The labor code for which they can be fired. Why you can fire an employee and how to do it right

The relationship between employer and employee is not always friendly. Often, employers try in every possible way to get rid of a negligent employee and threaten him “under the article”. To understand what this means in practice and what legal consequences may occur, we suggest that you familiarize yourself with the main conditions for termination labor relations, and articles on which they can be fired from work.

Grounds for dismissal in labor law

Termination of employment is governed by Chapter 13 Labor Code RF. This section describes the basic conditions under which employees can be terminated.

It should be noted that the dismissal "under the article" means nothing more than the application in the process of termination of labor relations of the norms of a specific article that regulates the basis for the dismissal of a citizen from work. In this case, the paragraph (subparagraph) and the article number, together with the number and date of the dismissal order, are entered in the work book as a basis for dismissal.

The current legislation provides for the following basic conditions for termination of employment:

• termination of labor relations is carried out by agreement of the parties;
• the future employee did not perform properly during the probationary period;
• in case of expiration employment contract drawn up for a specific period;
• the employee independently wishes to take the initiative and stop working in a particular company;
• in the event that conditions arise at the employee’s workplace that affect or may affect working conditions, his health or require him to make cardinal changes in his life (moving to another city or another locality);
• if the administration wants to get rid of the employee;
• the employment relationship is terminated for reasons beyond the control of the parties;
• Initially, when concluding an employment contract, gross violations of the law were committed.

Remember, under each condition for dismissal, the Labor Code contains a specific article, which establishes in detail how or for what exactly the employment relationship with an employee can be terminated. These standards are binding on both the employee and the administration.

It should be borne in mind that the articles also disclose a detailed list of reasons on the basis of which it is possible to carry out the procedure for terminating a previously concluded labor agreement. Depending on the conditions, the initiative here can be shown by both the administration and the employee himself. The main thing is that the situation clearly corresponds to the reasons for dismissal provided for in the article.

Popular reasons for quitting

To understand why exactly an employee can be deprived of his “familiar place”, it is advisable to consider the available statistics of layoffs for reasons. Three main areas should immediately be distinguished, which are regulated by separate articles of the Labor Code, namely:

1. Dismissal at the initiative of the employee. The article does not require special comments. The key nuance of this type of dismissal is that the employee is obliged to notify his employer about the date of dismissal no later than two weeks before it occurs.
2. Agreement reached by the parties. Here, the termination of employment is carried out on any day that the parties agree among themselves. Practiced on the day of writing the application.
3. Termination of employment relations at the initiative of the administration. In this case, the law provides for a list of conditions, as well as the procedure that the administration must follow in order to legally dismiss a negligent employee.

Now that we have outlined the most popular areas for termination of employment, we propose to dwell in more detail on the list of reasons when the administration may initiate the dismissal of an employee. This included:

1. enterprises, reducing the number of employees.
2. Absenteeism (absence from work for more than 3 hours at a time).
3. When the employee does not correspond to the position held (a strong evidence base will be required here).
4. Systematic violation by an employee labor discipline if disciplinary measures have already been taken against him.
5. Drunkenness, drug addiction, substance abuse both during work and the appearance at the workplace in such a state.
6. Stealing company property or taking actions that result in excessive waste.
7. Other reasons provided by law.

Remember, it is possible to dismiss an employee at the initiative of the employer only for the fact of misconduct, properly recorded and executed. The intention to do something illegal, if it has not been completed or committed, is not a reason for dismissal. For this, even a disciplinary sanction can not always be announced.

In order to understand how this happens in practice, we suggest that you familiarize yourself with the dismissal procedure in specific areas in more detail, what is required for this and how it is formalized.

How to quit on your own

The dismissal procedure own will

An employee can decide to leave the company at any time. At the same time, he is not obliged to explain to the employer the reasons for his act. Termination of an employment relationship can be carried out for two reasons:

• by prior arrangement with the administration;
• at will.

The difference between these methods of dismissal lies in the need for "" a two-week period from the date of dismissal. In other words, if you cannot agree with the employer on the date of dismissal, you must write a letter of resignation and register it through the office in the prescribed manner. By law, the employer is required to issue a dismissal two weeks after the registration of such an application.

It is important to indicate that before the date of dismissal, the citizen has every right to change his mind and withdraw his application (this is done by another application, which is also registered in the prescribed manner through the office). An exception may be cases where, within a two-week period, the employer has already managed to invite another employee to the vacant position and has concluded an employment contract with him.

Remember, on the last day of work, the administration is obliged to issue an order to terminate the employment relationship, make the appropriate entries in the work book and complete the full payroll with the departing employee.

If, for some reason, the dismissal of the employee was not formalized in a timely manner, he has every right not to go to work from the date indicated in the application. The employer has no right to hold him accountable for this or dismiss him for any other reason.

Under what circumstances are dismissed at the initiative of the administration

Dismissal for theft and embezzlement

If an employee violates labor discipline or performs actions that harm the development and image of the company, the employer may have grounds for early termination of employment with such an employee for own initiative without his consent. The main thing here is to correctly execute the procedure for registering such a fact.

Considering the most popular reasons for dismissal at the initiative of the administration, the following points should be highlighted.

• to a higher manager (for example, the dismissal was carried out by a branch of the company, the appeal is made to the head of the parent organization);
• through the trade union (here you can complain to the trade union of which the employee is a member);
• by filing a complaint with the relevant government agency, whose functions include supervision over compliance with labor legislation (this may be a labor inspectorate or the prosecutor's office);
• by filing a lawsuit.

Upon consideration of a complaint (statement, claim), decisions to cancel a previously accepted document on dismissal or to refuse an employee to satisfy his application may be reduced. If a decision is made in favor of the employee, the employer is obliged to pay the employee for the entire period of forced absenteeism based on his average earnings.

Remember, the law does not establish the order of appeal in the appeal process. illegal dismissal. Here the employee decides on his own where to apply.

For dismissal under article 81 of the Labor Code for absenteeism, see this video:

Question form, write your

Dismissal can be caused by completely different reasons. Most often, employees leave on their own initiative. Note that this situation is the most acceptable for the employer, because there is no risk that the subordinate can sue. But there are times when an employee simply does not cope with his functional duties, or even does not go to work at all. How to proceed in such a case? How to fire an employee without violating the Labor Code?

Of your own accord

Many managers believe that voluntary dismissal of an employee is the best and easiest option. The subordinate writes a statement, works for 14 days, receives a full payment and takes the work book. And everything is in the bag. But this is not entirely true, there can be many nuances. For example, if a person can no longer fulfill his labor duties due to certain circumstances (for example, he entered a university, retired, moves to another city for permanent residence, goes to a hospital for an indefinite period of treatment, etc.), then he must be dismissed by the number that he indicates in his application. That is, it should be released without working off. In all other cases, the authorities may oblige the employee to work for the required 2 weeks until a replacement is found.

Quite often, difficulties arise when you need to fire an employee for probationary period. In this case, the period of its development is reduced to 3 days. If the boss obliges him to go to work for 14 days, this will be considered a violation. It is very important to make a settlement with the employee on the last day of his stay in the service, at the same time he is also given a work book.

