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Dismissal from work under the article. Dismissal initiated by the employer

It's no secret that the relationship between an employer and an employee is regulated by the Labor Code of the Russian Federation. The code itself begins by defining its creation. From its name it already becomes clear that the labor code is needed in order to regulate the labor relations of the parties, resolve disputes, and also protect the interests of both parties as much as possible. The employer, when hiring employees, studies the main provisions of the code and knows exactly his rights and obligations. V large companies the employer is assisted in this matter by employees personnel service and lawyers. But many paid workers choose to rely on the knowledge of their employer, with the result that many are fired in violation of the law.
Working in one of the companies during the crisis, I witnessed such a situation. The girl office manager could not find a common language with the newcomer to the company executive director... After frequent remarks about her, the girl, we will call her Olga, decided to quit by on their own, but general manager, wanting to show concern for his subordinate, persuaded Olga to stay. Two months later, a financial crisis began in the company. In such situations, the first measure to save the company, as a rule, is considered to reduce costs, oddly enough, they begin to reduce them at the expense of employee salaries. At the same time, the general decrease in salaries leads to massive indignation, it is easier to regulate the reduction of this item by reducing the "unnecessary" employees. Either the number of positions in one area of activity is reduced, or several "additional" rates are simply removed, the work on which can be painlessly scattered among the remaining employees. In our case, the job of an office manager fell under the reduction. And Olga was forced to resign of her own free will, threatening to fire her under Article 33. Having not sipped salty, the girl quit her job in complete bewilderment, embarrassed to ask for help from knowledgeable people.
About such dismissals, I want to tell the reader of MirSovetov.

Termination of an employment contract at the initiative of the employer

What is “to be fired under“ Article 33 ”?! In defense of the employer's interests from unscrupulous employees in Labor Code there are cases in which the employer can unilaterally terminate labor contract... These cases in the old Labor Code were listed in article 33. The code has changed, but the expression remains, and they are often intimidated by employees.
To date, these cases are described in Article 81. "Termination of an employment contract at the initiative of the employer." Here are its main points:

An employment contract may be terminated by the employer in the following cases:
1) liquidation of the organization or;
2) reduction of the number or staff of employees of an organization, an individual entrepreneur;
3) inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification;
4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated non-performance by the employee without good reason of labor duties, if he has disciplinary action;
6) one-time gross violation of labor duties by an employee:
( shifts);
b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that have become known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d) theft (including small-scale) of someone else's property, embezzlement, deliberate destruction or damage at the place of work, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) violation of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;
7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer;
8) an employee performing educational functions has committed an immoral offense incompatible with the continuation of this work;
9) 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;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) submission by the employee to the employer of false documents when concluding an employment contract.

Firing you by own initiative, the employer must make an appropriate entry in the employment record of the dismissed employee. The entry must have a link to the article and its specific part, to justify its actions. In addition, a dismissal order must be drawn up indicating the same article and the specific reason that guided the dismissal. The dismissed employee must be familiar with this order, which is confirmed personal signature dismissed. In addition, you have the right to take a copy of the order. In how to justify on the initiative of the employer unilaterally, a certain difficulty arises if a person leaves without existing reasons. Let's figure it out.
Point number 3 is the main threat in the mouth of the employer: if you don't write it in an amicable way, I will collect a commission to prove your incompetence. In order to collect an attestation commission and subject an employee to an exam, you need:

Draw up control questions in accordance with the Labor Code of the Russian Federation and regulatory legal acts, which are adopted taking into account the opinion of the employee representative.
The questions for certification may be to determine knowledge and skills according to his job description and general corporate rules.
The certified employee must be familiar with the content control questions in advance (not less than 1 day in advance).
Each private organization should develop its own certification rules, but they should not contradict or infringe upon the legal rights of employees.
Part attestation commission a representative of the workers' body (for example, a trade union) must be included.
The union representative always defends the rights of the worker.

