient evidence confirming damage to the bank by V.’s actions.

In addition, part 3 of Art. 193 of the Labor Code of the Russian Federation provides that the employer does not have the right to apply a disciplinary sanction to an employee, which includes dismissal, during the employee’s illness. The fact of V.’s illness is confirmed by a certificate of incapacity for work.

Taking into account the established circumstances of the case and the rules of law governing controversial legal relations, the court comes to the conclusion that V.’s claims to declare the bank’s order illegal and reinstate her in her previous position are subject to satisfaction.

2. Citizen A. filed a lawsuit against the municipal budgetary institution (MBU) for recognition of the dismissal as illegal, reinstatement at work, recovery of average earnings for the period of forced absence, and compensation for moral damage.

The decision to dismiss was based on the fact that the plaintiff arbitrarily assigned herself payments. At the same time, the prohibition on the manager issuing an order to assign incentive payments is not contained in either regulatory legal or local acts.

By Order No. 31-OK, Deputy Director A. was imposed a disciplinary sanction in the form of dismissal on the basis of clause 9, part 1, art. 81 Labor Code of the Russian Federation. By order No. 225/k, she was dismissed for making an unfounded decision that resulted in damage to the organization’s property.

The court concluded that the application of a disciplinary sanction to the defendant in the form of dismissal does not correspond to the gravity of the offense committed. Thus, the defendant referred to the fact that during the period of performance of her duties as director A. she committed actions that went beyond the scope of her official powers, arbitrarily deciding to increase incentive payments, signing an additional agreement with employee A. both on the part of the employee and on the part of the employer , thereby causing material damage to the MBU.

Indeed, the increase in A. incentive payments during the period of performance of duties as director of the MBU was not agreed upon with the housing and communal services department. However, according to the list of incentive payments and the procedure for their establishment in municipal institutions of the city, to which the MBU belongs, approved by the resolution of the City Administration, it is established that incentive payments, the amounts and conditions for their implementation are established by collective agreements, agreements, local regulations of municipal institutions of the city in accordance with current federal and regional legislation.

Upon dismissal under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation must state the reasons why the decision is unfounded, and also indicate the specific consequences of the decision made.

It should be borne in mind that a decision imputed as unfounded can be made by the relevant person only consciously and should be aimed at achieving a specific result, but due to its unreasonableness lead to clearly negative property consequences.

The court found that the defendant did not name such a decision and did not provide evidence of the occurrence of property damage caused to the defendant.

Taking into account the above, A. is subject to reinstatement as deputy director of the MBU.

Dismissal for a one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties(And.10 hours 1 tbsp. 81 Labor Code of the Russian Federation)

According to clause 49 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, the employer has the right to terminate the employment contract under clause 10 part 1

Art. 81 of the Labor Code of the Russian Federation with the head of the organization (branch, representative office) or his deputies, if they committed a one-time gross violation of their labor duties.

The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer.

As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization.

Based on the content of clause 10, part 1, art. 81 of the Code, heads of other structural divisions of the organization and their deputies, as well as the chief accountant of the organization, cannot be dismissed on this basis. However, an employment contract with such employees can be terminated for a one-time gross violation of their labor duties under clause 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations specified in subsection. “a” - “d” clause 6, part 1, art. 81 of the Code, or in other cases if provided for by federal laws.

From judicial practice

1. The plaintiff was neither the head of the organization nor the deputy head of the organization, in connection with which his dismissal pop. 10 hours 1 tbsp. 81 of the Labor Code of the Russian Federation is illegal.

Citizen L. was hired at a mechanical engineering college as head of the department of organization and control of training.

The director of the college, X., received memos from the deputy director for academic work and the methodologist about threats against him from L., and from the chairman of the college trade union committee, R., a statement was received about L.’s repeated gross violations of the terms of the collective agreement and internal labor regulations .

In the memo, L. did not confirm these facts of violations.

Occupying the position of head of the department of organization and control of training, L. was neither the head of the organization nor the deputy head of the organization, and therefore his dismissal under clause 10 of Part 1 of Art. 81 of the Labor Code of the Russian Federation is illegal.

Under such circumstances, the court came to the conclusion that it was necessary to reinstate the plaintiff at work.