Dismissal at the request of management

In order for the employer to be able to fire an employee on his own, he needs to have good reasons for this, of course, one desire will not be enough. In addition, if the employer does not fully take into account all the requirements of the Labor Code regarding dismissal, the employee can easily challenge such a decision in court. So, how to fire an employee at the initiative of the director? First, it is worthwhile to understand that the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employment contract with a subordinate can be terminated. In particular, these are the cases:

1. Complete liquidation of an enterprise or individual entrepreneur.

2. Reducing the staff or the number of employees.

3. Inconsistency of the employee with the position held due to insufficient qualifications.

4. Change of the founder (applies only to the head, his deputies, chief accountant).

5. Repeated failure to perform functional duties without good reason, but on the condition that the employee already has a disciplinary sanction.

6. Disposable gross violation their duties:

• absenteeism (absence from work for more than 4 hours in a row);
• appearance in a state of narcotic, toxic or alcohol intoxication;
• disclosure of commercial, state, official or other secrets;
• theft at work, embezzlement or deliberate damage to someone else's property (if there is a corresponding court decision);
• violation of labor protection requirements (if it is established by the labor protection commission);

7. The commission of guilty actions by an employee who serves commodity and monetary values, which led to a loss of confidence on the part of superiors.

8. Committing an immoral act (for employees who perform educational functions).

9. Making a decision that caused a violation of the safety of property or its misuse (this applies to the head, his deputy, chief accountant).

10. A single gross violation of labor duties by the boss or his deputies.

11. Providing false documents when applying for a job.

12. In other cases provided for by law or an employment contract.

Liquidation of the organization or reduction of staff

If the enterprise is planned to be liquidated or a reduction in the number of employees is coming, then it will not be possible to dismiss employees at their own request. You have to act according to the letter of the law.

Firstly, if we are talking about the liquidation procedure, then this fact must be documented in writing. If the reduction is carried out at the enterprise, then the employer is obliged to prepare documents where the reasons for the reduction in the number of employees should be given. For example, if it is proved in court that the employer did not need to reduce, then the employee can easily be reinstated.

Employees must be informed about the upcoming liquidation and staff reduction 2 months in advance. Subordinates who are subject to redundancy should be offered other vacancies, even if they are lower paid (if any). If the employee refuses the offered job, he can be fired. After a 2-month period, the dismissed employees are calculated, and they are also entitled to the payment of severance pay and average earnings for 2 months (if they are not employed during this period).

You don't suit us

If the subordinate does not cope with his duties, you can also say goodbye to him. However, the fact that he does not correspond to his position still needs to be proven. The knowledge of the employee will have to be tested. To do this, conduct an extraordinary certification. An order for the enterprise creates certifying commission of several people (the leader does not have to be there). Also, a special provision should be developed for the appraisal of employees. It indicates the timing, evaluation criteria and the procedure for such an event.

Subordinates are introduced to this position against signature. It is also necessary to approve the composition of the commission. It may include a director, deputies, representatives from the trade union, the immediate supervisor of the employee whose knowledge will be tested.

How to dismiss an employee under the article for inconsistency with his post? To do this, you need to get the conclusion of the commission that the person failed the certification. But that's not all. The employee will need to be given a second chance, and after a while to arrange another check. If this time the members of the commission recognize the employee as not having passed the certification, then he can be fired. However, remember that a person can try to challenge such a decision in court.

Violation of labor discipline

How to dismiss an employee if he violated labor discipline? In this case, you need to be very careful, since even the slightest mistake can lead to the fact that the employee will be reinstated by court order. First, remember the following points:

1. You can't be fired for a single misdemeanor. According to the Labor Code, employees who violate the routine and rules repeatedly are subject to dismissal. Lawyers advise writing a dismissal order only in the event of a third violation of labor discipline. For the first two acts, the employee must have reprimands (with entry in a personal file), the validity of which has not expired. If the employee commits a violation for the third time, then he does not need to be reprimanded. You can safely fire him.
2. An act committed by an employee must be recorded somewhere as a violation. For example, in his job description or other local act.
3. Before dismissal, the boss must demand an explanatory note from the employee. If he refuses to write it, draw up an appropriate act about it.
4. Even if you fired a person from work under an article, you still need to pay him off: wage arrears are paid off, for unused vacation paid sick leave (if any).
5. On the last day of service, the dismissed person is given his work book (against signature).

If you fulfill all the requirements, do not miss the deadlines, receive an explanatory note from a subordinate, then you can be sure that it will be almost impossible for a violator of discipline to be reinstated at work.

How to fire an employee for absenteeism?

Well, what is so difficult here? many will ask. The person did not go to work, did not warn the authorities about his absence, which means that you can immediately dismiss him for absenteeism. But it's not all that simple. Even if the employee was absent from work for more than 4 hours in a row or the entire working day, you must get an explanation from him. In addition, the employee may have a good reason. If the next day he brings a sick leave certificate or, for example, a certificate of blood donation, then it will not work to say goodbye to the employee.

Sometimes it also happens that a subordinate has disappeared altogether, does not appear at work for weeks, but phone calls doesn't answer. How to fire an employee in such a situation? You need to send him a letter to his home address stating that he should come to work within a certain period (for example, 5 days) and write an explanatory note. At the same time, it is necessary that his immediate supervisor draw up written acts on the absence of a person in the workplace. If during this time the employee does not appear, you can draw up an order to dismiss. An example of such a document might look like this:

Drunk Appearance

If an employee came to work drunk, it is, of course, prohibited to allow him to perform his duties in such a state. However, it is very important to record the fact that the employee is in a state of intoxication. The immediate supervisor must draw up a memorandum for him (addressed to the employer). It is important in it not only to indicate that you suspect that the subordinate is "underwhelmed". Describe the signs of intoxication you noticed: the smell of alcohol, incoherent speech, lack of coordination, etc.

If possible, create a special commission to investigate this case. It is also necessary to draw up an act fixing the condition of the employee.

It would be even better if you send a subordinate for a medical examination. For example, it can be carried out by a narcologist. Medical conclusion, act of the commission, testimony - this is key documents, which give every reason to say goodbye to an employee who likes to take a drink during working hours.

When the employee is already in a sober state, demand from him a written explanation of his act. If he refuses to write such a paper, draw up an act about this as well. After all these procedures, write a letter of resignation. A sample wording is as follows: "Fired for appearing at work in a state of alcoholic (toxic, narcotic) intoxication, clause 6, part 1, article 81 of the Labor Code of the Russian Federation." Date the order on the day of publication, and not on the day when the employee came "drunk".

Dismissal on sick leave or vacation

Dismissing an employee who is on sick leave is generally prohibited. Even if we are talking about layoffs, absenteeism, committing a disciplinary violation, etc. If a subordinate is sick, then no actions can be taken against him (dismiss, transfer to another position). But even in this case there are exceptions.