To resort to paragraphs 5 and 6 of Art. 81 is quite difficult, since you will need to have indisputable evidence of the employee's guilt. For example, absenteeism should not just be put on the time sheet, but confirmed by testimony. On the fact of gross violations of labor disciplines, a decision should be made at a meeting with the participation of union employees, the latter, as a rule, primarily protect the rights of employees.
For example, I want to give a case from own life... When my daughter was 1.5 years old, I had a need to get a job. At the same time, I decided to change my place of residence and moved to Novosibirsk. She rented an apartment, got a job at a tool factory. When hiring me, they promised me a room in a dormitory and a place in kindergarten for a child, as a young specialist, since I got a job in my specialty, and the bulk of the workers were without special education, which affected the work of the workshop. Across set time at three months, the shop manager backtracked, taking all his promises back. What was I to do? There was no one to sit with the child, the salary was not enough to pay for a rented apartment. I wrote an application for parental leave, left it on the boss's desk, packed my things and returned to my parents. They called me, threatened, demanded to immediately go to work, but I explained my position and decided to let everything go by itself. To be honest, I thought I was fired. When my daughter reached 2.5 years old, I got a job in my hometown, bought a new one work book, because I thought that I was fired there and that 3 months' experience does not make me any better. But after my daughter was three years old, about a month later they called me from the factory and asked why I didn’t go to work? It turns out that at the meeting the union demanded to grant my application, and the whole period I was on parental leave. They could fire me only after I arrived and wrote a corresponding statement.
As you can see, not everything is so simple when you are fired unilaterally.

Reduction or layoff - what's the difference

Many, when downsizing an organization, agree to write a statement of their own free will. Everyone motivates their actions in their own way. Someone does not want long disputes, someone out of respect for the employer, and someone simply because they do not know their rights and benefits in case of redundancy. By dismissing at will, and not laying off, the employer does not hesitate to save money on the employee, then why should the employee not think about his benefits?
I'll start with simple pros and cons that are not prescribed by law. They are more related to psychological aspects. After dismissal, you will need to look for yourself new job... Not everyone manages to quickly get settled again, it will take time to search, although it so happens that a person is expected even before his dismissal in the same place. If there is no such place, at first the dismissed person will face depression and resentment. It is good to try to cope with this condition quickly, and not to fall into it is even better. And even necessary, since when passing interviews this will somehow affect you, and depression will not speak in your favor. The question is always asked: "The reason for dismissal from the previous job." If you are laid off on a layoff, you do not have to look for reasons and explain them.
Now let's see what the reduction law says.

Article 165. Cases of providing guarantees and compensations.
employees are provided with guarantees and compensations in the following cases:
... in the event of a forced termination of work through no fault of the employee;
in some cases, termination of the employment contract;
due to the delay due to the fault of the employer in issuing a work book when an employee is dismissed.

As well as:

Article 178. Severance pay
Upon termination of an employment contract due to either a reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of the average monthly earnings, as well as the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).
In exceptional cases, the average monthly salary is retained for the dismissed employee for the third month from the date of dismissal by the decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by him.
Severance pay in the amount of two weeks' average earnings is paid to an employee upon termination of an employment contract in connection with:
the employee's refusal to transfer to another job, which is necessary for him in accordance with the medical certificate issued in the manner prescribed federal laws and other regulatory legal acts Russian Federation, or the employer's lack of appropriate work;
by conscription of an employee to military service or by sending him to an alternative civilian service replacing it;
reinstatement of an employee who previously performed this work;
the employee's refusal to transfer to work in another locality together with the employer;
the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties.

