Consequences of dismissal from the army for loss of confidence. Violations by the employer and judicial practice. Registration of investigation results

22.09.2019

Major troubles at work can arise for various reasons. Sometimes this happens due to the intentional actions or negligence of the employee himself, which caused obvious harm to the property or finances of the employer. If the employee’s guilt is beyond doubt, and his repentance does not resonate with the director, then the employer’s logical step would be dismissal due to loss of trust.

What is loss of trust?

The credibility of your superiors, earned over the years, can be destroyed by just one act of the hired person. Depending on the circumstances proving the guilt and unseemly intentions of the employee, the director has the right from this moment to treat his subordinate with distrust. Another question is to what extent the employer’s arguments in the current situation will be sufficient to complete the calculation.

Grounds for dismissal

Employer trust is associated more with the emotional and intuitive areas of life. In such a situation, dismissal due to loss of confidence will require a particularly careful approach when carrying out preliminary procedures.

Initially, the manager needs to decide what grounds can be considered sufficient to terminate labor relations according to paragraph 7 of Art. 81 TK:

theft, damage to property (pre-planned or due to oversight);
fraudulent actions (counting, misgrading, underweight or false write-off of commodity values);
violation of anti-corruption legislation (for civil servants);
making a decision that entailed significant negative consequences for the company (applicable to directors, their deputies and chief accountants);
other cases where the employer was able to document the dismissal of an employee due to loss of trust.

In order for the law to side with management, it is not necessary to enter into a full agreement with the employee. financial liability. It is enough that in his job description the function for direct servicing of cash or inventories will be indicated.

Dismissal for lack of trust can only be done if the employee’s documented actions caused or could cause actual damage to the enterprise.

Legislative framework

Penalty in the form of dismissal is the highest measure of influence within the capabilities of the Labor Code. The procedure for its implementation is prescribed in Art. 193 Labor Code of the Russian Federation. If we are talking about the fact that the employee’s action does not allow him to further claim the trust of the manager, then the calculation will be carried out on the basis of clause 7 of Art. 81 Labor Code of the Russian Federation. Since the fact of dismissal directly depends on whether the employee was given the responsibility for maintaining and preserving valuables, this must be reflected in any of the documents:

in the employment contract;
in the job description;
in an agreement on full financial responsibility, if the position is on the list approved by the government, Art. 244 TK.

For those who do not work in the commercial sphere, but are connected by labor relations or service with the state, it is important to remember the existence of the Law on Corruption, 273-FZ. In addition to this general regulatory act, there are also specialized ones: on the civil service 79-FZ, on the prosecutor's office 2202-1 FZ, on service in the Ministry of Internal Affairs 342-FZ, on service in customs 114-FZ, on military service 53-FZ, on municipal work 25-FZ, about SKR 403-FZ and so on.

Dismissal from government or military service

If in the self-financing sector and private business there are no legally established reasons for the loss of confidence in an employee on the part of his employer, then for civil servants and the military there is a fairly specific list:

conflict of interest - making a decision to the detriment of the state and in favor of personal gain;
failure to provide data on property status and income, or their deliberate distortion;
commercial activity (individual or through participation in the management of a private business);
participation in foreign non-profit organizations with receipt of payment for their services or opening accounts in foreign credit institutions.

The requirement to comply with certain restrictions also applies to the official’s spouses and their minor children.

Dismissal procedure

From the moment the employer has reasons not to trust his own employee, the difficult process of dismissal due to loss of trust begins. Since the cases that prompted management to part with an employee are too diverse, it is possible to outline only the general sequence of actions of the employer, without which he cannot do.

Internal investigation

The procedure will start documentation misconduct or recording the actual state of affairs. For example, if we are talking about the theft of money or valuable items, then this can be established on the basis of sudden inventory data. If the enterprise has a checkpoint and security, then the fact of theft can be documented in the form of an act of seizure of products.

