Dismissal for a bad article. Dismissal at the initiative of the employer

A will is not always left after the death of a relative. The will of the testator, expressed by documents, is an infrequent occurrence. It occurs mainly in people who have numerous property and the same number of relatives.

Often the inheritance is divided according to the law, and much less often - according to the left will. Regulatory document regulated by articles 1142 - 1145 and 1148 of the Civil Code of the Russian Federation.

The order of succession is determined by the principle of closest kinship.. Heirs of the first stage without a will are the closest relatives of the deceased.

These include:

• Spouse.
• Children.
• Parents.

A clear understanding of legal principles is the foundation of the legal culture and consciousness of society in general and of every citizen in particular. The ability to apply knowledge in practice will help to avoid litigation during inheritance, as well as speed up the process of its adoption.

Who is the heir of the first stage

The legal right to the inheritance have all the persons who fell in the first place. So the law protects the rights of spouses and blood relatives of the deceased.

The definition of "spouse" includes a husband or wife who was in a registered (official) marriage. Common-law spouses can only be heirs by type of will or as a dependent of the deceased. In this case, the court will have to prove the fact of cohabitation.

Only disabled persons can become dependents. At the same time, disability “by age” occurs at the age of 55 for women and 60 for men.

The primary heirs are the parents of the deceased. It does not matter whether they lived together with the testators or separately. If the deceased was adopted, the adoptive mother and father have the same inheritance rights as biological ones.

Persons who have been deprived by court order parental rights do not have inheritance rights.

The children of the deceased also belong to the heirs of the first stage. Blood relationship (or adoption) must be documented.

In the absence of primary heirs, the property of the deceased will pass to the direct descendants of the testator. These include:

• grandchildren.
• Great-grandchildren.

They are entitled to a share of the property that was intended for their ancestor, who is the primary heir.

In such cases, the property of the testator must be divided among the descendants in equal shares. In the event that one of the relatives did not give up his part in favor of the other.

Heirs of the next order can be called only when there are no closer blood relatives.

Worth knowing: The law provides for 7 groups of relatives who have the right to inherit. If there are no heirs of the previous stage or refuse to accept the property, the right to inherit passes to the representatives of the next stage. The property of the testator is divided equally between them.

How property is divided without a will

The heirs of the first stage may be persons who are not prescribed by law as representatives of the first stage of inheritance. These include:

• Adoptive parents and adopted children of the deceased. The law equates them in rights with the primary heirs.
• dependent relatives. If a year or more before death, a person took his disabled relatives as a dependent, the dependent has the right to claim the inheritance, regardless of family ties with the deceased.

In addition, the law prescribes a rule that provides the right to inherit specific indivisible property that the heirs used together with the deceased. Such property includes furniture, household items, etc. If for this reason the heir receives a large share of the property, he must compensate the difference to other heirs with equal rights.

Basic Rules for Dividing an Inheritance

How to properly divide the remaining property among the primary heirs?

• The property acquired in a joint marriage is divided into equal parts between the spouses.
• After the death of one spouse, the first part of the joint property is not considered an inheritance.
• The second part is inherited by relatives in order of priority, it is divided into the second spouse, children and parents of the deceased.
• Acquired before marriage or donated property is divided among the heirs of the first stage in full.

Inheritance order:

• Priority heirs within the first 6 months after the death of the testator must submit an application to the notary for acceptance of the inheritance.
• In the absence of an application, it is considered that the heir has waived his rights. The property is divided among other heirs of the first or subsequent order.

The heir may not enter into inheritance rights for a good reason (absence from the country, ignorance of the death of a relative, illness, etc.). Then, in court, the period for accepting the inheritance is extended with a revision of the division.

What documents are provided when applying for inheritance

Priority heirs, when contacting a notary, must prepare a package of documents. It includes:

• Passport or other proof of identity of each claimant.
• Death certificate of testator.
• A house book or a certificate from the passport office indicating the place of registration of the testator and relatives living with him.
• Confirmation of kinship (certificate of marriage, birth, etc.).

All documents are provided in 2 copies (original and copy). The heir accepts all the assets and liabilities of the testator, i.e. property and debts of the deceased. There should be no reservations or restrictions. From the date of opening of the inheritance, the heir is considered the owner.

Summing up

Heirs of the first line without a will the closest relatives of the decedent are considered. The property is divided between them in absolutely equal shares. At the same time, other persons (in accordance with the Civil Code of the Russian Federation) have the right to inheritance, in addition to representatives of the first stage.