Dear reader of MirSovetov, knowing your average salary, you can easily calculate how much an employer will save by dismissing an employee of his own free will instead of layoffs. Exactly how much you will lose by following the lead and agreeing to its terms.
From the above article, it can be seen that before firing or laying off an employee, the employer is obliged to offer an alternative work option in the organization, even if it is less paid.
Refuse the proposed alternative positions and you retain the right to receive compensation.
If there was an attestation, then according to its results you are assigned a qualification (or the degree of suitability for the position held), according to which you can be offered a salary reduction, and not dismissal. The decision of the qualification commission can be appealed. If the organization does not hear you, you can contact the committee for the protection of workers' rights or the court. To go to court, you will most likely need to seek the help of a lawyer. The help of a professional guarantees you the restoration of justice, and, having studied all the circumstances of the case, the lawyer will tell you in advance about your chances of success. With a court decision in a positive direction for you, all your costs (payment of state fees, work of a lawyer and other costs in the case) will be compensated to you by the guilty party, that is, by the employer.

The employer's benefit in dismissal of his own free will also in the legalization of income and expenses. If your wage consists of two parts (official and in an envelope), then, most likely, your employer will try to avoid any conflicts. In such situations, you can agree "peacefully". The compensation will not be paid officially, perhaps by slightly increasing the amount due to you, after which you will write a statement of your own free will. However, this option is also possible with transparent wage schemes.
Before carrying out a staff reduction and termination of employment contracts, the employer must notify the elected body of the primary trade union organization (the employment service) no later than 2 months in advance, and in case of mass dismissal, no later than 3 months.
When you need to gain time before dismissal, you can resort to the last paragraph of Article 81 of the Labor Code of the Russian Federation:

Dismissal of an employee at the initiative of the employer (except for the case of liquidation of the organization or termination of activities) during the period of his temporary disability and during the period of his vacation is not allowed.

You have the right to write an application for vacation, even unpaid (for family reasons), before being fired.

In cases labor disputes the law is more often on the side of the employee. Don't be afraid to assert your rights. Don't give up the benefits and benefits. At full confidence that you are being treated unfairly, defend your position. Remember: no one except you will stand up to protect your interests.

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

How to fire an employee without his desire according to the law in 2018

Situations in which the employer wants to fire an employee without his desire according to the law are extremely common in 2018 - some employees can carry out actions that are clearly destructive for the company, do not correspond to the team and spoil work environment, or the need for dismissal may be caused by third-party circumstances. At the same time, employees very often take advantage of the fact of protection from the law and in every possible way prevent their dismissal. Therefore, in case of illiterate actions, the employer is either forced to endure their presence and incur certain costs because of this, or is at risk of being held accountable for illegal dismissal.

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

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

There are some categories of employees who cannot be dismissed at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be dismissed, even when committing gross misconduct and guilty actions in relation to the employer. The ability to fire an employee who has a child under three years of age is also limited - if this employee is a woman or the sole breadwinner.

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

How to get an employee to quit of his own free will or agreement

In many, even conflict situations, if there is a need to get rid of an unwanted employee, employers simply do not know how to force an employee to leave of his own free will or convince him to stop. labor activity by agreement of the parties. At the same time, there are enough possible actions that can be taken in order for the employee to take the right decision, even when he is initially set to conflict with the employer.

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

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

In this case, the simplest tactic of action would be to use all the tools that legislation provides. For example, initiate the recording of the employee's working time, issuing him all instructions in the form of written orders with acts of acceptance and recording each result or error in the employee's activity in order to find another reason for dismissal. The employer may also need to resort to one of the following methods.

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

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

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

How to fire an employee for a gross violation

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

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

Start an official investigation into the circumstances that have occurred.
Request an explanation from the employee.
Issue an order to dismiss the employee.
Issue to the employee a work book, the funds owed to him and a certificate of income.

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

The notification of the employee and the issuance to him of all documents related to the dismissal must be carried out in the presence of witnesses and with their signatures about the transfer of documents to the employee and, if there is one, about the employee's refusal to accept them.

How to get fired for inadequacy or insufficient qualifications

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

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

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

How to fire an employee without his desire according to the law by changing the terms of the contract

A common method used to fire an employee without wanting to by law in 2018 is to change the terms of an employment contract. According to the law, the employer can make such changes only if the employee agrees. However, a number of actions and situations allow making changes without the consent of the employee.

