How to fire when an employee does not want to leave. How to fire someone from your job

10.10.2019

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Stanislav Sazonov

What is the danger of layoffs?

When you fire an employee, there may be negative consequences for you as an employer.

1. Even if an employee is fired legally, he complains to the labor inspectorate, and when checking the correctness of the dismissal, they find errors in the preparation of employment documents (orders, employment history and so on), a fine will be imposed:

for you as an individual entrepreneur - from 1000 to 5000 rubles; from 5,000 to 10 thousand rubles for the absence of an employment contract or for errors in it;

for you as the director of an LLC (PJSC, CJSC, State Unitary Enterprise, Municipal Unitary Enterprise) - from 1000 to 5000 rubles; from 10 thousand to 20 thousand rubles for the absence of an employment contract or for errors in it;

for you as a legal entity - from 30 thousand to 50 thousand rubles for errors in documents; from 50 thousand to 100 thousand rubles for the absence of an employment contract or for errors in it.

Moreover, fines can be imposed on the director of the company and on the company simultaneously.
That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the lack of an employment contract: a 20 thousand fine for the director and 100 thousand rubles for the LLC.

2. If an employee is fired illegally, there may be a demand to reinstate him at work, pay wages for the period of forced absence, pay legal expenses and, as a rule, compensate for moral damages. Reinstatement is carried out only by court decision.

3. If the salary was paid “in an envelope” or the employee was not officially registered, he can file a complaint. If the information is confirmed and goes to tax service, Pension Fund and Social Insurance Fund, then you will be charged additional taxes, insurance premiums and will also be fined.

Let's look at how to avoid the second situation.

Dismissal: 80% psychology and 20% law

How to gently push an employee to voluntarily terminate an employment contract? On dismissal, in addition to legal nuances, there are also psychological ones. And sometimes psychological ones even take priority.

Due to various circumstances, a person may begin to do his job poorly. You can give him a warning, talk to him, but if nothing changes, then you need to fire him.

As practice shows, if your employment contract clearly states the responsibilities of an employee, but he clearly cannot cope with them (for example, a sales manager does not fulfill the plan, violates the technology of working with clients - he takes a long time to approve invoices, violates sales stages, negotiates with the wrong those persons), then there are no disputes and conflicts.

The most important thing here is that everything is clearly spelled out in the employment contract and that you discuss everything in advance before signing it.

It is understatement and unrealistic expectations that are the main causes of conflicts.
The employer thinks: “It seemed to me that everything was great, he understood everything, he will work the way I need. But he ruins deals, doesn’t know how to communicate with clients, doesn’t remember who called, doesn’t write down contacts, says “Hello” on the phone, but should say: “ABV Company, Ivan Ivanov, good afternoon”... Well, my goodness!”
The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, that I would work 24 hours a day, four hours a day, but in reality I only got 30 thousand rubles, and I had to work seven days a week and 10 hours a day...”.

The conditions must be stated without embellishment, but as they are. Many employers like to embellish either controversial issues They say: “Start working, then we’ll figure it out.” And then it’s too late to figure it out.

If there are no differences in expectations, then there is no conflict, which means there are no problems with dismissal.

How can you discuss the terms with the employee before signing the contract?

“I’m taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell 200 thousand rubles. In the second – for 350 thousand rubles. In the third - by 400 thousand rubles.
If you can’t reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need that. Do you agree? If you agree, then let's go."

These are examples from real practice. As a rule, in such cases, a person admits that he cannot cope, and, albeit with regret, leaves. And then he doesn’t do any mischief, doesn’t run around labor inspectors and the courts with the requirement to check you and force you to pay additional wages or reinstate him at work.

However, there are also workers who are always offended and believe that they are still owed money. Yes, and those who left on good terms may be “overwhelmed” because, for example, at home the husband or wife will psychologically provoke them to demand something from you.

In an attempt to “grab” at least something, they often try to challenge the dismissal in court, so it is vital for you to know how to dismiss an employee as painlessly as possible and without further consequences in the case of the courts.