Since the time of Roman law, the most important legal institution that ensures the continuity of ownership over property has been the institution of inheritance.

V modern Russia There are two main ways of inheriting the property of the deceased: and on the basis of the law.

In the event that the deceased made a will, the situation with the inheritance of property is clear: the persons mentioned in the will are the heirs. However, the practice of drawing up wills is still not very common in Russia, so almost all inheritance is divided on the basis of the law.

Let us consider in more detail who has the right to claim inheritance by law, as well as what is the procedure for accepting such an inheritance.

The legislation of the Russian Federation establishes seven property. Each queue has priority over the next. This means, for example, that, if there are heirs of the first stage, only they have the right to claim the property of the deceased, while the heirs of the second stage and subsequent stages are deprived of such a right by law.

Who is the heir of the first stage?

According to the law, a very limited circle of persons is classified as heirs of the first stage, including the next of kin of the testator: spouse, children and parents.

All property of the deceased is subject to division among the heirs of the 1st stage in equal shares, except for those cases when the will establishes a different procedure for the division of property between the heirs.

Separately, it should be noted the existence of such a legal institution as hereditary transmission. Such a legal novelty in the legislation of the Russian Federation allows the descendants of the first stage of legal heirs to receive an inheritance, if they did not live to see the opening of the inheritance.

So, for example, if the son of the testator died before his death, then the children of the son have the right to inherit his share in the property. Such a norm current legislation restores justice in the process of inheritance, allowing the closest relatives of the deceased heirs to also receive their share in the movable and immovable property of the deceased.

How do spouses inherit?

The inheritance of property by a spouse is associated with certain difficulties associated with the fact that the spouses, during their life together, have formed jointly acquired property.

For example, spouses jointly purchased an apartment that was legally registered in the name of the deceased.

Based on the literal interpretation of the law, the surviving spouse, as well as other heirs of the first stage, had to claim the entire apartment, dividing it in equal shares.

However, in fact, half of the apartment already belongs to the surviving spouse by right of ownership, since the entire apartment was the common property of the spouses. Thus, only half of the apartment is subject to the actual division between the heirs.

Inheritance of property by a spouse is practically the only example of non-blood inheritance under the law.

If, in the case of blood heirs, it is sufficient to prove their consanguinity, then the marriage union is recognized only if it is officially registered by the state.

Therefore, civil spouses and other cohabitants, regardless of how long they lived together, are not heirs.

How do parents and children inherit?

Inheritance by parents and children occurs according to general procedure determined by the legislation of the Russian Federation.

In order to inherit the property of the deceased, one should apply within six months from the date of his death with an application for acceptance of the inheritance.

Parents deprived of parental rights lose the possibility of inheriting any property for their children.

Such a norm has become a kind of fuse that protects the interests of minor children and disabled parents or spouses of the testator.

The size of the mandatory share in the inheritance is half of the property that the heir can receive by law if there were no will.

So, for example, the sole heir of the deceased, who is entitled to a compulsory share, will receive half of the entire inheritance, while the other half will be divided among the people in whose favor the will was made.

Obtaining a compulsory share is a right, not an obligation, of the heir. Thus, the heir may waive the mandatory share, thus leaving the issue of inheritance at the mercy of the will.

An heir is considered unworthy, whose actions were directed against the interests of the testator, as well as an heir who made attempts to unlawfully increase his share in the inherited property.

Also, the right to receive a mandatory share in the inheritance (as well as, in general, the right to inherit) is deprived of the person who has committed the murder of the testator or inflicted bodily harm on him.

How is the inheritance divided among the heirs of the first stage?

As a general rule, all inherited property is divided among the successors of the first stage in equal shares.

This means that the value of the property intended for each of the heirs must be the same for all heirs.

However, there are certain rules governing the priority of certain successors in inheriting certain property of the decedent.

So, the heir of the first stage, who owns part of the apartment or residential building of the deceased, has reason to demand this particular share in real estate as his part of the inheritance. If there are no such persons, the heir who lives with the testator until his death has such a right.

of this Code.

The heirs of each subsequent line inherit if there are no heirs of the previous lines, that is, if there are no heirs of the previous lines, or none of them has the right to inherit, or all of them are excluded from inheritance (), or are deprived of inheritance (paragraph 1 of Article 1119), or none of them did not accept the inheritance, or all of them refused the inheritance.

Read more about the order of inheritance, and learn more about heirs by right of representation at.