2. The court rightly indicated, that the plaintiff is not a subject, with whom the employment contract could be terminated on the basis of clause 10, part 1, art. 81 Labor Code of the Russian Federation.

As the court of first instance established, between LLC “S.” and Gr. II. an employment contract was concluded, according to which P. was hired as a sector head in a separate division of S. LLC.

By an additional agreement to the employment contract, P. was transferred to the position of director of a separate division in Kemerovo.

By order of LLC "S." A commission was created to conduct an internal investigation into P.’s violations of established rules. During the internal investigation, it was revealed that the plaintiff exceeded his official authority, grossly violated the requirements of the rules of commodity lending to customers approved by the company and the job description, unlawfully authorizing the shipment of goods to the client LLC "F." (willfully exceeded the established limit), thereby causing significant damage to the defendant.

Considering these circumstances, the defendant regarded the plaintiff’s actions as a gross violation of labor duties. The plaintiff was subject to a disciplinary sanction in the form of dismissal under clause 10, part 1, art. 81 Labor Code of the Russian Federation.

Satisfying partially the claims and reinstating P. as director of a separate division of S. LLC. in Kemerovo, the court of first instance reasonably indicated that P. is not a subject with whom the employment contract could be terminated on the basis of clause 10 of part 1 of Art. 81 Labor Code of the Russian Federation.

The court found that, according to clause 3.10 of the Charter of LLC “S.” At the time of registration of the Charter, the company does not have branches and representative offices. The absence of branches and representative offices of the company is also confirmed by an extract from the Unified State Register of Legal Entities (USRK)L).

In this regard, the decision of the district court of October 14, 2016 in the appealed part was left unchanged, the appeal was not satisfied. See: Determination of the Constitutional Court of the Russian Federation of April 23, 2015 No. 779-0.

In accordance with subparagraph "b" of paragraph 6 of part 1 of Art. 81 Labor Code In the Russian Federation, termination of an employment contract is provided only if an employee appears at work in a state of alcohol, narcotic or other toxic intoxication.

When considering civil cases on the reinstatement of an employee whose employment contract was terminated at the initiative of the employer, in particular, when resolving a dispute about the termination of an employment contract in the Russian Federation, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissing an employee rests with the employer.

The reasons for initiating measures provided for by law to terminate an employment contract are facts and information about the consumption of alcoholic beverages, the use of narcotic or toxic substances by an employee of an organization or enterprise, an employee who was in a state of alcoholic, narcotic or other toxic intoxication during working hours at the place of performance of work duties, either on the territory of this organization, or he was located on the territory of the facility, where, on behalf of the employer, he had to perform a labor function.

In accordance with paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, the state of alcoholic or narcotic or other toxic intoxication can be confirmed by both a medical report and other types of evidence , which must be assessed accordingly by the court resolving a dispute regarding the termination of an employment contract based on subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Due to the above, the employer’s primary task is to obtain evidence that the employee is in a state of alcohol, drug or other toxic intoxication. If an employee contests dismissal due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code RF, its primary task is to challenge the relevant evidence presented by the employer to the court.

Since March 26, 2016, the procedure for conducting a medical examination for intoxication of an employee, as well as all other citizens of the Russian Federation, has been determined by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 933n “On the procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic)" and includes: a) examination by a medical specialist (paramedic); b) examination of exhaled air for the presence of alcohol; c) determination of the presence of psychoactive substances in urine; d) study of the level of psychoactive substances in urine; d) study of the level of psychoactive substances in the blood.

A medical examination of an employee who appears at work with signs of intoxication is carried out on the basis of a referral from the employer.

After the personal data of the person being examined is indicated in the Certificate, the medical examination in all cases begins with the first examination of exhaled air for the presence of alcohol, after which a medical specialist (paramedic) collects complaints, anamnesis and examination in order to identify clinical signs of intoxication, provided for in Appendix No. 2 to The procedure for conducting a medical examination for intoxication (alcohol, drugs or other toxic).

During a medical examination of an employee and in the presence of at least three clinical signs of intoxication provided for in Appendix No. 2 to the Procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic), and a negative result of the first or repeated test of exhaled air for the presence of alcohol, a biological sample is taken object (urine, blood) for referral for chemical and toxicological testing in order to determine the drugs (substances) or their metabolites (except for alcohol) that caused intoxication.