Since the court most often sides with the employee (in Russia, for government agencies the employer is always a greedy bourgeois oppressor who is obviously wrong), the most win-win and safest option would be dismissal on the initiative of the employee, since here either no dispute can arise at all, or he himself will have to prove that he did not want to quit.

If the employer decides to fire, he himself will have to prove in court the legality of the dismissal.

This is directly stated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, which explains that when considering a case on reinstatement of an employee, employment contract terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

I would conditionally divide all practical examples of dismissal into two groups.

1. Dismissal of an employee own initiative or with his consent. This:

dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);

dismissal at one's own request (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee if he disagrees (we will consider only those grounds that are a measure of disciplinary liability, that is, punishment for the employee’s incompetence). This:

dismissal in case of repeated failure by the employee to comply without good reasons labor duties if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

dismissal in the event of a one-time gross violation of labor duties by an employee (absenteeism, appearance in a state of intoxication, disclosure of secrets protected by law, theft at the place of work, violation of labor protection requirements) (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation);

This also includes dismissal during a probationary period if the test result is unsatisfactory (Article 71 of the Labor Code of the Russian Federation).

Termination of an employment contract (dismissal) is recognized as legal only if two conditions are met:

the grounds for dismissal are expressly provided for by the Labor Code;

the procedure for dismissal on this basis has been followed.

5 safe ways to fire a negligent employee

The first and best way: dismissal by agreement of the parties

Firstly, unlike voluntary dismissal, in which an employee can withdraw his resignation letter, an employee who has signed a document terminating the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be challenged.

Secondly, by agreement of the parties, you can terminate any employment contract (fixed-term or for an indefinite period) with any persons and at any time (there is no obligation to warn in advance).

Despite the fact that the contract is terminated by mutual consent, either the employee or the employer must take the initiative. If the dismissal occurs at the request of the employee, he can write something like the following statement: “I ask you to terminate the employment contract on the basis of clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties from October 15, 2017”. Date and signature.

The article and the basis itself must be clarified, otherwise this can be interpreted as a statement of one’s own free will, and it has its own “surprises” (more on them below).

If you take the initiative to terminate the employment contract, you can write this:

LLC "ABV" represented by general director Ivanova I. I. invites you to enter into an agreement to terminate the employment contract on May 15, 2016 on the basis of paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties. I ask you to notify us of your consent or refusal to accept this proposal in writing within two days. Date of. Signature. Seal".

The agreement must be drawn up in writing. The Labor Code does not provide for any forms of such an agreement. So you can take this example:

The second method is also good: voluntary dismissal

Article 80 of the Labor Code of the Russian Federation: “An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.”

Everything is simple here - the employee writes you a statement that he wants to resign of his own free will.

Main disadvantage:
Article 80 of the Labor Code of the Russian Federation: “Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws, cannot be denied an employment contract.”
However, you can conclude an agreement on dismissal “on your own” even before the expiration of two weeks.

Also, sometimes, for better motivation when leaving at your own request, they offer to write a good reference.

If suddenly an employee says that he was forced to write a statement “on his own,” then he must prove this in court (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It's nice that a non-entrepreneur will have to justify himself. This is important in such matters.

Third method: dismissal of an employee who fails the test

The possibility of dismissal if the test result is unsatisfactory is provided for in Art. 71 Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

Basic Rules probationary period:

if the test result is unsatisfactory, you can dismiss the employee before the expiration of the test period by warning in writing, no later than three days in advance, indicating the reasons;
The test cannot be administered to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, employment testing is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and are entering work for the first time in the acquired specialty within one year from the date of graduation from the educational institution;
if the employment contract does not contain a probationary clause, it means that the employee was hired without a trial;
the probationary period cannot exceed three months;
If the test period has expired and the employee continues to work, then he is considered to have passed the test, and he will have to be dismissed on general grounds.