It consists in dividing close and distant relatives into groups according to the degree of kinship. The closest in this case have an advantage in acquiring the desired property, while the more distant chance of this is extremely small.

There are currently eight succession lines in total. If there is no one in the first of them (or everyone died or unanimously renounced their property), it goes to representatives of the second order.

Main heirs

These include:

• parents;
• children;
• the wife of the deceased.

According to the rules, they divide among themselves all the abandoned property into equal parts. or they can agree among themselves on what items will go to each of them (Article 1142 of the Civil Code of the Russian Federation). To do this, you need to draw up an agreement that does not need to be notarized.

If all the heirs of the first stage are dead or do not want to accept the property, then after their refusal, their heirs (grandchildren and granddaughters of the deceased) can do this. It's called a law.

If the deceased has illegitimate children or descendants from a previous marriage, then they are also equated to the primary heirs and can enjoy all rights on an equal basis with other children.

Other persons in the first place

In addition to the closest relatives by blood, there is a chance for other people to get into this list (Article 1149 of the Civil Code of the Russian Federation). This happens because the law protects the rights of socially weak sections of society if they cannot defend them themselves.

Important! In rare cases, they may be deprived of part or all of their inheritance share.

adopted children

The law equates the rights of adopted children to the rights of ordinary natural children. Therefore, they can unconditionally exercise their right to inherit the property of their father or mother. However, since they lose contact with their biological parents upon adoption, they cannot inherit from each other.

If the court has established permission for communication and communication between the adopted child and his birth parents (or one of them), then the possibility of inheritance for them remains.

Dependent Relatives

They are a special category of the population, which retains an extraordinary right to receive part of the inheritance. This means that regardless of the will or line that receives the inheritance, they have their own legal share of the property.

However, this only works if the deceased had such relatives for at least a year and their disability is documented. The degree of relationship is absolutely not important.

Applicants without family ties

They are also included in the category of people who acquire their share, despite the presence of a will and. If such persons were listed as dependents of the deceased for more than a year and lived side by side with him, and their incapacity for work was proved through the court, then they are entitled to their share of the inheritance.

Rights of Interdependent Citizens

Spouses

The spouse of a deceased person is a person whose marriage is documented and recorded in the registry office. That is, people can live together for many years, have a common budget and children, but live in a civil marriage, but then they will not be able to inherit common property.

Reference! If the surviving spouse is dependent or he manages to prove in court that the property acquired during the cohabitation was common, then he can count on part of the inheritance.

To do this, you must provide checks from stores, evidence of relatives and neighbors, but this is sometimes very difficult to do.

Parents and children

Parents are legally considered heirs in the event of the death of their children. And it does not matter whether they are married by that day or divorced long ago, if they have not been deprived of parental rights. Also, adoptive parents have a full range of opportunities for inheritance in the first place.

Children will take possession of their part of the property if there are documents confirming their relationship with the deceased. Adopted children will also receive their share of the property if the adoption was official.

Mandatory Share

All these people have the right to receive their piece from the property of the deceased in any case (Article 1149 of the Civil Code of the Russian Federation). Any of them can take possession of it on any of the grounds of inheritance or on all at once.

How is property divided in the first stage?

All representatives of the first stage receive equal shares of property according to the law. They can agree on a different order of inheritance with each other (for example, not to divide the common apartment into parts, but to agree that someone will receive it entirely, someone will get a summer house, etc.).

If there is disagreement about the division, then they can draw up a special agreement, where the individual boundaries of the property of each person will be prescribed.

Also, any heir may refuse to receive his part of the inheritance, if he has such a desire. This can be done by writing an official refusal at the notary, however, it will be impersonal (you cannot refuse in favor of another relative or close person).

Actions of heirs after the death of the owner

After the death of a person, his relatives must receive a certificate of this event. It must be submitted to a notary at the place of residence of the deceased and announcing the desire to divide the existing property. This must be done by all relatives who are entitled to a share of the property.

Required documents

An interested person must prepare the following documents to start the procedure for entering into an inheritance:

After that, it is necessary, in accordance with the data in the documents, to fill out an application for inheritance. The form is provided by a notary. Then the notary checks the authenticity of documents and checks the data in them, there is a search for additional heirs. If everything is in order, a certificate of inheritance is issued.

Deadlines for the second and subsequent queues

An application must be written within six months from the date of death of the testator. Document checks can take quite a long time, but usually do not take more than six months.