Based on the results of examinations and instrumental and laboratory tests carried out as part of the medical examination, one of the following medical opinions is issued on the condition of the person being examined at the time of the medical examination:
1) a state of intoxication has been established;
2) the state of intoxication has not been established;
3) the person being examined (the legal representative of the person being examined) refused a medical examination.

It is obvious that the examination of medical documents and other types of evidence of the state of alcoholic or narcotic or other toxic intoxication and the correct assessment of the medical report and evidence in general occupy a key place in resolving a dispute regarding the termination of an employment contract due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Our specialists will help you timely and correctly prepare for court hearings to resolve a dispute regarding the termination of an employment contract under subparagraph "b" of paragraph 6 of part 1 of Article 81 of the Labor Code Russian Federation, will conduct a detailed and competent analysis of the case materials and provide the necessary qualified assistance in drawing up the required documents for the court.

Dismissal under Article 81

Any company can at some point cease to exist. According to Article 81 of the Labor Code, the head of an organization may initiate the termination of an employment contract. However, there are some points that the employer must comply with.

Labor Code 81 article dismissal

Dismissal under Article 81 – Labor Code

Article, which is assigned number 81 in the labor code, states that the employment contract is terminated at the initiative of the employer. According to the labor code, dismissal under Article 81 can be divided into several separate cases. They can affect any employee, regardless of what position he holds. On the one hand, it seems that with the help of this article, the employer can get rid of any employee he does not like. In reality, everything may look completely different. The first paragraph of this article states that an entrepreneur can initiate the termination of an employment contract if the organization ceases its activities. Before terminating the contract, the entrepreneur must follow certain rules. First, he must notify the employee about the upcoming layoff. This must be done at least two weeks before the dismissal date. If the employee agrees, he may be fired before the dismissal date.

An entrepreneur can fire an employee who is not suitable for the position he occupies. The reason for the reduction may also be the insufficiently high level of qualifications of the employee.

Dismissal due to reduction Article 81

Dismissal due to reduction – Article 81

According to Article 81, when dismissing due to reduction, the employer must take into account the following points:

• Before an employee is dismissed, he must be offered another position or vacancy;
• The reduction may occur in accordance with the certification;
• It is better to establish qualification requirements in advance in the job description.

If the employer offers another vacancy, then it is worth considering the fact that the new position may be associated with lower qualifications. Lower wages may also be available. In rarer situations, an employee may have to move to another location. The company's management is not obliged to offer higher-paying jobs.

Paragraph 5 of the article states that an employee can be fired for repeatedly violating his work duties. If there is more than one such case, the employee may be fired in accordance with this article. At the same time, the employer must comply with certain rules. If more than a month has passed since the employee violated his labor obligations, then the employer does not have the right to punish him by dismissal. Another condition is that the employee must commit another offense no later than 12 months after the first. In order to prove an employee’s violation, the obligations must be specified in the labor instructions.

Dismissal under Article 81

Dismissal Article 81 paragraph 6

In some cases, an employer may fire an employee even if he has not committed any previous misconduct. Dismissal under Article 81, paragraph 6 may occur if the employee committed one of the following violations:

• Arrived at the place of work under the influence of alcohol or drugs;
• The employee grossly violated one or more labor safety rules;
• Absenteeism;
• Theft;
• The employee disclosed information that was of a commercial nature. The employee should have received this information during his working life.

The violation must be recorded, otherwise it cannot serve as a basis for reduction. To do this, it is necessary to draw up an appropriate act. If any misconduct has been committed, the employee must provide an explanation in writing. The employee has 2 days to do this. An employer may dismiss an employee only if the misconduct is not justifiable or the justifications are not convincing. In the event of a layoff in accordance with paragraph 6 of the article, the employee cannot count on monetary compensation. The only compensation is for days of unused vacation. Dismissal under this clause also presupposes the fact that

An employment contract may be terminated by the employer if the employee is not suitable for the position held or the work performed due to insufficient qualifications or health conditions that prevent continued work.