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

How to dismiss on probation

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

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

Therefore, in the main, challenging the dismissal on a probationary period is based precisely on the two above grounds. And it is the employer who should worry about the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to cut an employee without his desire

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

Advance notice of laid-off workers. Employees must be notified at least two months in advance of the upcoming layoff.
Mandatory notification to all regulatory authorities. Namely - a trade union organization, an employment center.
Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
Execution social guarantees in relation to certain categories of employees. These guarantees include both a complete ban on layoffs of some workers, and the right of workers to preferential leave in the workplace.
Offer all vacancies. The employer, as in many other situations, is obliged to provide the downsized with the opportunity to find other vacancies suitable for them.

You can also read in more detail about the features of layoffs for staff reduction, where all the nuances of this procedure are considered.

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

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

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

It should also be remembered that the dismissal of managers upon a change of ownership is allowed without any other grounds for terminating the employment contract. But you need to understand that to leadership positions in this context, only the direct manager of the enterprise, his deputy, and also the chief accountant are related.

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

Who cannot be fired at the initiative of the employer

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

Base	Laborer	The period during which dismissal is impossible	Exceptions (when an employee can be fired)
	Temporarily disabled	Sick leave period	Liquidation of the employing organization (termination of the sole proprietorship)
	Worker on vacation	Vacation period
Art. 261 of the Labor Code, paragraph 27 of the Resolution of the Plenum of the RF Armed Forces "On the Application of Legislation Regulating the Labor of Women ..." dated 28.01.2014 No. 1	Pregnant	Maternity leave. One week from the day the employer learned about the end of the pregnancy for reasons other than childbirth	Organization (IP) is being liquidated. A pregnant woman was hired to the place of a temporarily absent employee, the term of her employment contract has expired, and it is impossible to transfer her to another position
Art. 81, 261, 336 TC,	An employee with a child under 3 years old	Up to 3 years of age	The organization or individual entrepreneur is being liquidated. An employee subject to disciplinary action without good reason 2 or more times has not fulfilled labor duties. Gross violation by an employee labor discipline(drunkenness at work, absenteeism, disclosure of secrets, theft from work, violation of labor protection rules). Providing forged documents when applying for a job. Loss of confidence in the value worker. Committing an immoral act by an employee performing an educational function. Violation of the head of an organization, municipal or civil servant of the Law "On Combating Corruption" dated 25.12.2008 No. 273-FZ in terms of concealing information about income and expenses or failure to act in the event of a conflict of interest. An employee-teacher committed violence, mental or physical, against a pupil, student
	Single mother or other person, in her absence, raising a disabled minor	Up to the 18th birthday of a disabled person
	Single mother or other person, in her absence, raising a minor	Up to the 14th birthday of the child
	The sole breadwinner of a disabled minor	Up to the 18th birthday of a disabled child
	The sole breadwinner of the young	Up to the 14th birthday of the child
	A woman raising three or more young children when the other parent is unemployed	Until the child's 14th birthday or the second parent starts working

Don't know your rights?

Preemptive right: who can not be fired when staff reductions

A kind of immunity from dismissal in case of staff reduction in accordance with Art. 179 TC have workers who have shown the highest labor productivity and have the highest qualifications in comparison with the rest.

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

with two or more dependents;
the only workers in the family;
who received at their current place of work Occupational Illness or work injury;
invalids of the Second World War or military operations;
in parallel with work, raising qualifications.

inventors (Article 35 of the USSR Law "On Inventions in the USSR" dated 05/31/1991 No. 2213-1);
workers at their first job after military service (Art. 23 of the Law "On the Status of Servicemen" dated May 27, 1998 No. 76-FZ);
spouses of military personnel serving in government organizations and military units (Art. 10 of Law No. 76-FZ).

