LABOR CODE

In what cases can an employer fire an employee?

“I’m interested in in what cases an employer has the right to fire an employee. I would like to receive detailed information" Sergey Viktorovich (Kursk).

Answers Senior Assistant Prosecutor of the Seim District Anzhelika Ovsyannikova:“An employer does not have many grounds on which he can dismiss employees on his own initiative. Their list is determined by Article 81 of the Labor Code of the Russian Federation. In addition, there are additional grounds for dismissal of certain categories of workers. The list of these grounds is clearly limited, and in almost all cases the employer is obliged to justify the dismissal and follow a strictly defined procedure, no matter whether it is a reduction in staff or disciplinary sanctions. Unlike an employee, an employer does not have the right to terminate employment contract, guided only by one’s desire without sufficient grounds.

Thus, an employment contract can be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activities individual entrepreneur;

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

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

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

5) repeated failure by an employee to fulfill his job duties without good reason, if he has disciplinary action;

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

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

b) the employee appears at work in a state of alcohol, drug or other toxic intoxication;

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

d) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

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

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

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

9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

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

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

12) provided for in the employment contract with the head of the organization, members of the collegial executive body organizations.

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

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I have a question, I work in oil industry Rosneft company I passed a medical examination, as a result of which an order was issued against me not to engage me in work at heights due to my eyesight I will probably be fired (

Hello, I work at a microfinance company, on my legal weekend there will be a meeting that I cannot go to for personal reasons, having notified my superiors about it. I received an answer: write a letter of resignation, supposedly attendance is mandatory, but there is no such condition in the employment contract and in the company regulations, even if they create it, my signature is not available for review, please tell me what to do in such a situation

You will need

• - Labor Code of the Russian Federation;
• - consultation with an experienced personnel officer;
• - Labour Inspectorate;
• - reports on work, testimonies of colleagues.

Instructions

First, you need to figure out how a dismissal can be formalized. The wording, laws, articles are different, and there are nuances. So, you can be fired “by”, “by agreement of the parties”, “in connection with staff reduction”, “in connection with the liquidation of the enterprise”, “under Article 81 of the Labor Code”. Each of these cases has its own subtleties.

If you are offered to resign voluntarily, the employer expects to get rid of you with little loss, that is, not to pay you what you are owed. "Dismissal due to at will" - a formulation that suits all employers without exception. Of course, they pay exactly as much as you work when you quit. If the employee does not want to sign the statement, he may be offered “dismissal under the article.”

If you intend to, offer the employer dismissal “by agreement of the parties” and write down your terms in the agreement. In the conversation, you can hint that you know how difficult it is to fire a person “under the article”, and what strong evidence your employer must have. It’s great if you belong to a preferential category of citizens: you are pregnant, raising a child alone, or if you are a mother of many children. Then it is almost impossible to fire you.

If the employer does not agree to these conditions, you should remember whether there were any violations or miscalculations in your work history over the last month or two. What to look for Special attention: you must not be late, your absence must be documented accordingly, and your performance of duties must strictly comply with the employment contract you signed. Do not sign papers without looking; when going on a business trip, get a travel certificate.

If you are fired due to staff reduction (clause 2 of Article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer is obliged to notify you of dismissal in advance, offer you another job, identify beneficiaries, report the layoff to the employment service and pay you severance pay in the amount of several salaries upon dismissal.

If you want to be fired upon liquidation of the enterprise, you must also be notified of this no later than 2 months before the dismissal. You have every right quit early, receiving your salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties occurs in accordance with Article 77 of the Labor Code of the Russian Federation, paragraph 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with your employer. A written agreement is concluded that states when you will be fired and what monetary compensation you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You may be fired if the owner of the enterprise changes (Article 81, paragraph 4), if you are the general director, deputy general director or Chief Accountant. You may be fired for inadequacy for the position held (Article 81, paragraph 3). Then they should assemble an certification commission for you, which will come up with a test task for you. Even if you fail to cope with it, they cannot fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your job duties. Remember, in order to be fired, the violations must be regular and without good reason. In addition, you must have formal disciplinary action.

You may also be threatened with dismissal for absenteeism or tardiness under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is only possible if you did not provide any documents explaining why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles under which you can be fired are “Theft and Embezzlement” and “Loss of Trust.” They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you do get fired, you have every right to continue to fight. Within a month from the date of dismissal, you can sue your employer. You also need to contact the labor inspectorate and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

note

1. If you do not come to work, be sure to confirm the validity of the reason for your absence.

2. Read your employment contract and job descriptions again.

3. Don't be afraid to stand up for your rights.

Helpful advice

If you feel that clouds are gathering, document every step and decision you take.
- Avoid disciplinary action.
- Avoid being late.