How to properly fire someone

1. Non-standard option.

It is possible to replace dismissal on the basis of an unsatisfactory result of the test for dismissal of an employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article states that if, during the probationary period, the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

In most cases, such a situation is resolved peacefully: the employee is informed that he is not suitable to perform the work for the position for which he was hired, that is, he did not pass the probationary period. He understands this and quits of his own free will. The question is settled: the employer has achieved his goal, and the employee does not have a “bad” entry in the work book.

2. Standard option.

It is necessary to establish a probationary period in the employment contract, including:

comply with prohibitions regarding probation;
comply with the testing period.

This issue was written above in the basic rules of the probationary period.

During the test, it is necessary to draw up official (report) notes on the work, as well as other documents indicating that the employee does not pass the test. Or document the test procedure and show that it was violated.

Make a written decision stating that the employee failed the test. Correctly calculate the period for warning the employee about an unsatisfactory test result.

Warn the employee in writing about the unsatisfactory test result no later than three days in advance, indicating the reasons (Part 1, Article 71 of the Labor Code of the Russian Federation). Dismiss upon expiration of the warning period under Art. 71 Labor Code of the Russian Federation in in the prescribed manner(Article 84.1 and Article 140 of the Labor Code of the Russian Federation).

Fourth method: dismissal in the event of a one-time gross violation of labor duties by an employee

You can dismiss for the following one-time gross violation of labor duties by an employee (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):

absenteeism;
showing up at work while intoxicated;
disclosure of secrets protected by law that became known to the employee in connection with the performance of his job duties;
committing theft or embezzlement at the place of work, established by a verdict or court order that has entered into legal force;
violation of labor protection requirements that resulted in serious consequences (industrial accident, accident, catastrophe) or created a real threat of such consequences;
the 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 on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

As is obvious from the word “one-time”, you can be fired if these actions are performed at least once.

Since in these cases the grounds for dismissal are disciplinary violations, when applying dismissal as a measure disciplinary action it is necessary to thoroughly comply with the procedure for imposing disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.

How to properly fire someone

The procedure for imposing a penalty is specified in Article 193.

It is necessary to record the offense either in documents, or in the form of a memo, or in the form of an act (preferably with witnesses). You will have to prove it later, so try your best.

Before applying disciplinary action, the employer must request a written explanation from the employee. Explanations are provided in the corresponding note.

The explanatory note must have a title starting with the preposition “o” (“about”), followed by the subject of the explanation.

An explanatory note is written on a regular sheet of paper indicating:

employer's name;
type of document;
dates;
signature of the compiler.

If the employee refuses to write an explanatory note, then an act of refusal to give explanations is drawn up. It is better to sign the act by several persons (the more, the better).

The employee is asked to sign the document. If he refuses to sign the act, an entry about this is made in the act - and everyone signs under it again. By the way, no one forbids capturing the fact of refusal on a mobile phone camera.

No later than one month from the moment the offense was committed, an order to impose a disciplinary sanction and dismissal is issued.

Dismissal on these grounds is permitted no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the employee’s representative body (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Fifth method: dismissal in the event of repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction

As is obvious from the word “repeated”, you can be fired if these actions are performed more than once.

Such violations, in particular, include:

absence of an employee from work or workplace without good reason;
refusal by an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this agreement, to comply with the internal labor regulations in force in the organization (Article 56 Labor Code of the Russian Federation);
refusal or evasion without good reason from a medical examination of workers in certain professions, as well as an employee’s refusal to undergo medical examination work time special training and passing exams on labor protection, safety regulations and operating rules, if this is prerequisite permission to work.

When using this basis for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33–35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code of the Russian Federation".

Thus, courts, when considering disputes, must take into account that failure by an employee to fulfill duties without good reason is understood as failure to fulfill labor duties or improper performance through the fault of the employee of assigned labor duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions , regulations, employer orders, technical rules, etc.).

The employee must be caught failing to fulfill his work duties without good reason, that is, committing a disciplinary offense. In this case, a disciplinary sanction must be imposed on this employee, which should not be lifted by the time a new offense is committed.