If the company is liquidated, then all employees can be fired (even if they are on vacation or sick). Also, an employee who is on sick leave can pay himself. That is, dismissal of one's own free will, even if the employee has an unclosed disability certificate, is allowed.

It is worth noting that in this case, the subordinate will not have to work out a two-week period. And the employer is obliged to pay the allowance for sick leave to him. This rule applies if the disability certificate is closed within 30 days after the person leaves work.

How to dismiss an employee on sick leave at the request of the boss? As already noted, this will not work. You have to wait for him to go to work. And only then decide questions about dismissal, if there are grounds for that.

Other reasons for leaving

The Labor Code provides for more than 10 grounds for dismissal of an employee at the request of the boss. In particular, they include theft of property at the place of work or its damage. But it is very important to understand that only a court can recognize a person guilty of theft. The head, of course, has the right to conduct an internal investigation, interview witnesses, but dismissal cannot be made without a court decision. Therefore, do not neglect this requirement.

It is also allowed to terminate the employment contract in cases where the employee has violated labor protection rules. But, again, this fact must be proven. Only the commission on labor protection can recognize the guilt of a subordinate.

Special grounds

A very interesting case is the termination of the contract due to the loss of trust. How to dismiss an employee on this basis? Many employers forget that only those employees whose activities are directly related to the maintenance of commodity and monetary values ​​can be fired in this way. For example, Chief Accountant does not fall under this category. He must not receive money or other valuables by check. For this reason, it is also impossible to say goodbye to the merchandiser, controller, marker and other persons who do not bear financial responsibility.

What else can you fire an employee for? Special grounds also include the commission of an immoral act. However, in this case, it is possible to terminate the employment contract only with the employee who performs educational functions. At the same time, the concept of "immoral act" is not explained by law. It can only be noted that this includes obscene statements or behavior that humiliates another person, appearing drunk in public places. In any case, the employer (director) himself must determine the severity of the teacher's act and, on this basis, already decide whether he is subject to dismissal or not.

Dismissal of objectionable employees

Many companies have employees who, although they perform their duties well, do not violate discipline, but, for example, are very talkative or like to set up bosses, which can harm the company. Of course, this is not a trade secret, however, many managers would like their subordinates to spread as little as possible about the successes or failures of the enterprise, its corporate policy etc. How to fire an objectionable employee? Naturally, saying goodbye to the employee for his long tongue will not work. Will have to look legal grounds. Perhaps, everything is not so smooth in his work, and he can be brought to disciplinary responsibility, doubt his suitability for his position, and, finally, be fired under the article. In a word, here every leader must show ingenuity and ingenuity. You should not rashly write an order and dismiss a subordinate, for example, for violating discipline, if he has not had a single reprimand before. It would also be a mistake to fire him due to downsizing if in fact no downsizing is foreseen. The main thing is that from the position of the law everything is perfect, and the employee has no reason to sue.

Payouts when leaving work

For what you can fire an employee, we found out in more than detail. Finally, it is necessary to mention the calculation. On the last day of his work, the subordinate is entitled to the payment of wages for the time worked, as well as other stipulated accruals. This rule applies to all employees. Even if an employee is fired as a result of his guilty actions, he is entitled to vacation pay. Money is not paid only if the employee goes on vacation with subsequent dismissal. The same applies to the sick leave. Payment for sick leave to a terminated employee must be made within 30 days of settlement. And the last thing: on the day of dismissal, do not forget to give the employee a work book.

Losing a job rarely brings joy. Especially if you are fired for an "ugly" article.

Some employers abuse the right to dismiss an employee under Art. 81 of the Labor Code of the Russian Federation. So they get rid of objectionable employees. In order not to get into a similar situation and not spoil the labor with a bad record, you need to know the basic rules for dismissal under the article.

Reasons for dismissal under the article

If the employer decided to fire you under the article, then pay attention to the entry in work book. There can be no other grounds for dismissal at the initiative of the employer:

• downsizing or liquidation of the organization;
• change of the owner of the company (this applies to the head, his deputies and chief accountant);
• inconsistency of the employee with the position held, or malicious evasion from the performance of labor duties;
• gross violation of labor discipline (for example, absence from work);
• loss of confidence (applies to persons serving commodity-money values);
• committing an immoral act (applies to persons working with children);
• the head of the organization made a decision that caused damage to the company;
• the employee submitted fictitious documents during employment;
• other cases stipulated by the current legislation.

Pay attention to the wording of the dismissal in the work book.

Absenteeism

Absenteeism is the most common reason for dismissal at the initiative of the employer.

An employee can be called a truant if he:

• is not at the workplace for more than 4 hours in a row, and this fact is confirmed in writing;
• did not show up for work at all.

Late for work for 4 hours - they can be fired for absenteeism.

Please note that absenteeism does not equate to absence from work for a good reason. The following situations are not considered absenteeism:

• Required medical attention

It could be an accident at work or some other emergency when an employee is forced to seek help for himself or a colleague.

• Participation in investigative activities

It doesn't matter who you are - a suspect, a witness or a witness. You are given the right to miss a working day if this is due to an investigative need.

• Employer withholds wages for more than 15 days

You are not required to work for free. But before you go on an unplanned vacation, you need to inform the management in writing.

If they don't get paid, they can't go to work.

Drunkenness

The main signs of alcohol intoxication include:

• the presence of a characteristic odor;
• unsteady gait, impaired coordination of movements;
• hand tremor;
• inadequate reaction to any actions or words of other people, aggressive or irritable behavior;
• slurred speech;
• pale skin or, conversely, a sharp reddening of the skin and constricted pupils.

However, these signs do not give an unambiguous answer whether a person took alcohol or not. Therefore, it is problematic to prove drunkenness in the workplace.

Caught at work for drinking - fired under the article for drunkenness.

The legislator makes several important clarifications to dismissal for alcohol intoxication:

• the fact of intoxication at the workplace must be documented;
• an employee must be caught in a state of intoxication during working hours.

There are several categories of workers who cannot be fired for drunkenness at work - these are underage workers and pregnant women.

Loss of trust

This ground for dismissal is contained in paragraph 7 of Art. 81 of the Labor Code of the Russian Federation. It can only be used in relation to financially responsible employees - cashiers, salespeople, accountants, storekeepers, etc.

Loss of trust can be caused by:

• intentional misconduct - for example, weighing or cheating a customer in a store;
• negligence, careless attitude to commodity and material values ​​- for example, non-compliance with the conditions for storing perishable goods.

The guilt of the employee must be documented (act of audit, inventory, memorandum).

Theft

Theft is the theft of another's property. In this case, the employer is harmed.

From a legal point of view, theft has several varieties:

• theft - secret possession of another's property;
• robbery - open possession of property (with or without violence);
• robbery - attack on the owner of the property (with violence or with the threat of its use);
• fraud - receiving material assets by means of deceit or misrepresentation;
• appropriation - registration of ownership of property entrusted to an employee for any purpose.
• embezzlement - illegal expenditure or sale of entrusted property.

If the employer has revealed any of the listed violations, he has every right to dismiss the employee. But only under one condition - his guilt is proved by the court.