After the expiration of this time, if the main heirs have not appeared, there is a search for applicants of the second stage who could receive property in descending order of kinship. For each subsequent turn, it lasts three months.

Important! There are situations when the legitimate remains in the dark about the death of the testator due to the negligence (or greed) of other relatives. He can apply for an unlimited time, there is no statute of limitations for this procedure.

That is, in ten and forty years, he will be able to go to court to review the case and get his part of the property. However, it will be difficult to do this after a large amount of time. Also, the court will have to submit a document confirming the fact that the relative could not apply earlier and learned about the death of the testator recently.

duties

There are the following fees for obtaining a certificate of inheritance:

1. 0.3% for the first stage (no more than 100,000 rubles).
2. 0.6% for other queues (no more than 1,000,000 rubles).
3. The fee is halved when applying for categories 1 and 2.

Useful video

Legal heirs:

So, the main right to the inheritance of the deceased have his primary relatives, and in extraordinary order they can get it. For this, it is necessary to submit Required documents and pay the fee. The lost heir can recover his rights to the property through the court after any amount of time has passed.

Entering into an inheritance after death without a will is a process that can cause a lot of problems. Many citizens face it in practice. Not all people during their lifetime dispose of their property and transfer it to one or another person. Such indiscretion in the future may bring some trouble to the heirs. How to get the required property? Who is entitled to it? What should every potential heir know? Having understood the established Russian legislation, citizens will be able to resolve all disputes in inheritance cases without wills.

Modes of Inheritance

Russia is a country where relatives and third parties fight for inheritance every year. That is why the features of inheritance without a will play an important role. Everyone should know about them.

In general, in Russia there are several options for transferring property by inheritance. Namely:

• through a will
• in law.

In the first case, the citizen goes to the notary. The inheritance for each person whom the owner considers worthy is allocated at the discretion of the applicant. In other words, the will must indicate to whom and what will go after death. Any person can act as heir - both relatives and strangers.

But more disputes and problems are caused by entering into an inheritance after death without a will. What features of the process will have to be taken into account?

legal heirs

For example, with whom you will have to deal in the future. This is especially true for citizens who are not very good friends with their family.

The thing is that when inheriting without a will, third parties cannot claim the property of the deceased. According to the law, the distribution of property is carried out among the relatives of the deceased. Therefore, all inheritance disputes and issues will be resolved within the family.

You also need to consider that in Russia there is a so-called inheritance queue. Citizens will claim the inheritance in the order of their priority. This is where family ties play a role. The closer the person to the deceased, the higher the chances of an inheritance.

About Queues

Entering into an inheritance after death without a will is not as difficult as it seems. But only if there are no real conflicts in the family. Otherwise, the heirs will most likely have to communicate with the court on the division of property.

As already mentioned, according to the law, the inheritance is distributed in the order of priority. The first to claim property are:

• spouses;
• children;
• parents.

If the deceased does not have a wife / husband and children, then the inheritance is first offered to the parents. Otherwise, the property is given to the offspring and spouses. And if they refuse it - to the parents of the deceased. At the same time, they are also the legal heirs of the first stage. The property is distributed in equal shares among all applicants.

Other heirs

Entering into an inheritance after death without a will allows you to receive the property of the deceased not only to parents, children and soul mates, but also to other relatives. If the person did not have the listed people (or they refused their shares), the property will be offered to other close blood relatives.

The second line of heirs includes:

• grandparents;
• sisters (relatives);
• brothers.

And these relatives are not? In this case, the property is offered to aunts, uncles, great-grandparents with great-grandmothers, cousins, grandfathers and grandmothers, again, aunts and uncles, nephews. Only after them can claim the inheritance:

• stepdaughters;
• stepsons;
• stepmothers;
• stepfathers.

Did the citizen have any dependents? In this case, these people can also receive their share of the inheritance, but last, after all the listed relatives. In practice, dependents rarely act as legal heirs.

Where to issue

Where do they inherit? In Russia, these issues are dealt with by a notary. The inheritance is made out only in his presence.

You can contact both the state authorized person and the private one. The main thing is that it is possible to receive your share of the inheritance (both by will and without it) only from notaries. How exactly to proceed will be described below.

Timing

It is important to pay attention to the prescription of applications for inheritance. The deadlines set by the state allow only for a certain time to declare their rights. Otherwise, it will not be possible to act as an heir.

6 months are given to make a decision regarding the inheritance of property. This period can be restored, but only if the citizen can prove that he did not apply to the notary earlier for good reasons.