How to properly fire someone

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary liability. The procedure is established in Article 193 of the Labor Code of the Russian Federation and was described above.

2. Identify a new violation. Check the procedure for bringing to disciplinary liability in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (recording the fact of a violation, requesting an explanation, drawing up an act of refusal to provide an explanation after a two-day period, and so on).

It is easy to fire an unsuitable employee. It is much more difficult to find a legal justification for this. What legal opportunities does the Labor Code provide to employers who are faced with the task of getting rid of ballast in the form of ineffective employees?

Natalya Petrykina, specialist in corporate and labor law

First of all, you need to understand what an ineffective employee is and what this definition means when translated into the language of the Labor Code.

The concepts of “efficiency” and “ineffectiveness” of personnel are used by HR managers as a complex characteristic, consisting of an assessment of the degree of competence, productivity, initiative and loyalty of employees. In legal language, these concepts correspond to the terms “qualification” and “discipline”. It follows that if the performance or behavior of an employee does not meet these two criteria, he may be fired. Let's talk in more detail about each of the possible grounds for dismissing an employee who is working ineffectively.

Dismissal if the probationary period is not completed

The probationary period is a measure aimed at identifying compliance professional qualities newly hired employee of the position he occupies. The probationary period, as a rule, lasts up to three months, and during this period the employment contract with the subject can be terminated at any time. Please note that the probationary clause must be included in the employment contract (and also, preferably, in the order and application for employment). Otherwise, the employee is considered hired without a probationary period and, of course, it is impossible to dismiss him on the basis of failure to pass the test.

If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test.

Termination of an employment contract by agreement of the parties

This is a very convenient and conflict-free way to terminate labor relations provided for by the Labor Code. Its essence lies in the fact that the parties agree to terminate the employment contract within a certain period chosen by them. This method is convenient to use when both parties are determined to sever the employment relationship, and the date is chosen taking into account their mutual interests (for example, when a replacement for a resigning employee is selected or when he finds a new place of work).

Termination of a fixed-term employment contract

If a fixed-term employment contract is concluded with an employee who turns out to be ineffective, then it can be terminated easily and simply upon expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before dismissal.

Dismissal due to reduction in number or staff of employees

It is tempting for an employer to use this rule to fire all unsuitable workers under this guise at once, but this most likely will not be possible. First of all, the procedure for implementing this norm of the Labor Code is quite complicated. It is necessary to give written notice to dismissed employees at least two months in advance. You must first try to employ them in other available vacant positions in the organization. Upon dismissal, the employer is obliged to pay severance pay and the average monthly salary for the next two months. Despite the fact that employees with the highest qualifications and productivity have a priority right to retain a position, with equal indicators, preference should be given to family members and certain other categories of personnel. Taking into account all of the above, it is obvious that a reduction in numbers or staff is not The best way get rid of ineffective employees.

Dismissal of an employee due to health reasons or lack of qualifications

Dismissal on this basis is possible only if the unsatisfactory state of health is confirmed by a medical certificate, and insufficient qualifications are confirmed by the results of certification. Please note that it is impossible to fire an employee on the grounds that he often takes sick leave. Dismissal will require a medical certificate confirming the employee’s persistent inability to perform a specific type of work. Inconsistency with the position held due to insufficient qualifications can only be confirmed by certification results. Meanwhile, the Labor Code does not contain general rules its implementation. However, for certain categories of workers, industry rules for conducting certification have been approved, and they can be used as a guide. Three fundamental points are important here. Firstly, certifications should be carried out regularly, and not only when there is a need to fire someone. Secondly, the conclusions of the certification commission may turn out to be untenable if the fact of insufficient qualifications is established due to a short work experience, as well as due to the lack of special education. Thirdly, before dismissing an employee on this basis, the employer is obliged to offer him another job in the organization that is more suitable to his experience and qualifications.