Only a court can recognize a person as a thief.

Job inconsistency

Dismissal for inconsistency with the position held can be in two cases:

1. for health reasons (the basis is a medical report);
2. due to insufficient qualifications (the basis is the results of certification or re-certification).

In the first case, everything is clear. Termination of labor relations on the second basis takes place in three stages:

1. carrying out certification, which determines how prepared an employee is for work;
2. summarizing;
3. registration of documents for dismissal, if the results of the certification were negative.

Did not pass certification - they will be fired for inconsistency with the position held.

The procedure for dismissal under the article

Dismissal at the initiative of the employer takes place in several stages:

1. Confirmation of the fact of violation

This may be a medical certificate of intoxication, an inventory act and other documents confirming the existence of grounds for dismissal under Art. 81 of the Labor Code of the Russian Federation.

1. Warning

This stage has its own characteristics, which directly depend on the reason for dismissal. For example, in case of absenteeism, the employer is obliged to take a written explanation from the employee. After that, the leader has a month to apply punitive sanctions. Only one penalty can be applied for each misdemeanor.

If a remark was made for absenteeism, then they can no longer be fired for it.

1. Familiarization with the order

The employer issues an order and sends it to the employee for review. The document indicates the reason why the employee is dismissed and the date of dismissal. He must sign the order. If the employee refuses, an appropriate act is drawn up.

1. Dismissal order

Legislation requires the issuance of two orders. The first must confirm the imposition of a penalty in the form of dismissal, and the second must confirm the termination of the employment relationship.

On the last working day, the employee must issue a work book and other necessary papers (certificate 2-NDFL, certificate of seniority, etc.), as well as calculate all due payments(salary, compensation for unused vacation, etc.).

If the employee believes, he has the right to appeal the decision of the head through labor inspection, prosecutor's office or court.

Do not agree with the dismissal under the article - apply to the labor inspectorate.

What threatens the dismissal under the article to the employee?

The minimum is a damaged reputation, the maximum is the inability to get a job. new job. Therefore, you should think a hundred times before drinking at work or not appearing at the workplace at all.

Remember that to dismiss under Art. 81 of the Labor Code of the Russian Federation is not so simple. Such dismissals are often illegal and carried out with violations. Therefore, you should not give up if you were expelled from work under the article - fight for your rights.

In order to exercise its right to dismiss employees whose work, for one reason or another, is ineffective for the company, the employer must remember that labor legislation provides him not only with rights, but also requires him to perform certain duties in relation to employees. After all, failure to comply with the requirements and non-compliance with legislative norms deprives the employer of the opportunity to initiate the dismissal of an objectionable employee and leads to serious financial losses.

Legal norms of dismissal "under the article"

The term “dismiss under the article” has migrated in our time from the Soviet and post-Soviet period, when this concept meant the severance of labor relations under the only thirty-third article of the Labor Code (Labor Code) at that time. Many believe that the entry in the work book under Article No. 33 of the Labor Code required the dismissal of the employee due to drunkenness and absenteeism, but this is not so. This section of the Code included all the grounds for terminating relationships at the initiative of the employer: from production reasons (liquidation and reduction) to grounds related to the fault of the employee (absenteeism, theft, etc.), and even the return to work of the main employee was also included in this article.

But the memory remained among the people that the presence in the work book of a reference to article No. 33 meant a labor stigma. This performance was used to intimidate negligent employees, as well as employees who did not obey the requirements of management.

Today, when all the grounds related to the termination of a working relationship at the will of the employer are divided into 12 paragraphs of Article No. 81, the question of what grounds of labor law can be attributed to the so-called calculation “under the article” is decided differently. To this conceptare included all articles of the Code, which are based on violations of labor discipline by an employee, and, as a result, the application of disciplinary sanctions to the violator.

To begin with, let's figure out what these sections of labor legislation are, the grounds for which can be qualified as a person's failure to fulfill labor duties. So, it is permissible to carry out the procedure for disciplinary sanctions, which are governed by the provisions of Articles No. 192 - the Labor Code of the Russian Federation, according to nine articles that are unpleasant for the employee. Moreover, such sections of the Code may apply to both all employees and certain categories:

1. Dismissal for a systematic “non-gross” violation committed several times, which is documented at least twice (section No. 81 of the Labor Code of the Russian Federation, paragraph 5 of part one), this includes:
   • non-compliance with the norms and terms of direct labor duties (disruptions in reporting, non-compliance with the requirements of an individual job description, etc.);
   • ignoring regulations, including technical, local acts, management orders, etc.;
   • non-observance of labor discipline (lateness, absence from the workplace, etc.).
2. For a serious violation committed once (Article No. 81, subparagraphs a - e of paragraph 6 of part one):
   • a) walking;
   • b) appearing at work in a state of alcoholic or drug intoxication;
   • c) disclosure of commercial, official or state secrets;
   • d) theft, embezzlement;
   • e) violation of labor protection standards.
3. Termination of the contract due to loss of confidence (section No. 81, paragraph 7).
4. Termination of the contract for an immoral act (applies only to teachers and educators) - paragraph 8 of article No. 81.
5. For blunders of managers that cause damage to the company, and failure by them (as well as their deputies) labor standards(Article No. 81, paragraphs 9 and 10).
6. Although in these cases no penalty is applied, the termination of the contract if false documents are found at the conclusion of the contract is also referred to as a break “under the article”. Since this can be safely attributed to incorrect working behavior.
7. Subject to "discipline" and dismissal "under the article" is a special case when a teacher violates the organization's charter (clause 1 of article No. 336 of the Code).
8. As well as the dismissal of disqualified athletes (for example, due to doping) - article No. 348.11.

It should be noted the obvious: all of the above grounds are included in the articles, the indication of which in the labor immediately raises fair questions from the personnel officer when hiring. This is a kind of "stigma" for a person. As a rule, when a future employer sees such a record, any explanations and comments of a person are not perceived. V best case a person is waiting for a less prestigious job, a lower salary and constant monitoring by the security service or direct management. At worst, rejection vacancies. Therefore, probably 90% of all claims of the dismissed, which are put forward against the decisions of the employer, relate to dismissal under any of these articles.

Dismissal "under the article" can be called a labor stigma, in connection with this, the violator of labor discipline is likely to have problems with further employment

We will not dwell on exceptional cases, consider the most common options, and start with the most used ones.

6 key grounds for dismissal "under the article"

The most common reasons for terminating an employment relationship are absenteeism, alcohol at the workplace, theft, etc. All these work violations are regulated by Article No. 81, subparagraphs "a - e" of the sixth paragraph of the Labor Code of the Russian Federation.

This is the most "strict" section for both sides. On the one hand, even for a single violation from the list of violations of paragraph 6 of the article, you can immediately terminate the contract. On the other hand, there are a lot of nuances that an employer needs to take into account when dismissing a person.

Moreover, as the Supreme Court of the Russian Federation stated, if it comes to trial, it is the employer who must collect and present evidence of the eligibility of such actions.