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

INTERESTING! As the judicial practice shows, in certain situations the pre-emptive right may not be taken into account. In particular, the judicial board of the Sverdlovsk Regional Court in the appeal ruling of 05/27/2016 in case No. 33-9214 / 2016 indicated: if by the order of the employer all available staffing positions are reduced for one position, there is no basis for considering the issue of the preemptive right of individual employees.

Preemptive right: which categories can not be reduced with a decrease in the number of employees

The list of persons who have the preferential right to keep their jobs while reducing the number of staff, according to Art. 179 of the Labor Code, coincides with the list of employees who have the same guarantees in case of staff reduction.

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

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

In the ruling of appeal dated May 31, 2016 No. 33-3600 / 2016 of the Khanty-Mansi Autonomous Okrug-Yugra court, dismissal without considering the issue of the priority right of workers was also recognized as illegal.

At the same time, there is no need to analyze the preferential rights of workers if the employee used the provided Art. 180 TC the right to terminate work ahead of schedule, having received compensation. As indicated in the appellate ruling of the Supreme Court of the Komi Republic dated August 26, 2013 No. 33-4492 / 2013, the presence of consent to early termination of work indicates the employee's consent to the upcoming termination labor relations, which frees the employer from establishing the existence of circumstances giving the employee a preferential right to remain at work.

Additional conditions under which it is impossible to fire an employee

In addition to the list of persons whom the employer has no right to dismiss within a certain period of time, the Labor Code also names a number of additional conditions that prevent the dismissal of an employee on the initiative of the employer. All of them relate to violations of the dismissal procedure:

The reason for dismissal is not relevant.
This condition applies, in particular, to the case provided for in Part 5 of Art. 81 of the Labor Code, according to which it is impossible to dismiss an employee for guilty actions that led to a loss of trust, or for an immoral act committed not in connection with work, if more than a year has passed since the discovery of such actions by the employer.
Not complied with additional conditions layoffs.
For example, according to Art. 269 TC underage worker can be dismissed only after obtaining consent from the supervisory authorities:
- juvenile commissions;
- State Labor Inspection.
Failure to notify or shorten the time period for notifying an employee or union of a planned dismissal.
The warning period varies from 3 months to warn the trade union about the impending mass dismissal of workers (Article 82 of the Labor Code) to 3 days to warn an employee who has shown unsatisfactory results of cooperation on a probationary period (Article 71 of the Labor Code). This basis is common to any employer and employee.
Failure to comply with the requirements for the content of the notice of dismissal of the employee.
In practice, such a basis is rather shaky, since it does not contain a single list of requirements of the Labor Code. Separate requirements are provided for by Art. 81 and 180 of the Labor Code, the Procedure for the submission of notifications by employers and customers of work (services), approved. by order of the FMS dated June 28, 2010 No. 147, and also contained in the court rulings.

Judicial practice in cases of failure to notify of dismissal

Whether the employee will be reinstated in his position or not, if he, presumably, was not notified of the upcoming dismissal, depends on the specific circumstances.

In practice, there are often cases when an employee asks to reinstate him at work, referring to the fact that the employer did not notify him of the upcoming dismissal. The case file reflects that the employee refused to sign the notification presented to him, but personnel officer reads out a notification to the employee, about which a note is made on the document. The courts, having received proof of proper notification, refuse to reinstate at work (see the appeal ruling of the Armed Forces of the Republic of Bashkortostan dated 05.10.2016 in case No. 33-19651 / 2016, the appeal ruling of the Moscow Regional Court dated 01.06.2016 in case No. 33-13162 / 2016, etc. .).

Conversely, if the case file confirms that the notice was not sent to the employee, the court, as a rule, reinstates him at work. For example, in the decision of the FAS ZSO of 12.04.2011 in case No. A70-9086 / 2010, it is noted that since the procedure for notifying the employee is not followed, the fixed-term employment contract has lost its urgent nature and by virtue of Art. 58 TC becomes an agreement concluded for an indefinite period.