Dismissal of an employee if he repeatedly fails to fulfill his job duties, if he has a disciplinary sanction

This is a good reason for dismissing an employee who is negligent in his duties if management’s patience has run out. To be dismissed on this basis, it is necessary that disciplinary measures have already been applied to the employee within a year. Please note that the existence of disciplinary sanctions must be documented, for which it is necessary to follow the procedure for imposing disciplinary sanctions. Let us briefly recall what it consists of. Firstly, the fact of violation of discipline must be confirmed by a written explanation from the employee. Secondly, the order to impose a disciplinary sanction must be announced against receipt no later than three days from the moment of its signing and applied no later than a month from the date of discovery of the misconduct.

Dismissal due to a single gross violation of labor duties by an employee

The following actions may be considered a single gross violation of labor duties:

Absenteeism

Appearing at work in a state of alcohol or other intoxication

Disclosure of legally protected state or commercial secrets

Committing theft, embezzlement or intentional destruction of property at the place of work

Violation of safety rules with serious consequences

All these violations are of a rather extreme nature, if we take into account the fact that most often employees, especially highly qualified ones, care not only about the company’s reputation, but also about their own. But if a violation did occur and the employer intends to fire the culprit, the following procedure must be followed. Firstly, the fact of violation of labor discipline must be recorded in writing. Secondly, the guilty employee must be removed from work and, thirdly, a written explanation of what happened must be obtained from him. Only after this can a dismissal order be issued.

Commitment of guilty actions by an employee servicing commodity or monetary values

This is another reason for dismissing an employee who has not performed at his best. This rule applies only to workers who directly service commodity or monetary assets. The reason for dismissal is the employee’s guilty actions, which give grounds for loss of confidence in him. Such actions may include, for example, receiving payment for services without completing the appropriate documents. In addition, if an employee has committed selfish offenses outside of work, the employer still has the right to fire him due to loss of confidence in him.

Termination of access to state secrets

On this basis, an employee who does not have access to state secrets may be dismissed when his work involves the use of information related to it. Please note that if an employee proves in court that in fact his work was not related to confidential information, then the court will decide on his reinstatement.

One-time gross violation by the head of the organization of his labor duties

This basis for dismissal can be applied to the heads of not only organizations, but also branches and other separate divisions, as well as their deputies. The manager's labor responsibilities are, as a rule, contained in their employment contracts and the company's statutory documents. The severity of the violation implies, first of all, guilt and significant damage caused.

Termination of an employment contract with the head of the organization in cases provided for by the employment contract

The special position of the head of the organization also implies special measures of responsibility, which are enshrined in the employment contract. Since the prosperity of the company directly depends on the actions of the manager, the basis for dismissing a manager may be his “inefficiency,” which is reflected in the employment contract in the form of specific tasks that have not been achieved in practice.

That's how everyone is possible options, available at the disposal of the employer. However, oddly enough, most often they get rid of an ineffective employee with the help of his own statement “of his own free will.” This is justified in cases where the employer, having the opportunity to fire an employee on grounds of guilt, gives him a chance to leave without spoiling the work book with unpleasant wording. In other cases, the manager must remember that an employee who quit “of his own free will” under pressure can go to court. If he wins the case, the employer will have to not only reinstate the employee in his position, but also pay him a considerable amount of compensation.

Conflict situations that arise in the workplace between management and subordinates are far from uncommon. When emotions go over the edge, and there is not a single argument left for both opponents, the phrase sounds: “Fired.” But is it so easy to fire a person from his job?

An exhaustive list of circumstances for which termination contract of employment, at the initiative of the employer, Art. 81 Labor Code, consisting of 14 points. In order to say goodbye to an unwanted employee, the employer must follow a number of legal procedures.

The reasons why employees are most often dismissed are failure to fulfill their duties, absenteeism and inadequacy of the position held.