We will understand the terms and details that labor law uses in the application of these situations.

Absenteeism - the difficulties and nuances of dismissal

The Code defines absenteeism as being absent from work for more than four consecutive hours during one work shift without a valid reason.

On this basis, the employer has the right to terminate the contract with the employee "under the article" on the day the misconduct is discovered. True, we should not forget that dismissal for absenteeism is one of the types of disciplinary sanctions provided for and strictly regulated by the Labor Code of the Russian Federation. Therefore, dismissal on this basis should be carried out in accordance with Article No. 193 of the Labor Code of the Russian Federation, that is, fixing the fact of absenteeism must go through a certain procedure (in more detail, in nuances, we will consider this issue in a separate chapter on step by step instructions for the execution of any claim):

1. Act, service or memorandum of the head (colleagues), indicating that the employee was absent from work.

   The act indicates the specifics of the fact, the document is endorsed by at least two witnesses of the violation

2. Requirement to provide an explanatory note from the employee.
3. In case of refusal of explanations, an act is drawn up, fixing the fact that the employee refused to give explanations.
4. If the employer has difficulty understanding why a person is absent from work (it may happen that he is absent for a good reason), a demand is sent to him: to come to work to provide explanations for a long absence from the workplace.

   If personnel officers cannot find the violator, a requirement is drawn up: to appear and give an explanation

5. As soon as the person is properly notified of the recording of absenteeism, an order can be issued to terminate the employment contract.

   The order to terminate the employment contract lists all the grounds: services, acts, notification, etc.

The record of dismissal under subparagraph "a" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is recorded in the work book as a standard, without abbreviations and abbreviations. Possible wording with reference to an article of the Code:

• "fired for absenteeism";
• or “the employment contract was terminated due to a single gross violation of labor duties - absenteeism ...”;
• further, there is a correct reference to an article of the Code;
• visa responsible person, the dismissed employee and the seal of the organization.

An entry in the work book for subparagraph "a" (truancy) may look like this

The prerequisites for the issue of absenteeism are clear, there are much more nuances and subtle places here. Therefore, before preparing materials for dismissal for absenteeism, it is recommended to carefully examine and check all points.

Typical mistakes, or when it is impossible to fire for absenteeism

Please note that you should not dismiss an employee for absenteeism if at least one of the significant conditions for determining a person’s guilt is not established. Therefore, in order not to run into litigation, it is necessary to exclude all errors when dismissing on such a fact.

Summarizing the main points when an employer risks losing a lawsuit due to illegal termination of the contract, it should be noted that there is a rather extensive list of shortcomings for this. Here are the most common ones:

• The employee’s employment contract does not define the working regime (specific days of the week or schedule), therefore, the absence of more than four hours during the work shift cannot be proven, since it is not defined from what hour the countdown begins and which days are considered working days for the employee.
• The employee's contract does not define him workplace therefore, it is impossible to prove that the person was not there.
• When there are no arguments that the reason for absenteeism is really disrespectful: that is, a full-fledged step-by-step registration procedure has not been carried out disciplinary action or it was carried out with violations.
• If, after fourteen days after the employee submitted an application to terminate the contract at his own request (written application), the person did not appear at the workplace.
• Or a variant close to the previous one: a person does not go to work for a long time, and the employer cannot find out the reason for his absence. In this option, the personnel officer will not be able to legitimately dismiss the employee, since the absence of a person does not give him the right to do so: it is impossible to receive comments or testify that comments about the reason for absenteeism were requested but not given. Thus, until the employee goes to work, and the employer does not ask him for an explanation of the reasons, dismissal for absenteeism is not legitimate.
• Another narrow-minded argument is the serving of an administrative arrest, appointed in accordance with a court decision. This fact does not depend on the will of the worker, therefore it serves good reason absence from work. So, this fact cannot be considered absenteeism.
• During the period when the part-time worker is on a business trip to the main place of work, termination of the contract in this situation is illegal.
• Or another option: a person does not go to work for a reason when he does not agree with his transfer to another position or workplace - also a slippery option for the employer. Termination of the contract due to "truancy" will not work here, it is necessary to negotiate.

A separate issue here is when an employee is legally entitled to time off or vacation. Let's figure out what situations will not be recognized by the court as a violation of labor discipline:

• absenteeism to the workplace, if the company has a pre-agreed vacation schedule, and the person is resting according to the plan (it is impossible to make a unilateral ban in this case - just negotiate);
• you cannot refuse a person a day of rest if he participates in a donor program;
• you need to know that granting leave without pay to a working pensioner in accordance with part 2 of article No. 128 of the Labor Code of the Russian Federation is an obligation, and not the right of the employer;
• it is also recognized as the duty of the organization to provide additional leave in case of marriage registration.

In the judicial practice of dismissal for absenteeism, there are cases of recognizing the rightness of both the employer and employees. We present both solutions.

Thus, the court recognized the dismissal as legal when the employee, being on a five-day business trip, finished it 2 days earlier, but, returning to the city where the company was located, went to work only at the end of the period indicated on the business trip sheet. The court recognized these 2 days as absenteeism and did not reinstate the person in his position (see court case No. 33–4247/2011).

At the same time, when a retired teacher who was fired for absenteeism managed to prove that he skipped work for health reasons without taking a certificate of absence, the company had to reinstate him at work and pay him all the compensation due, including moral damage (with the definition of the court in case No. 33-7511 can be found).

Photo Gallery: Reinstatement Claim Form

In the statement of claim, you can indicate all the requirements, for starters, reinstate at work (part 1) Requirement No. 2 of the statement of claim may be the payment of salary for the time of forced absenteeism (part 2) You can also indicate in the claims and compensation for moral damage (part 3 of the statement)

Alcohol at work - a simple scheme for dismissal

Termination of the contract due to the use of alcohol or drugs in the workplace (or on the territory of the enterprise) is usually much easier. It does not matter here when the person was convicted of this: at the beginning or at the end of the work shift (at least 5 minutes before the end of the working day). It does not matter whether the employee was released from his function due to the specified condition or continued to work. If desired, the employer can do this at any time.

In this variant, the violation fixing algorithm will be as follows:

• if possible, a medical examination is carried out, for this it is even allowed to call ambulance, and it should be noted that other evidence may be accepted by the court;
• an act is drawn up confirming that the employee was drunk at work, which is endorsed by two witnesses;
• from the offender is requested explanatory letter;
• an order is drawn up and endorsed on the fact of the use of DV;
• an order is issued to terminate the contract with the employee.

The basis indicated in the labor: Dismissed for a single gross violation of labor duties - appearing at the workplace in a state of alcoholic (drug) intoxication, subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

In the work book, you can indicate the specific reason for dismissal (alcohol) or simply put the details of the article of the Code

Usually, employees do not go to court during such a dismissal, since it is almost impossible to prove the opposite if the fact took place and it is correctly recorded.

Privacy Violations

A more interesting option for consideration is the disclosure of legally protected secrets (commercial, official, etc.), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee (subparagraph "c" of paragraph 6 of part one of Article No. 81 of the Code).