Based on the available documents, an investigation into all the circumstances of the incident will be carried out. The law does not prohibit the director from conducting an investigation personally, but the court may call individual conclusions into question. In order to increase objectivity, it is better to issue an order to create a commission to investigate the case, at least three persons. Make a decision to keep or dismiss an employee based on a collegial opinion.

The employer may refuse to conduct its own proceedings if police or prosecutors are involved in the matter. The time taken to conduct investigative measures stops the statute of limitations for dismissal due to loss of trust, so the employer can calmly wait for the verdict to prove his case.

It is more correct to establish the guilt of an employee based on the findings of the commission.

Explanation from the employee

Under the weight of the charges and evidence, the employee can either confess to the crime or try to present his own arguments in defense. Be that as it may, dismissal due to loss of confidence without explanation is possible only in exceptional situations:

the act is not related to the performance of work duties;
the employee did not report that he had previously been convicted of theft or causing intentional harm.

In all other cases, when the proceedings are carried out by the current employer, the application of disciplinary punishment in the form of dismissal will necessarily require preliminary, Art. 193 Labor Code of the Russian Federation.

Order of dismissal

The outcome of the internal investigation will not necessarily result in termination of the employment relationship. After all, after receiving an explanatory note from an employee, the director may change his mind, Art. 192 Labor Code of the Russian Federation. If the excuses turn out to be unconvincing, then it’s time to issue an order that turns the dismissal of an employee due to loss of trust from a threat into a reality.

For this purpose, use the standard T-8 form, as in normal calculations. Only in the “Grounds” column do they provide a list of documents proving the employee’s guilt, a link to clause 7 of Art. 81 Labor Code of the Russian Federation.

There is an opinion that there may be two orders. One is about the application of penalties and its justification, and the second is about the termination of the contract itself. However, the court may consider that the employer has thus imposed two penalties for one disciplinary failure.

When parting with an employee for any reason, the exact wording from the order to terminate the contract for hiring a specialist is transferred to the “Work Information” section. If a criminal case has not been opened against the offender, then the most unpleasant consequences for an employee upon dismissal due to loss of trust can be considered the fact that this situation leaves a mark on the pages of the work book. In the future, mention of clause 7 of Art. 81 of the Labor Code will force a candidate for a position to carefully select explanations for a potential employer.

A reference to this clause can permanently block access to the civil service, as well as to the positions of director and accountant. And from January 1, 2018, data on corrupt officials in the ranks of military personnel, municipal officials, prosecutors and other civil servants dismissed under the article due to loss of trust will also be entered into a special register.

Deadlines

The employer can exercise its right to terminate the contract only within the period established by law. If the misconduct is obvious and the manager immediately became aware of it, then thirty days of pure calendar time are allotted for the investigation and signing of the dismissal order. That is, if an employee gets sick, goes on vacation or does not show up for work for any other reason, then this period is suspended.

Due to the fact that mistakes or intentional deception do not always immediately become public knowledge, there are several nuances for formalizing the legal dismissal of an employee due to loss of trust. We can only consider general cases:

Detection method	Date of commission of the offense and its documentation	Possibility of dismissal
Report from the immediate supervisor	The report was drawn up on the day the mistake was made	Within a month from the date of discovery, Art. 193 Labor Code of the Russian Federation.
Report from the immediate supervisor	The boss discovered the violation and documented it after six months	If the offense is classified as disciplinary and does not fall under administrative or criminal law, then the deadline for applying any penalty has already passed.
Internal audit or audit	The violation occurred no more than two years ago, counting from the date of drawing up the inspection report	Dismissal is possible if the order is issued within two calendar years from the day the offense was committed. If, as a result of the inspection, a criminal case is initiated, then this period is suspended.
Internal audit or audit	More than two years ago	Grounds for dismissal in accordance with Art. The employer no longer has Article 193 of the Labor Code of the Russian Federation. But if the offense does not fall under the category of disciplinary offenses (it was not committed in working hours or before registration for a position), then this rule no longer applies.

What payments are due?