Complaints about the performance of one’s duties or poor performance of work should be repeated. At the same time, disciplinary measures have already been taken against the employee for precisely the same facts. Failure to fulfill certain instructions cannot be considered if this work not specified in the employment contract. An important role is played by the reasons why the employee does not perform the required work. The employer is obliged to provide his employee with everything necessary to perform the assigned work.

The employer must prove the inadequacy of the employee's position through certification. A representative of the trade union body of which the employee is a member must be present on the certification commission. To carry out certification, the employer sends to the commission documents confirming poor performance of the duties of the person being certified. Having accepted the arguments of the employer and employee, the commission issues its conclusion.

Absenteeism is interpreted by law as absence from work for more than 4 hours. If an employee cannot identify and document the reason for absence from work, a report on this violation is drawn up, after which the employee must give a written explanation. If the employee submits the necessary documents that confirm his lawful absence, then in the event of a trial, the court may rule on reinstating the employee to his previous place of work, with all the ensuing consequences for the employer.

An equally common situation is when a contract with an employee is terminated during the probationary period or upon its completion. At the same time, the employer often loses sight of the fact that the argument “You are not suitable for us” is not an argument for the court. Each reason for dissatisfaction with an employee must be documented. Blurred employee responsibilities labor contract, will allow the employee to prove that the work performed complied with the norms of the employment contract.

In fact, any dismissal in any organization, regardless of whether it is a commercial structure or a government agency, is carried out in accordance with the norms of the current Labor Code. Termination of relations with workers for reasons not specified in the law is not permissible. Today we will try to consider the most common reasons for dismissal under the article of the Labor Code of the Russian Federation.

Reasons for dismissal

Under what article can one be fired? All grounds for dismissal can be divided into three large groups:

There are many reasons for dismissal at the initiative of the boss. All of them found their expression in Article 81 of the Labor Code of the Russian Federation. Let's get acquainted with them in detail.

For violations of labor discipline

All violations by a specialist of labor discipline rules can be divided into:

systemic and individual;
not rude or rude in nature.

Systematic failure to perform functions, if the employee has a disciplinary sanction, threatens with dismissal. This reason does not mean a single fact of refusal to fulfill one’s immediate duties, but systemic violations. It is imperative that the employee has already been punished for the violations committed. Verbal reprimands are not taken into account. To prevent failure to fulfill your direct responsibilities, you should thoroughly read your job description. Not a single local act will tell you about this in as much detail as a job description. It is important to have time to familiarize yourself with its provisions within three working days from the date of the crime to duty. The manager, for his part, must take care of the timely development of instructions for the new employee and familiarize him with it in writing, preferably on each page with a date.

Assumption of gross violation

If for other violations one fact is not enough to fire a person, then for gross violations only one is enough. What do you mean by rude? Why can you be fired?

. Not going out on your own workplace during the entire working time or more than 4 hours (please note that it is consecutive, and not 4 hours in total during the working day) entails dismissal. If an employee is sick, he should at least call and report his absence from work. It is advisable to do this in advance so that the boss has time to find a replacement. This is most relevant in plants and factories, where stopping the production process leads to large losses.
. Coming to work drunk or under the influence of psychotropic or narcotic substances also threatens dismissal. In this case, the worker’s workplace is determined in his job description. It is not at all necessary that it should not change. There are professions with a constant change of workplace, an auditor, for example, who is on constant business trips.
Theft. Theft, damage to the company's material assets by an employee, their waste - all these are also reasons for terminating relations with the employer. An important nuance - even conducting an internal audit in this case is not enough to say goodbye to such an employee. Everything is much more serious. The employee’s guilt is confirmed either by a verdict or a court order.

Loss of trust

There are also reasons for dismissal that contain an anti-corruption component. What does by itself mean?