Several points are important at this point:

• v labor agreement there must be a requirement for non-disclosure;
• it also clearly states what is considered a secret;
• Confidential data refers only to information obtained by a person in the performance of their official duties(for example, a company's trade secret may include a customer base, sales volumes and dynamics, profits, market intelligence purchased or developed using internal resources, etc.).

If at least one of the listed points is not met, the termination of the relationship under this sub-clause may be declared illegal. As with the rest of this article, it is up to the defendant company to prove the eligibility of applying for dismissal on this basis.

Note that it is impossible to terminate the contract if:

• there is no list of information constituting a commercial, official, other secret;
• if the disclosure of the employee's personal data occurred as a result of their improper storage, since the employer is responsible for organizing the storage and use of employees' personal data.

Therefore, it is important: in order to be able to apply a penalty to an employee, the company must develop a regulation for the protection of confidential information. It is introduced by a local regulation, with which all employees must be familiarized against signature. The absence of such a document may be the basis for the cancellation of the application of the penalty in court.

Theft is a reason for dismissal

Breaking an employment relationship due to theft or embezzlement is a rather time-consuming and lengthy process for an organization. And even taking into account the fact that the theft of both corporate and other people's property (including colleagues or clients) can be recognized as the basis, it must be borne in mind that dismissal under this article will be recognized as legal only when the court decision comes into force.

Therefore, it is not enough to catch the thief by the hand, in order to dismiss him under the article, you need to get a decision from the competent authority. So, having in hand an act of private security that recorded the fact of theft, it will not be possible to justify the legality of the dismissal of the offending employee, since this service does not have the right to apply administrative penalties. Consequently, it is possible to dismiss a stealing employee only within one month after the court decision.

The entry in the labor goes in this case under the letter "g" (the article is still the same - eighty-first, part one, paragraph 6).

The wording in the labor when passing a court sentence on the basis of "theft" is registered as follows

At the same time, the legislation makes it possible to present claims to the offender for compensation for damage to the company, we will give an example of a statement of claim.

Photo gallery: claim for compensation for damage caused by an employee

In the statement of claim, you need to state everything on the merits of the case (example, part of the statement No. 1) In the lawsuit, you need to provide evidence (example, part of the statement No. 2) Make demands (example, part of the statement No. 3) In the final part, list the attached documents (example, part of the application No. 4)

Dismissal for committing an immoral offense

Please note that only employees performing educational functions (teachers, teachers, mentors, educators, nannies, etc.) can be fired for committing an immoral offense.

Employees performing technical and auxiliary duties (watchman, driver, accountant, etc.) cannot be dismissed on this basis (paragraph 46 of the Decree of the Plenum of the Supreme Court No. 2 of 03/17/2004).

The concept of "immoral act" is not defined in the legislation. Therefore, the employer independently decides what offense should be considered immoral. In practice, immorality is recognized:

• petty hooliganism;
• drinking alcohol in a public place and involving minors in it;
• fights, scandals;
• animal abuse;
• taking drugs;
• foul language in the presence of children, etc.

It does not matter where the offense was committed: at work, on vacation or at home.

In the work book in this option, the basis is indicated - paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation.

Beating a child in a family can be difficult to prove, but such “fathers” must be fired not only from teaching work, this is already the prerogative of the Criminal Code of the Russian Federation

Dismissal of unscrupulous employees for repeated misconduct

There are cases when an employee sabotages the orders of the management, refuses to fulfill his official duties, is absent from the workplace for a long time, and is clearly not eager to fulfill his labor duty, but he comes to receive his salary regularly. With such behavior, the employer has the right to dismiss the negligent employee under paragraph 5 of article No. 81 (repeated failure by the employee to perform labor duties).

You should be aware that when applying such a basis, the following prerequisites must be met:

• violation of labor discipline must be recorded on paper;
• it follows from the wording of the grounds that the committed offense must be registered at least 2 times;
• moreover, it is important that the fact of the first (or previous) violation was recorded no more than a year ago;
• Non-gross disciplinary violations are considered:
  • failure to comply with the instructions of the immediate supervisor, which relate to his direct functional duties fixed in the job description or in the labor contract, failure to meet the deadlines for completing work or submitting reports, other actions that disrupt the work rhythm of the enterprise;
  • frequent unreasonable leaving of the workplace and violation of internal regulations: being late, leaving work before the end of the shift, constant tea drinking, etc .;
  • refusal or evasion of a medical examination of an employee who is in a certain position requiring mandatory examination, or when an employee refuses to undergo (during work) special training, pass qualification exams in health, safety, civil defense, etc.;

Please note: a disciplinary sanction includes, among other things, a person’s refusal to undergo a scheduled or unscheduled certification, if it was established by a local regulatory act of the enterprise. That makes it possible to fire a person who, in the opinion of the employer, does not meet the proper qualifications. To do this, during the year you need to make at least 2 penalties (for any of the above reasons).

Algorithm for applying disciplinary action and subsequent dismissal

Let's look into the question: how can an employer competently confirm a disciplinary violation and legally terminate an employment relationship on the basis of an employee's failure to perform official duties.

Step-by-step instructions in case of dismissal "under the article" are as follows:

1. For the initial registration of a violation of discipline by an employer, acts of misconduct, which are confirmed by two witnesses, can be used. These include the following documents: memos or memorandums, reporting data, results of audits, etc. If the subordinate has not completed the specific task assigned to him, it is written memo. When an employee has not been in place for a long time, an act is drawn up. The report describes the offense committed, indicates the date and place. In this case, it is recommended to refer to a specific item in the job description, contract or internal regulation that was violated.

   The report can be drawn up on the basis of non-fulfillment of official duties by employees, do not miss the moment that 2 witnesses of the incident must sign on the original

2. The next step is to get an explanation from the employee about the reason for the violation, this must be done in writing (Article No. 199 of the Code). It is advisable at this point to draw the attention of the person that if he does not give an explanation, this will not affect the result, and the DV will still be applied. You can do this in the notification. If the violator does not want to sign the notification, an act of refusal is drawn up.

   In the notification of the provision of explanations, all violations must be indicated (if there were several, as in the example)

3. After 2 working days, if an explanatory note has not been provided, an appropriate act is being prepared.

   If the employee refuses to sign the notification, the text is read aloud to him in front of witnesses, this is enough for notification, an act of refusal is drawn up

4. If the violator of labor discipline nevertheless provides an explanatory note, it is sent to the immediate supervisor, who imposes a resolution on the decision made on it and appoints executors for it. Example: “To the head of the personnel department I.I. Sidorova. The justifications given in the explanatory note are considered disrespectful. Issue an order to impose a penalty - a reprimand. Deadline - April 10, 2018 (signature, date)."

   In an explanatory note, a person can reasonably say about the reasons for committing a disciplinary offense

5. As soon as the explanatory note or the act of refusal enters the personnel department, an order is issued to apply a disciplinary sanction (remark or reprimand) to the violator. unified form there is no such solution.