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

Some requirements for the content of a notice of dismissal

TC does not contain requirements for the details of the notification and its content, but some requirements are indicated in other acts:

Notification section	To whom is it directed	Requirement	Base
Requisites	To the employee	Since the decision to terminate labor relations is made by the employer or a person authorized by him, the head of the organization, the head of the organization, or the person who has the formalized authority to notify the upcoming dismissal has the right to send a notice of the upcoming dismissal to the employee. The notice sent by the head of the personnel department who does not have the formalized authority to make a decision on dismissal on behalf of the employer is not appropriate	Definition of the RF Armed Forces dated 03.10.2008 No. 89-B08-6
	To the territorial subdivision (TP) of the FMS	For the dismissal of a foreign worker, it is established additional requirement on notification of TP FMS with the help of unified form containing: - name of TP FMS; - employer status; - information about the employee; - information about work permits, patents; - information about the termination of the employment contract. Failure to fill in at least one field of the form means that the notification was made in an inappropriate form, which entails liability under Part 3 of Art. 18.15 Administrative Code	Art. 13 of the law of 25.07.2002 No. 115-FZ "On legal status foreign citizens in the Russian Federation "; clause 5 of the Procedure for the submission of notifications by employers and customers of work (services), approved. by order of the FMS dated June 28, 2010 No. 147 and Appendix No. 20 to the order; Resolution of the Arbitration Court of the ZSO dated 11.12.2015 No. F04-27100 / 2015 in case No. A27-9151 / 2015
	To the employee	In case of a reduction in the number of staff and dismissal due to insufficient qualifications, the employer is obliged to offer the employee to transfer to another vacant position. The employer must notify the dismissed of all vacant positions, already existing and newly introduced, up to the day of dismissal. It seems logical that in case of dismissal due to insufficient qualifications or in connection with a reduction in the number of staff, simultaneously with the notice of dismissal, the employer must notify the worker of the available vacancies.	Art. 81, 180 TC; determination of the Omsk Regional Court dated May 23, 2007 No. 33-1597

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

In addition, the Labor Code introduced for certain categories of workers a pre-emptive right to keep jobs in the event of staff reductions. First of all, such privileges are enjoyed by the most useful employees, that is, those whose labor productivity and qualifications are higher than those of the rest.

Clause 3 of Part 1 of Article 81 of the Labor Code of the Russian Federation provides that an employee can be said goodbye to, revealing the inconsistency of his position. However, everything is not so simple here. The resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 states that dismissal for such a reason is permissible, provided that the employee's inadequacy to his position or work performed due to his insufficient qualifications is confirmed by the results of certification. That is, the subjective opinion of the management that the employee does not correspond to the position, but simply does not cope with the work, is not enough. Therefore, the employer does not have the right to terminate the employment contract with the specialist on the above grounds, if the employee has not been tested for his knowledge, or the certification commission has come to the conclusion that the specialist is apt to be professional. The Plenum of the Supreme Court also clarified that the conclusions of the certification commission on business qualities employee are subject to assessment in conjunction with other evidence in the case. This means that if, in the process of parting with the employee, a dispute arises that reaches the arbitrators, then the servants of Themis will take into account the opinion of the commission, but it will not be decisive; judges will also take into account, for example, the opinion of the head of the company about how the employee is fit for the position.

Please note: dismissing a person for his professional incompetence is allowed only if it is impossible to transfer the employee to another job, for example, a vacant position.

Please note: it is allowed to fire a person for his professional unsuitability only if it is impossible to transfer the employee to another job, for example, a vacant position corresponding to the employee's qualifications or to an open lower vacancy / lower-paid job. At the same time, part 3 of article 81 of the Labor Code of the Russian Federation obliges the company to offer the employee all positions that meet the above requirements.