Distrust of the bosses and their keen desire not only to quickly get rid of the employee, but also to complicate his financial situation is a direct path to defeat in a labor dispute. Regardless of the grounds for dismissal, the calculated amounts are largely unshakable:

salary for the time he managed to work before the date of departure;
compensation payments for all types of paid leave that the employee did not have time to take;
compensation for overexpenditure of personal funds on accountable expenses in favor of the enterprise;
all additional payments approved in the collective agreement that are not directly dependent on the reason for dismissal.

It is also necessary to exercise caution in the issue of calculating wages during the period of the internal investigation. An employee who has lost confidence cannot be removed from work on the basis of Art. 76 of the Labor Code, even if the employer is reasonably concerned about the safety of his material assets. This problem can be solved tactically by offering a temporary transfer to another position, while maintaining the employee’s previous salary.

There is a separate nuance regarding the deduction of the cost of damage caused. If an agreement on financial liability was not concluded with the dismissed person, and he does not agree to compensate for the damage, then it is impossible to withhold even a penny from the settlement amounts. This dispute will have to be resolved in court.

Who can't be fired?

The Labor Code gave an “iron” guarantee of safety upon dismissal at the request of the authorities only to pregnant women working on an indefinite term basis. employment contract, art. 261 Labor Code of the Russian Federation. For this category, the only threat is complete liquidation enterprises. It is possible, but only after obtaining the consent of the labor inspector and employees of the commission for working with minors, to terminate an employment contract with persons under 18 years of age, Art. 269 Labor Code of the Russian Federation.

Other employees who have committed guilty acts in relation to their own company and its property may be subject to such severe disciplinary action as dismissal of the employee due to loss of trust, without restrictions.

The basis for dismissal due to loss of confidence may be a court verdict, the effect of which the employee did not disclose before being hired.

Is it possible to challenge?

The right of every person to protect their legitimate interests with the help of government supervisory authorities or the courts is an absolute achievement modern society. Therefore, if an employee is sure that he has been wrongfully dismissed, challenging the employer’s decision is not only possible, but also necessary.

It is important to remember a few important points:

cases of illegal dismissal are subject to consideration directly in the courts of general jurisdiction at the location of the defendant (employer), Art. 391 Labor Code of the Russian Federation;
The time limit for filing a claim in court is limited to one month, Article 392 of the Labor Code of the Russian Federation;
if the claim contains only claims arising from labor legislation, then the employee is exempt from paying duties and fees, Art. 393 Labor Code of the Russian Federation;
Violation of the principle of territorial jurisdiction threatens the employee with refusal to accept the case for consideration and missed deadlines for going to court.

Since the Labor Code does not provide an exhaustive list of grounds and reasons for dismissal in accordance with paragraph 7 of Article 81 of the Labor Code of the Russian Federation, there are a great many possible situations. For an employee who has decided to restore his reputation and previously held position, it is necessary to refer, first of all, to a violation of the procedure for imposing a penalty (Article 193 of the Labor Code of the Russian Federation), lack of sufficient documented evidence and missed deadlines for applying punishment.

You should also not go into a “blind” defense, refusing to receive your copy of the employer’s demands, because they may contain information or an error that will help convince the judge of the illegality of the dismissal.

Judicial practice

The variety of circumstances of labor disputes does not leave it possible to unambiguously determine in which cases judicial practice always takes the employee’s side, and when he fully supports the employer. The outcome of the case is always determined by the thoroughness of the documents drawn up and evidence that the procedure for dismissal due to loss of trust is followed from the first to the last letter.

Cases when an employee and employer part ways due to loss of trust are quite rare. In practice, each party wants to avoid extra costs and hype, so they often formalize dismissal by agreement. This, of course, does not apply to situations where everything goes beyond the scope of the Labor Code. Then it is better for both the hired person and his manager to prepare for questions from investigative authorities and know in advance how to correctly draw up documents and collect evidence of guilt or innocence.

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.