At the appointed time, you will have to write consent or refusal to accept the inheritance. You can do otherwise - take actions that clearly indicate the acceptance of property. For example, start servicing the inheritance, maintain it and protect it. This alignment is not very common.

Procedure

How exactly does inheritance take place? It will help not to get confused in actions step-by-step instruction for heirs. In general, the operation is not much different from receiving property as an inheritance by will.

In order to inherit property, you must:

1. Collect some documents needed by the heir. They will be discussed in more detail later.
2. Contact a notary public with consent / refusal to enter into an inheritance.
3. Obtain a certificate from an authorized person indicating the refusal or acceptance of property.
4. If a person has agreed to be an heir, you can go to Rosreestr and register your rights.

Does a citizen not want to be an heir? Then, after writing the refusal, you will need to inform close relatives about your decision. And already they will have to apply to the notary, following the instructions.

About Documents

A rather important nuance is the preparation of documents for receiving an inheritance. Father, mother or any other relative - it is not so important. The main thing is that the relationship with the citizen will have to be confirmed. This is the main problem facing people. Especially when it comes to cousins.

Among the documents required for are:

• death certificate of the owner;
• documents confirming the relationship with the deceased (birth certificate, marriage certificate, and so on);
• extracts from the house book of the owner of the property;
• consent to accept the inheritance;
• refusals of previous heirs from property;
• certificates from BTI and ZhEK (for inheritance of apartments and houses);
• real estate cadastral passports;
• certificates of ownership of the deceased on the property.

As a rule, if we are talking about the registration of an inheritance according to the law among the heirs of the first stage, then there are no problems with the preparation of papers. Therefore, the only problem that citizens may face is the division of property.

Shares of husband and wife

Special attention should be paid to the shares of the spouses in the inheritance of property. The husband / wife of the deceased is the first heir in turn. They are allocated shares according to special principles.

Which one exactly? First, the spouse receives an inheritance from joint property, then from premarital property. Assume that an inheritance is distributed over a house. The deceased had a wife and 1 child. Then the property will be divided as follows - 1/2 of the house is given to the spouse before the issuance of the inheritance. And the remaining half is divided into a child and a wife in equal shares. So, the spouse will receive 3/4 of the house.

Registration of rights

Suppose that a citizen has decided to enter into an inheritance by law. He turned to the notary, showed him the necessary package of papers and received a certificate indicating the acceptance of the property. What's next?

Now, as already mentioned, you need to register your rights. If we are talking about real estate (which is most common in practice), you will have to contact Rosreestr or the registration chamber. The heir must bring with him:

• death certificate of the previous owner;
• documents indicating kinship with the testator;
• certificates of ownership of property (in the name of the deceased);
• a certificate from a notary showing consent to accept the inheritance;
• cadastral passport;
• application for changes in real estate documents.

In exchange for these papers, the applicant will be issued an extract indicating the acceptance of the request. After 5-10 days it will be possible to pick up new documents. It should also be noted that not only property is inherited, but also obligations. For example, debts.

From now on, it is clear how the entry into the inheritance without a will takes place. In general, this operation is not much different from receiving an inheritance by will. With some preparation, citizens will be able to get their share of the property without any problems.

Aida Ibragimova, head personnel department KSK group

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.

In almost all organizations, there are employees who do not cope well with their duties: they are often late, do not meet the deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss's verbal remarks do not work, it is necessary to apply disciplinary sanctions: a remark, a reprimand, an extreme measure - dismissal.

In Art. 81 Labor Code The Russian Federation indicates the reasons why the contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of their labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be dismissed for a systematic violation of labor duties, what conditions are important to take into account and how to competently draw up a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misdemeanors for which you can be fired under the article

Dismissal under the article is possible if the employee performs actions that are prohibited by the employment contract, job description, local regulation, employer's order, labor law and other regulatory legal acts containing provisions labor law, or vice versa, if the employee does not perform the actions provided for by these documents.

Paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts Russian Federation of the Labor Code of the Russian Federation" such violations include:

The absence of an employee good reasons at work or workplace;
- Refusal of the employee without good reason to perform labor duties in connection with a change in the established order of labor standards, since by virtue of the employment contract the employee is obliged to perform the labor function determined by the employment contract, to comply with the internal labor regulations in force in the organization;
- Refusal or evasion without good reason from medical examination of workers of certain professions, as well as the refusal of an employee to pass in work time special training and examinations in occupational health, safety and operating rules, if this is prerequisite permission to work.