Let's go back to the resolution of the Plenum of the RF Armed Forces No. 2. Now let's study the following important clarification contained in the paper. If the employee was dismissed under paragraph 3 of the first part of Article 81 of the Labor Code, then the company is obliged to provide evidence that the employee refused to transfer, or the company was not able (for example, due to the lack of vacancies) to "transfer" the person with his consent to another position.

Rostrud in the Letter dated April 30, 2008, No. 1028-s, clarified that dismissal on the named grounds without certification is not provided.

Thus, it is quite problematic to say goodbye to an employee for his inadequacy to the position.

For which they can be fired

Another reason for dismissal is a single gross violation of labor duties by an employee (clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation). If an employee commits one of the misconduct below, they can be fired without delay. So, we are talking about:

truancy;
appearing in the service (at his workplace or on the territory of an organization or facility where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;
disclosure of secrets protected by law (state, commercial, official and other);
theft (including petty) property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;
violation by the employee of labor protection requirements established by the commission or the labor protection commissioner, if it entailed grave consequences, for example, an accident, or knowingly created a real threat of such consequences.

Absenteeism

You can also fire an employee if he was absent for four hours during a working day (shift). So, if, for example, an employee went out to lunch and “walked around” the shops, this is a reason for dismissal. Please note that the absence from the office must take place within the specified period and follow in succession. This means that if an employee came to work on time, and then went about his business and was absent for four hours, this can be considered absenteeism. If an employee goes out several times during a working day, for example, for half an hour, this is not considered absenteeism, despite the fact that the total amount of time the person was not there.

Firing for absenteeism is not easy, because you will need to confirm the absence of an employee at the workplace. At companies where the time of arrival is recorded in magazines or with the help of turnstiles, it is quite easy to check the availability of a specialist on site. If there is no such control, then problems may arise, but there are options, and in this case: evidence of truancy will be, for example, testimony.

Another feature: absenteeism can only be applied to cases when the employee did not show up for work for no reason or was absent from his place. This means that if a person did not come, for example, to a Saturday work day, or to some corporate event, which was held on his day off, is not considered truancy.

Please note that if a person does not appear at work for several days in a row, and in our country this happens all the time, then upon dismissal, the day before the start of truancy will be considered the last one.

Intoxication and theft

Another reason for dismissal is the appearance of an employee at work in a state of intoxication. For this reason, you can be fired immediately and without any warning. To prove the fact of alcohol or drug intoxication, a doctor's opinion would be ideal, but witness testimony is a strong argument.

Please note that if a person does not appear at work for several days in a row, and in Russia this happens all the time, then upon dismissal, the day before the start of truancy will be considered the last one.

For disclosing a secret protected by law, you can also say goodbye to an employee immediately. We are talking about those cases when secret information became known to an employee in connection with the performance of his job duties. I would like to note that the voice-over of personal data of colleagues also belongs to such a violation. Attention: only the person who signed the document containing information related to commercial or official secrets can be dismissed on this basis: the presence of his autograph means that he has gained admission to such information. Documents that contain classified data are usually marked with the stamp "DSP" (for official use), access to them is carried out by employees against signature.

Another reason for dismissal is theft by the employee. In Resolution No. 2, the Plenum of the RF Armed Forces clarified that any property that does not belong to this employee, in particular, property belonging to the company, to other employees, as well as to persons who are not employees of this organization. Keep in mind that in accordance with Article 193 of the Labor Code of the Russian Federation, a disciplinary penalty (and this includes dismissal) is applied no later than one month from the day the offense was discovered, not counting the time of the employee's illness, his stay on vacation, as well as the period required to take into account the opinion of the representative body ...

The Plenum of the RF Armed Forces in Resolution No. 2 clarified that if the dismissal occurs in connection with theft, which was carried out by the employee, then the established monthly period is calculated from the date of the entry into force of the judgment of the arbitrators or the decision of the judge, body, official authorized to consider cases of administrative offenses ...

Marina Skudutis, expert of the magazine "Calculation"