Failure to provide or misrepresent income. Almost all civil servants today provide information about their own income every year. Moreover, not only in relation to themselves, but also in relation to their wives and children. The submitted certificates contain information about the amount of funds for their bank cards, open accounts, information about not only owned, but also in use apartments, cars, boats, planes and garages. Failure to provide proof of all your income or providing distorted information means losing trust. And this is already grounds for subsequent dismissal.
Submitting false documents for employment purposes. We are talking about absolutely any document related to employment: passport, military ID, diploma, license or certificate. When applying for a job in a reputable organization, you need to be prepared for the fact that all copies of submitted papers may be subject to thorough checking. A request can be made to the Information Center about whether the future employee has a criminal record, and to a university - a request about the authenticity of the diploma presented to them. Such verification activities can only be carried out with the written consent of the person in respect of whom they are actually being carried out.
Disclosure of official secrets. Disclosure of any secret: state, medical, official, etc. An employee hired for a job whose nature involves possession of secret information signs a non-disclosure agreement. This also applies to the disclosure of personal data, for which the employee can also be fired.
Violation of safety regulations by a specialist. Violations of labor protection regulations. Such a violation in itself cannot cause dismissal. There must be some serious consequences of this violation: a disaster, harm to other workers, an accident. The harm assessment is carried out by representatives of the occupational safety commission.

Inconsistency between a specialist and his position

Compliance with the employee's qualifications, knowledge, skills and abilities is determined exclusively by certification commissions. By himself, alone, a manager cannot make a decision regarding his subordinate about his unsuitability for official duties. For this purpose, an entire certification commission must be convened.

The commission is created in the organization by order with mandatory familiarization with the signature of the persons included in its composition. As a rule, these are the most trained employees, deputy heads, heads of departments, experienced employees who are able to adequately and objectively assess the abilities of the person being certified. During certification, the employee is asked questions about his work, the answers to which allow him to be given a fair description. Following the results, an open vote takes place. A majority vote renders a verdict on the person being certified - whether he is suitable for the position or not. The basis for the commission is a protocol signed by all participants, and most importantly - by the person being certified as a sign of familiarization with the conclusions. One of the results of such certification may be.

Termination of the company

For this reason, when dismissing a worker, the identity of the worker is not taken into account at all. Everyone is subject to dismissal: positively characterized employees who work honestly for the benefit of the company, as well as carelessly working employees who have not distinguished themselves in any way for the better. The basis for terminating the relationship for this reason is the same order for all to liquidate the enterprise. At the same time, it is clear that no other positions are offered to anyone, since, strictly speaking, there is nothing to offer.

Staff reduction

Downsizing happens in all organizations: private firms, state-owned enterprises, factories and factories. The basis for dismissal is the order of the number of work units. At the same time, it precisely indicates which positions are subject to reduction. An important feature is that the worker is notified of the upcoming layoff at least two months in advance. From the point of view of the legislator, this time will be enough for the employee to find a new, suitable job.

The law also defines the circle of persons who have some immunity to remain at work during layoffs. Who can management not fire for this reason:

First of all – pregnant women. If an employee whose position has been cut brings a certificate of pregnancy, then it will be impossible to fire her. The employer will simply be obliged to offer her a worthy alternative in the form of a similar position or similar type of activity, with a salary not lower than what she receives.
Those workers who, for various reasons, retain their jobs. Those on maternity leave, for example, annual leave, a business trip, even a long one or in another area.
Workers released from their labor functions due to ill health. The basis is the certificates of temporary incapacity for work presented to the employer;
Employees who are raising children under three years of age.
Employees raising children alone. The age of the children of such mothers is up to 14 years, and if the child is disabled, then up to 18 years.

Representatives of trade union organizations enjoy a special position. They can be reduced only with the permission of the trade union leadership.

Sometimes a difficult situation can arise in a work team when one position out of two staff positions is cut. Let's say one of the two driver positions must be reduced. In this case, the manager must leave at work the driver whose qualifications, rank and labor efficiency are higher. But what if the drivers are equal in terms of professionalism? In this case, preference is given to the one who has larger number dependents in comparison with another, or, for example, to someone who, during the period of work, received an occupational injury in a given company in a given company.

Change of company owner

If the property of the company is transferred by right to a new owner, then this new owner legally has the right to change his director, deputies, and chief accountant. This basis has nothing to do with other categories of workers.