The inability to properly perform work duties due to health reasons must be confirmed by a medical report.

In case of termination of the employment contract under sub. "a" clause 3 art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence confirming that the employee’s health condition, in accordance with the medical report, prevented him from properly performing his job duties. If the employee properly performs his job duties, however, it turns out that he needs, in accordance with a medical report, to be provided with another job due to the fact that the work performed is contraindicated for him or is dangerous for the team of workers or the citizens he serves, by virtue of Part 2 of Art. 72 of the Code, if an employee refuses to be transferred to another available job that is not contraindicated for him due to health reasons, or if there is no relevant work in the organization, the employment contract with the employee is terminated in accordance with clause 8 of Art. 77 Labor Code of the Russian Federation.

The presence of a disability in an employee cannot in itself serve as a basis for his dismissal under subsection. "a" clause 3 art. 81 Labor Code of the Russian Federation. Dismissal in this case is permitted if there is a direct causal relationship between the employee’s disability and the quality (quantity) of the work he performs. Partial loss of ability to work is not grounds for dismissal of an employee if he properly performs his job duties and if the work performed is not contraindicated for him for health reasons and is not dangerous to others.

Upon dismissal under sub. "a" clause 3 art. 81 of the Labor Code of the Russian Federation, the employee is paid severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation).

The concept of “inconsistency” is mobile, dynamic, because the technical organization of labor, as well as the worker’s abilities, his special training, and state of health, do not remain constant. Improvements in the technical equipment of labor entail changes in the qualification and professional composition of teams. There is a need to acquire new knowledge and skills. And the reluctance or inability of individuals to master more complex types of activities or even simply adapt to new production conditions may lead to dismissal under clause. "b" clause 3 of Art. 81 Labor Code of the Russian Federation. A prerequisite for the dismissal of an employee due to inadequacy of the position held or the work performed due to insufficient qualifications is the absence of his guilt in the improper performance of job duties. Insufficient qualifications must be confirmed by certification results. However, the procedure for conducting certification of employees is not defined by the Labor Code (the procedure for creating a certification commission, its composition, certification procedure, etc. is not specified), which makes it difficult to apply this basis for terminating an employment contract. Certification is provided for by federal laws for certain categories of workers (state and municipal employees, bailiffs, rescuers, prosecutors, teachers, scientists, etc.). Certification of employees can be carried out by the employer even if it is not mandatory in accordance with federal law or other regulatory legal act, but its implementation is provided for by the local regulatory act of the organization. When conducting certification, which may serve as a basis for dismissal of an employee in accordance with subparagraph. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation, the certification commission must include a member of the commission from the corresponding elected trade union body. Dismissal of workers who are members of a trade union under sub. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected trade union body of the organization in accordance with Art. 373 Labor Code of the Russian Federation.

It should also be noted that dismissal under clause 3 of Art. 81 of the Labor Code of the Russian Federation is permissible if it is impossible to transfer an employee with his consent to another job.

An employment contract can be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

6) a single gross violation by an employee of labor duties:

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work 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 decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or submit incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments";

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) making 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, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid. - Federal Law of June 30, 2006 N 90-FZ;

13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which 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.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee 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.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On combating corruption."

• Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions

  If an employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation. In this case, the employee is provided with appropriate guarantees and compensation.

• General grounds for termination of an employment contract

  4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

• Mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer

  When making a decision to reduce the number or staff of employees of an organization, individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation, the employer is obliged to notify the elected body of the primary trade union organization in writing about this no later than two months in advance before the start of the relevant activities, and if the decision to reduce the number or staff of employees may lead to mass dismissal of workers - no later than three months before the start of the relevant activities. The criteria for mass dismissal are determined in sectoral and (or) territorial agreements.

• General procedure for registering termination of an employment contract

  If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. The employer is also not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of employment relations upon dismissal of an employee on the basis provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this...

• Limitation of deductions from wages

  upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of the Labor Code of the Russian Federation.

• Severance pay

  Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization's employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of average monthly earnings, as well as for he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

• Guarantees and compensation for employees in the event of liquidation of an organization, reduction of the number or staff of employees of the organization

  When carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of the Labor Code of the Russian Federation.