Sources:

• How to competently fire an employee?

It's always unpleasant to lose a job. And it doesn’t matter for what reasons this happened. Someone gets laid off, someone is fired for some professional or job inconsistency, someone submits a letter of resignation themselves. But time passes, and the search for another job begins.

You will need

• - summary;
• - covering letter

Instructions

Resist the temptation to constantly feel sorry for yourself. And don't let the guilt of losing your job overwhelm you. This happens to almost everyone. Even if you don’t, it’s not a fact that this is always a fair decision on the part of the authorities. But let such thoughts remain in your head only for a short time. This is already in the past. The next step is to find a new place. You need to approach this event very responsibly. Simply put, the search itself new job needs to be turned into a kind of work.

Think about your priorities and areas of desired work. You may need to broaden your search beyond just your previous major's profile. Based on your experience, education,... If you can't find permanent job, a good solution is to get a temporary job.

Prepare. If you've never created one, seek professional help or look at examples online. A well-written resume that reflects all your professional skills can be a decisive factor in accepting a new position. If possible, take a cover letter or references from your previous job. You can agree with your work team to recommend you as a specialist if the need arises.

Look for work through labor exchanges, employment newspapers, Internet sites, employment services, and also take advantage of personal connections and acquaintances. If you're stuck, don't waste time: try to learn something new. Go study and learn the basics of another specialty.

If you were fired for any violation of labor discipline or administrative misconduct, this may have a negative impact on getting a new job. But at the interview you can explain in more detail the reasons for the situation that has arisen. You shouldn't talk about this in advance. It is quite possible that it is in your new job that you will be able to show all your talents and abilities.

Video on the topic

due to inadequacy for the position you occupy, do not engage in self-flagellation, analyze your work in the organization, perhaps you were lazy a lot, wasted time, treated your work carelessly. Understand the reasons that caused such an attitude towards work; perhaps you chose an unsuitable field of activity, or you were not satisfied with the organization of work in the company. Take this into account when searching for a job in the future, ask questions that interest you immediately during the interview so that the situation does not repeat itself next time. If you do not agree with the reason why you were fired, go to court. But the employer cannot fire you without good reason. After your dismissal, rest for a few days and put your thoughts in order. If possible, contact us to better understand yourself. As soon as you have rested, start looking for a new job: write a resume, post it on employment sites, study the labor market, respond to vacancies that interest you. Perhaps dismissal from your current job will serve as an impetus to radically change your field of activity, take care of your health or business. In such a situation, it is very important not to withdraw into yourself, but to choose a goal and gradually achieve it.

In case of violation of the labor code, as well as rules internal regulations and discipline, the employer can dismiss the guilty employee under the article. All guilty actions of the employee are specified in Art. 81 Labor Code of the Russian Federation.

Legally, such a term as “dismissal under an article of the Labor Code of the Russian Federation” does not exist in practice. There is always a clear reason for dismissal. Therefore, if an employer forces you to resign “of your own free will”, threatening to fire you “under article”, without explaining the reasons, then you can always file a complaint with the labor inspectorate.

If the employee’s guilty actions do occur, then they must be clearly documented and reflected in the documents for dismissal “under the article”.

In Art. 81 of the Labor Code of the Russian Federation lists all the grounds when an employee can be dismissed for committing guilty actions. This:

• absenteeism or absence from work without good reason;
• repeated refusal to perform one's direct job duties;
• violation of internal regulations. The employer must familiarize the employee with this document, as well as the job description, against signature when applying for a job;
• appearing at the workplace in a state of alcohol or any other toxic intoxication. This violation must be confirmed by a medical certificate;
• disclosure of commercial or state secrets. Dismissal on this basis is possible only if the employee signed a “non-disclosure” document;
• committing theft of property entrusted to an employee;
• violation of labor protection. This must be established by labor inspectors or members of a special commission;
• committing immoral acts teaching worker;
• committing other guilty actions specified in Art. 81 Labor Code of the Russian Federation.

If an employee commits any guilty actions, the employer must “record” each step of the dismissal procedure and document it.

First of all, it is necessary to draw up an act in which the fact of violation will be recorded. This act must be signed by the head of the unit where the perpetrator works and two more witnesses.

After this, it is necessary to request a written explanation from the offending employee about what happened.

This act and explanatory note are sent directly to the employer or his representative at the enterprise ( to CEO). The employer must decide to impose a disciplinary sanction or dismiss the offending employee.