   The order for disciplinary action shall indicate all the details of all previous documents.

6. The next step is to familiarize the person with the order to issue him a DV. The personnel officer is given 3 working days for this (from the date of publication of the document). If a person does not want to endorse the decision, this is reflected in an additional act.
7. In the event of a serious violation, providing for dismissal after a single violation (Article 81, paragraph 6), you can immediately issue the next order - to terminate the contract. If the DV is less serious, it is necessary to fix the second misconduct according to the same principle (not necessarily on the same basis as the first). At the same time, you need to know that no more than one year should elapse between the first and subsequent violation. The next DV is drawn up in the same way as the first, while the documents indicate that the offense was not committed for the first time. For example: “Since I.I. Sidorova in February 2018 was already involved in disciplinary responsibility, I consider it necessary to dismiss her for repeated failure to fulfill her labor duties under paragraph 5 of Article No. 81 of the Labor Code of the Russian Federation.
8. Next comes the order to apply a disciplinary sanction, but not in the form of a reprimand, but already with a resolution - the termination of the employment contract under a certain article.
9. The next - final document will be an order to terminate the employment contract with the employee (in the form No. T-8).

   An order to terminate an employment contract with an employee is issued in a standard way, indicating the article and the full reason

10. The final step is the registration of labor and settlement on the day of dismissal, which includes wages for hours worked and compensation for vacation days not taken off.

It is important for both parties: the employer has the right to deprive the bonus, issue a remark or reprimand and dismiss “under the article” even if the person has applied for resignation of his own free will. Norms labor law define here that the relationship between the employee and the employer is terminated only two weeks after the submission of the application. Therefore, violations committed during work can be qualified and accepted for dismissal under “bad” articles.

What you need to know when dismissing "under the article"

Each section of the Labor Code of the Russian Federation, which regulates the termination of an employment contract, has its own fundamental principles and nuances. So, for all the reasons for the termination of labor relations under articles compromising the employee, there are a number of common points, which include:

• The main thing during the procedure is the passage of all stages of imputation of a disciplinary sanction to a dismissed employee. As already mentioned, in some cases one serious misconduct is enough for this, in others - at least two.
• Article No. 192, which defines the forms of DV, refers to penalties only 3 types:
  • a remark - necessarily fixed in writing - is the most loyal punishment;
  • a reprimand that must be documented is the next step in severity;
  • dismissal "under the article" is the most serious DV.
• The next important point is that the termination of an employment relationship “under the article” should take place only if there is a solid evidence base; in this option, when substantiating the legitimacy of the decision, the employer must have a complete package of documentation drawn up in accordance with all legal requirements. The employer thus provides himself with insurance if the dismissed person goes to court. The documents in the hands of the defendant will become real proof of the correctness of the employer.
• At the same time, the company (personnel officers), when terminating the contract under any of these articles, must have a set of documents accompanying labor activity, as well as local regulatory legal acts and regulations:
  • job descriptions, if a person is “left” due to non-compliance;
  • Confidentiality clause in case of termination of the contract in case of violation of trade secrets;
  • internal regulations - if you plan to dismiss an employee, for example, for being late, etc.
• Fifth - time limit after collection:
  • the employer is given the right to dismiss a person within one month, as soon as the fact of violation has been witnessed (the first and only or subsequent);
  • moreover, this time does not include periods when a person was on sick leave (an exception is a sheet for caring for a family member, this period is taken into account in this calculation), was on vacation, as well as days when the necessary opinion of the trade union was taken;
  • but under all the above conditions, recovery cannot be made after the expiration of six months;
  • the exception here is a reprimand issued as a result of an audit or financial audit, in this option, the employer has 2 years (the period of the lawsuit is not included in this period).
• Sixth, the basic rule for imposing a disciplinary sanction must be observed: the list of DV is exhaustive, therefore the employer does not have the right to apply other types of punishment (fines, deprivation of bonuses, etc.) to the violator. Only one penalty can be applied for each violation.
• You should also keep in mind the consequences: when committing a labor offense and imputing an employee to a DV (it doesn’t matter if it’s a remark or a reprimand), the employer has the right not to pay incentive payments to the employee in full or in part, but only if in local regulations provided, and in case of repeated (within one year) violation of labor discipline, dismiss the employee (clause 5 of the first part of Article No. 81 of the Labor Code of the Russian Federation).
• You need to know that any employee can be fired “under the article”, if desired, including categories that enjoy indulgences for dismissal under other articles (single mothers, part-time mothers with children up to three years etc.). At the same time, it should be borne in mind that dismissal for any reason (with the exception of the liquidation of the company) is prohibited:
  • during the period of a person's stay on vacation (annual paid or unpaid, to care for a child until he reaches the age of three years, as well as on study leave);
  • during the sick leave, and you need to know that this rule does not apply to cases of a bulletin for caring for a sick family member, during this period, dismissal is possible.
• Penalties are not included in the labor (unless, of course, this is the final stage - dismissal).
• And the last thing: any type of DV (with the exception of dismissal, of course) has a statute of limitations - 1 year from the moment it was discovered and documented. After this period, the levy is considered paid off.

We recommend that all personnel officers who carry out dismissal "under the article" know these principles. After all, one mistake during such a procedure can be fatal for the employer. Arbitrage practice quite often it is replete with decisions not in favor of the company, where even the most insignificant deviations from the requirements of labor law were made.

How and where to challenge the dismissal "under the article" - the word to the lawyer (video)

Employer's liability for illegal dismissal

Much has already been said above that when dismissing people, especially under articles with serious consequences for the employee, personnel officers need to be especially careful and legally savvy. It is known that in proceedings and litigations, as a rule, the courts take the side of employees. And this is especially true if the employer has prepared a weak evidence base.

What is wrongful dismissal?

• reinstatement of a dismissed person (and whether or not to return to the company, the person himself decides at the time of filing a complaint or at the time of making a decision);
• if it is recognized that a person was suspended from work illegally, he is paid a salary for the entire time of forced absenteeism;
• accordingly, the employer will be obliged to restore the experience lost during forced absenteeism and calculate for this time due days holidays;
• if the workplace of an illegally dismissed person is occupied, the enterprise will have to release him (it is possible to return a person by transfer to another position only with his consent and without a reduction in salary);
• a person can demand compensation for non-pecuniary damage from the company (this is enshrined in article No. 394 of the Labor Code of the Russian Federation).

In addition, there are penalties for the employer for late payment of severance pay (Article No. 140 of the Code), retention of a work book (see), etc.

There are enough articles for the dismissal of negligent employees in the Code. But self-activity is not allowed here. Firstly, labor legislation clearly regulates every step of the administration when terminating an employment contract, and violations here instantly turn against the initiator. And secondly, driven into a corner by a “bad” article, a person will try with all his might to restore justice. And if there is at least one gap in the actions of the employer, the dismissed person will definitely try to use it.