This list is given in the resolution of the Plenum of the Armed Forces of the Russian Federation and, of course, is not exhaustive. Such violations include any non-performance or improper performance by an employee without good reason of their labor duties. In case of dismissal for repeated non-fulfillment of labor duties, the employer must have a clear position and irrefutable evidence of the employee's guilt. The obligation to provide evidence of the legality and validity of the application of a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, is assigned to the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631 / 2015).

Conditions required for dismissal

Prior to the application of a disciplinary sanction in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. The requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, was familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often complaints are received from clients that their employees do not comply official duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation in line with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The presence of an outstanding disciplinary sanction from the employee

A disciplinary sanction or remark must not be withdrawn ahead of schedule and its validity period must not expire (one year from the date of issuance of the order to apply the sanction). A disciplinary sanction can be issued as a remark or as a reprimand. For dismissal, one outstanding disciplinary sanction is enough, for the second one can already be dismissed. If an employee has several disciplinary actions, then this will strengthen the position of the employer, as it indicates that the employee was given a chance to correct. In this case, dismissal is an extreme measure, because previous disciplinary sanctions on the employee did not work.

3. The severity of the misconduct and the circumstances of its commission

In accordance with paragraph 53 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”, in the event of a dispute, the employer will need to provide evidence indicating that:

- the employee has committed a disciplinary offense;

- when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed were taken into account (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee, his attitude to work.

This means that the offense must be proportionate to the punishment. It is impossible to apply a disciplinary sanction in the form of dismissal for an employee being late for 15 minutes if there were no complaints about the work of the employee earlier. It is also forbidden to apply several disciplinary sanctions for the same act. For example, it is impossible to reprimand an employee for one delay and fire him for the same. The behavior of the employer will be unlawful if he “accumulates” the employee’s lateness and on the same day announces a reprimand and dismisses the employee.

4. Terms of application of a disciplinary sanction

A disciplinary sanction may be applied within one month from the day the misconduct was discovered and six months from the day it was committed (according to the results of an audit of financial and economic activities or an audit, no later than two years from the date the disciplinary misconduct was committed). The date of discovery of the misdemeanor is the day when it became known that the misconduct was committed.

Please note that the monthly period for the application of a disciplinary sanction does not include the time the employee is sick, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction

Dismissal for repeated non-fulfillment of labor duties requires strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on non-fulfillment of labor duties

The misconduct of the employee must be recorded by the immediate supervisor in a memorandum addressed to CEO. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the application of a disciplinary sanction.

2. The act of committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a specialist in the personnel department. The employee must be familiarized with the act against signature.

3. Notification of the provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations were requested, such a notice must be drawn up in writing and handed over to the employee against signature. In case of refusal to receive the notification, it must be read aloud to the employee and an act of refusal to receive the notification should be drawn up.

If, after two working days from the date of requesting an explanation from the employee, he did not provide it or refused, then an act is drawn up. If there is an act and a document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Consideration of the opinion of the representative body

Dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is made taking into account motivated opinion elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of the employment contract with the employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation should be guided general rules layoffs. It is necessary to draw up the following documents: an order to terminate the employment contract, a note-calculation, a work book, an employee's personal card.

Case Study

A client approached us for a HR audit. As part of the audit service, we also advise clients on all issues related to the application of labor law. One of the employees of the company was a single mother and "actively" used it. When checking the personal file of an employee, we found a large number of memos about her failure to fulfill her job duties. Previously, the client tried to lay off the worker, but in response she filed a complaint with labor inspection and went to court (although labor contract not terminated). The position of the employer was losing, since it is impossible by law to dismiss a single mother, and the procedure itself was framed incorrectly.

We advised the client to issue an order to suspend the dismissal of the employee, as well as to notify that her position will be retained. Despite this, the issue of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the comments of the employer used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace before the due date, arbitrarily without warning went on vacation.

Conducting a personnel audit showed that in the client's company, personnel records were kept with serious violations and many mandatory documents were absent, as a result of which it was impossible to make a claim to the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to a problem employee:

Draw up a detailed job description for the sales manager, which should describe all the duties and indicate to whom the manager reports;
- install in job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales targets to be met by all sales managers.

Only upon approval and familiarization of the employee with all the specified personnel documents possible disciplinary action. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary action when she committed the third misconduct, the procedure for dismissal followed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. An employee asked for an opportunity to quit own will, because I did not want such an entry in work book. The employer went to meet her, and the employment contract was terminated.