Based on the act, the employer issues an order to dismiss the employee. The employee must sign the order. If he does not do this, then the employer again draws up an act of the employee’s disagreement to sign the order.

The employee is fired on the date specified in the order. At the same time he is paid:

• wages for the number of working days actually worked in the month of dismissal;
• compensation for missed vacation.

An employee dismissed “under article” is not entitled to any severance pay.

If the employee’s guilty actions led to damage to the employer’s property, the latter may recover material damages from him. To do this, you need to conduct an assessment of the damage, and attach this document to all documents for dismissal.

If the reason for dismissal is the employee’s intoxication, then it is necessary to call doctors so that they record this condition of the employee.

If the reason is theft, then you need to call the police so that they record the fact of the violation.

The employee's guilt must be proven by any legal means:

• documents;
• testimony of witnesses;
• video shooting and so on.

After signing the dismissal order, the employment contract is terminated on the day specified in the order. Despite the employee’s guilty actions, the employer must provide him with copies of all documents that confirm labor activity of this employee from this employer. These copies are issued to personnel service upon a written request from the employee.

In accounting he must receive:

• a certificate in form 2-NDFL to provide tax deductions from the new employer, if the employee is entitled to them;
• a certificate in form 4H, which will indicate the employee’s income for the last 2 years. This certificate is needed for the new employer to correctly calculate sick pay;
• a certificate of income for the last 3 months - in case the employee plans to register with the employment center.

On the day of dismissal, the employer must make a full settlement with the offending employee and give him a completed work book. It should contain, for example, the entry “dismissed in accordance with paragraph 6a of Art. 81 of the Labor Code of the Russian Federation,” as well as the number and date of the dismissal order.

But first, let's agree on concepts. Of course, legally there is no such term as “dismissal under article”. The fact is that any legally formalized separation of an employee and an employer occurs under one or another article of the Labor Code (here we will limit ourselves to standard labor relations, described Labor Code and we will not consider other contractual relationships). Typically, dismissal “under an article” means dismissal under a “bad” article of the Labor Code of the Russian Federation, which in one way or another negatively affects the employee’s reputation in the labor market. It is these “bad” articles (or rather, points) that we will analyze today. So, Article 81 of the Labor Code clearly defines the reasons why an employer can dismiss an employee. So, for example, paragraph 4 of this article states that the director, his deputies and the chief accountant can be fired when the owner of the organization changes. But in this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article. When an organization is liquidated, everyone is subject to dismissal, including pregnant women and young mothers. Reducing the number or staff is a separate topic. Read more about this in the article “Reduction at your own request.” But today we will talk in more detail about what articles employers most often “scare” employees, forcing them to write “of their own free will.”

Myth No. 1. We will fire you for inadequacy of the position.

Myth No. 2. Failure to fulfill job duties

1. comments;
2. reprimand;
3. dismissal for appropriate reasons.

• employee illness,
• his stay on vacation, as well as
• the time required to take into account the opinions of the representative body of workers.

• repeated;
• without good reason.

Myth No. 3. Dismissal for being late or absenteeism

Myth No. 4. Theft and embezzlement

Myth No. 5. Loss of trust

Other reasons for dismissal:

1. The appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication (clause B, clause 6 of Article 81 of the Labor Code of the Russian Federation ).
2. Submission of false documents by the employee to the employer when concluding an employment contract (Clause 11, Article 81 of the Labor Code of the Russian Federation);
3. Disclosure of secrets protected by law (state, commercial, official and other) that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee (clause B, clause 6, article 81 of the Labor Code of the Russian Federation).
4. Violation of labor safety requirements by an employee established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph D, paragraph 6 of Art. 81 Labor Code of the Russian Federation).
5. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation).
6. Making an unjustified decision by the head of an organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).
7. A one-time gross violation by the head of an organization (branch, representative office) or his deputies of their labor duties (clause 10 of Article 81 of the Labor Code of the Russian Federation).

1. If you find yourself in disgrace, document your every step and decision.
2. Do not be subject to disciplinary action. One lateness is an accident, two latenesses are a system.
3. Absenteeism without good reason is grounds for dismissal.
4. Read the employment contract.
5. Study job descriptions.
6. Stand up for your rights.

Where to complain and where to defend your rights

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

Now there will be fewer of us...

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

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

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

Inconsistency...

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

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

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

Failure to comply...

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

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

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

comments, reprimand or dismissal for appropriate reasons.

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

a) repeated;

b) without good reason.

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

Ivanov, late again!

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

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

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

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

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

Theft and embezzlement

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

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

Unsuitability

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

Be careful!

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

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

What is written with a pen...

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

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

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

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