Dismissal under the article, as stated by the Labor Code of the Russian Federation, implies the employer's initiative aimed at terminating the employment relationship with his subordinate. For dismissal from work under the article of the Labor Code of the Russian Federation, grounds are required that are actually confirmed and proven, otherwise the employer will face Negative consequences. The reasons for such dismissal are enshrined in the labor law and represent an exhaustive list that cannot be supplemented or changed at the initiative of the employer. Accordingly, dismissal under the article should always be based on three important moments: grounds, procedure and consequences that are provided for each side of the relationship.

Reasons for dismissal

To dismiss an employee under the article, it is necessary to have a clear idea of ​​when such a procedure can be carried out, and what grounds are provided for terminating an employment relationship without the consent of the employee himself. The law does not prohibit employers in this way from deciding the fate of the people they want to fire, but it should be remembered that the variant of relations under consideration is regulated as detailed as possible, and each proposed action has its own rule, the violation of which will entail an appeal to the labor inspectorate or even the court .

To fire an employee means to end the relationship with him, but this requires the presence of any legal facts, which will be the grounds enshrined in Article 81 of the Labor Law.

These include the following provisions:

If we talk in more detail about violations of the labor schedule, then they are understood as:

Can they be fired for other reasons? This list is by law not exhaustive. In some situations, the question of why to dismiss a person, whether his act is a sufficient reason for this, and what can be done as a result, is often decided by the Commission on labor disputes.

For dismissal, the presence of a person at work is required. If he is on vacation or does not fulfill his duties due to temporary incapacity for work, then termination of the employment relationship is unacceptable.

Speaking of other reasons that may also serve as grounds for unilateral dismissal, it should be noted that such circumstances are recognized as exceptional. These include any violations of labor legislation, since the Labor Code of the Russian Federation directly establishes the possibility of referring to any of its norms if it is necessary to resolve a labor dispute, including in terms of dismissal of an employee without his consent to this.

Dismissal procedure

How to fire a person without his consent to it? Here important factor the initiative of the employer plays, which is necessarily supported by one of the grounds proposed by law. It is not prohibited without a voluntary application of a person to terminate any employment relationship with him. However, in addition to the circumstances that allow a person to be fired, it is necessary to remember the procedure itself, which must take place in strict accordance with the established requirements. If this rule is not observed, then the very fact of dismissal will be invalid.

In order for the employer to avoid problems with the court in the future, he must submit all documents to the employee in a timely manner and officially indicate the fact of dismissal.

The action plan for termination of employment with a person at the initiative of the employer is a series of steps that must be completed in each case of dismissal:

1. Establish reasons for dismissal. Here it is necessary to prove the fact of violation. The method of fixation will depend on what misconduct was discovered. For example, intoxication must actually be identified and established, it is not enough to prove that a person consumed alcohol that day, or theft at work will be a reason for dismissal only if there is a guilty verdict already at the end of the trial.
2. Employee warning. Such a step is mandatory, but its features will depend on what kind of violation is detected. For example, when a company ceases to operate, it is necessary to notify the person, and two months in advance, and if the person does not work, skips work or has other similar misconduct, then one month is enough.
3. Familiarization of the employee with the notice of termination of employment with him. To do this, the employer is obliged to prepare an official document that will reflect the reasons for dismissal and their detailed explanation. The employee must sign such a document, this will confirm the fact that he has familiarized himself with the paper, even if he does not agree with such a decision. If a person refuses to sign a document, then it is drawn up again, but in the presence of witnesses who in the future could confirm the fact of refusal.
4. Explanation from the employee. The employer has the opportunity to demand explanations about the misconduct that the person has committed. However, according to the law, the employee is not obliged to do this and can always refuse, such acts will not be recorded by any acts. At the same time, the absence of an explanatory note does not release the person from the responsibility imposed on him. disciplinary punishment.
5. Dismissal order. Ideally, there should be two such documents. One order must reflect the decision to apply a disciplinary sanction, and the second order directly terminates any employment relationship. However, in practice, most often only the second version of the order is dispensed with without a detailed indication of the application of punishment. The employee must also familiarize himself with the order and sign it, otherwise it will be a violation of his rights. In addition, the order must be accompanied by a note-calculation, explanatory notes, if any, and other relevant documents.
6. Recording in the labor and its issuance to the employee. Be sure to pick up your work book on the day of dismissal. In it, the personnel officer puts down a record of the fact of dismissal with a reference to the reason for the termination of relations with the employee. Dismissing under the article, it is always indicated exactly which rule applies. When it comes to violations, article 81, its specific part and a paragraph reflecting the type of misconduct should be indicated. The record must be certified by the seal of the organization and the signature of the management, and it is also necessary to indicate the number of the order.
7. Payment. Even if a person is fired for misconduct, he is still entitled to payments, which include wages for the period worked before the day of dismissal, as well as compensation due for unused vacation. Moreover, if a person missed several of his vacations, then compensation is charged for each of them. When it comes to the termination of the entire company or the reduction of part or all of the staff, it is also paid severance pay. Payments must be made on the day of dismissal, at the same time the employer must pay taxes.

It is unacceptable to skip any of the specified stages, the presence of each specified document will be a confirmation that the termination of relations is legal, and the interests of the employee were not violated, despite the reason for dismissal.

Consequences

What to do if you were fired under the article, and what threatens such a decision for the dismissed person in the future? The consequences may be different, but first of all, this is a spoiled characteristic and difficulties that arise during subsequent attempts to get a job. However, depending on how the procedure was carried out and how justified the decision to terminate the employment relationship, negative consequences may overtake the employer himself. Often, mistakes and violations of the labor law lead to material compensation, inspections, and even a change in leadership.

Dismissal under a compromising article is always considered a negative phenomenon, if in the future, in connection with this, a refusal to hire will follow, then it will not be possible to recognize it as illegal.

The very fact of designating an article in the labor at dismissal is not negative. It is always prescribed, even if the termination of the relationship occurs at the request of the employee himself. The only difference is in the rules of law.

And it is precisely depending on the reasons and the articles of the Labor Code used, respectively, that the consequences for the person who has lost his job will be determined:

Accordingly, the indication of an article in a work book does not always imply negative consequences for a person who has lost his job. It all depends on the specific grounds and conditions for terminating the relationship in question.

If an employee does not agree with the decision made regarding the termination of his work, he can always challenge it first in the Labor Disputes Commission, and then in court.

Despite the free opportunity to protect their interests as an employee, there is only a limited list of cases where a challenge is, in principle, permissible. Firstly, situations where the reason for dismissal is poor evaluation results. Here it is allowed to contest the results themselves, but only no later than ten days from the moment of their announcement. Secondly, violation of the law by the employer. It is enough to prove that the dismissal procedure was illegal and groundless. And thirdly, cases of theft. If you challenge a sentence that finds a person guilty, then you can challenge the decision to terminate labor activity.

Thus, stopping work on the article does not always mean that there will be negative consequences. The considered option of dismissal is connected both with the personal desire of a person to leave work, and with the initiative of the employer, who, based on specific reasons, decides to get rid of the employee. The main thing is to follow the dismissal procedure and have grounds for such a decision, otherwise the actions of the management will be challenged and will be invalid.