At your own request

Do not forget that the employee himself has the right to terminate his employment relationship with his employer at any time - at his own request. And such a reason is also provided as a basis for dismissal under the article. To do this, the employee submits a statement of his intention to leave to the director of the company. Most often, he is assigned to work for a period of 2 weeks. But, at the discretion of the manager or by mutual agreement with the employee, dismissal can be made without working off. On the appointed day - the day of dismissal - a full payment is made to the employee and a work book is issued.

Due to death

Death is a circumstance that does not depend on the will of the parties to the labor relationship. Of course, in the event of the death of an employee, the employment relationship with him is terminated. In this case, the work book is issued to a loved one deceased. In addition, the family of the deceased employee receives all due compensation, including wages for the time worked by the deceased.

Sample procedure for registering dismissal

What does the dismissal procedure under the article include? Any procedure is a certain sequence of actions. Where should you start, first of all?

Witnessing a fact

This action must be carried out mainly if the specialist commits any violations. For example, a person did not show up for work. To testify to this fact, it is necessary to draw up an act, not about simple absence, but about absence for exactly 4 hours in a row. Keyword- in a row. An employee showed up at his workplace drunk. An act should also be drawn up about this. Any act is drawn up in the presence of at least three members, and they sign it. If you do not promptly record any violations by an employee, then dismissing him in the future will be problematic.

Issuing a warning

You should not immediately take decisive action by announcing dismissal to the offender. Thus, the entire personnel potential of the company can be lost. To begin with, it is enough to warn by making a remark or issuing a verbal reprimand. We can finally have a conversation. And if all the preventive measures taken did not bring the desired result, and the employee again continues to commit the same violations, then the only right decision is dismissal.

Employee familiarization

An employee who has committed an offense at work must know exactly what he committed. So, when drawing up an act in relation to him, he must be familiarized with it. When declaring a reprimand, it is necessary to familiarize the employee with the order. When announcing a verbal reprimand, it is also necessary to familiarize the employee with the minutes of the meeting at which public reprimand is issued to the offender. In general, the employee who committed the violation is familiarized with any punitive document against signature.

Explanatory

For all cases of violation of discipline in the team, an explanation must be taken from the guilty employee. The leader must know the reasons for what was done. The explanation is always given in writing. It is advisable to initially indicate questions on the form, to which the employee subsequently gives detailed answers.

Order of dismissal

After all preventive measures and warnings have been exhausted, in full The reasons and all circumstances of the violations committed by the specialist are identified, and a dismissal order is drawn up. The order is drawn up by a HR employee. The order states:

FULL NAME. dismissed;
reasons for termination of relations with reference to the article of the Labor Code of the Russian Federation. A similar entry is made in the labor record;
the amount of cash payments due;
date of termination of the contract. This date does not always coincide with the day the order was issued. The order may be issued earlier than the date of dismissal, but in no case later.

Compensation and benefits

All amounts due to the dismissed person are paid to him on the day of dismissal. If he did not apply for them on that day, then they are paid on the day following the day of his application. Payments include:

compensation for unused rest time during the year of dismissal;
bonus for conscientious performance of duties. As a rule, these are two salaries.

The employer is liable for violation of payment deadlines.

Is it possible to appeal dismissal under the article?

Of course you can. If an employee considers the dismissal to be illegal, he has the right to challenge it in court. The main thing is not to miss the deadline. The law establishes a one-month period for appealing a dismissal order. Exceptional cases of extension of this period are illness, business trip, or other circumstances that deprive a person of the opportunity to go to court for restoration of his violated labor rights.

In conclusion, I would like to note that under no circumstances is it possible to fire a person who is on vacation or sick leave. The only exceptions are cases of liquidation of the company. Remember that it is not enough to fulfill your duties honestly. You also need to periodically read your job description, the provisions of the collective agreement, if the company has one, and also know the provisions of labor legislation.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.