Dismissal due to loss of trust applied by the employer in relation to employees whose actions have shown that it is impossible to entrust them with the maintenance of valuables. In the article below we will consider in detail the conditions for such dismissal.

Employees in whom trust may be lost. Is it possible to fire an accountant?

Fire for loss of trust(clause 7, part 1, article 81 of the Labor Code of the Russian Federation) not any employee, but only one whose work consists of servicing commodity and/or monetary assets. Service here refers to various operations: issuance, reception, transportation, storage, etc. The corresponding responsibilities must be contained in the employee’s job description.

The existence of an agreement on full financial responsibility is not a necessary condition for dismissal in this case, although it is taken into account by the courts when considering disputes about the nature of job responsibilities. This is confirmed, for example, by the decision of the Kirovsky District Court of Yekaterinburg in case dated February 18, 2011 No. 2-411/35(11). Maternity liability agreements can only be concluded with employees holding certain positions or performing certain work. The list of such positions and works was approved by the Ministry of Labor of the Russian Federation in Resolution No. 85 dated December 31, 2002.

However, the existence of a liability agreement alone cannot guarantee the possibility dismissal for loss of confidence. It is necessary that the corresponding responsibilities be enshrined in the employment contract and/or job description (appeal ruling of the court of Khanty-Mansi Autonomous Okrug - Ugra dated October 2, 2012 in case No. 33-4375/2012).

IMPORTANT! Accountants, merchandisers and similar employees cannot be fired for loss of trust, since they are not persons directly servicing inventory items (Decision of the Supreme Court of the Russian Federation dated July 31, 2006 No. 78-B06-39).

Why can you fire an employee due to loss of trust? Signs of action, judicial practice

You can only be fired for actions that:

They were committed guilty.
Resulted in a loss of trust from management.

The fact of the commission of the relevant actions and the guilt of the employee must be confirmed by an act of the authorized government agency(for example, a court verdict) or the results of an official investigation.

At the same time, it is important to understand that the Labor Code of the Russian Federation does not contain a list of actions for which one could definitely be fired on the grounds under consideration. Loss of trust is an evaluative concept, so the employer has the right to independently decide whether it is applicable, taking into account all the circumstances (the employee’s previous behavior, his personality, attitude towards work, etc.).

For example, the courts found the following dismissals to be lawful:

for violation of the rules of commission cash transactions(determination of the Arkhangelsk Regional Court dated May 16, 2002 No. 33-1411);
failure to comply with the procedure for issuing valuables, approved by the local document of the employer (determination of the Ryazan Regional Court dated November 29, 2006 No. 33-1699).

To summarize, we can only say that actions that caused or could cause damage to the employer are clearly grounds for loss of confidence in the employee responsible for them.

The Plenum of the RF Armed Forces clarified that dismissal on this basis can also occur when the employee’s actions are not related to his current work (clause 45 of Resolution No. 2 of March 17, 2004). However, this possibility is limited to cases where an employee commits offenses with a mercenary motive (theft, bribery, etc.). Obviously, even illegal acts of this kind committed outside of work may indicate that this employee should not be entrusted with working with inventory items. The fact of holding an employee accountable, for example, for violating the rules traffic, cannot influence the employer’s trust and act as a reason for dismissal under clause 7, part 1, art. 81 TK.

The procedure for recording violations, a sample order to create a commission

Dismissal for loss of confidence will be recognized as legal only if the violations are documented by the employer. We are talking about violations labor discipline, since for dismissal for actions punishable under the Criminal Code of the Russian Federation or the Code of Administrative Offenses of the Russian Federation, an act of an authorized government agency or official that has entered into force is sufficient.

Labor legislation does not establish a procedure for documenting violations of labor discipline. In practice, upon discovery of a process or result of a violation, a report/service note is drawn up (the author is the person who discovered it), which reflects:

information about the employee who discovered the violation (full name, position);
time and place of discovery of the violation;
circumstances of the violation identified at this stage.

The memo serves as the basis for starting the internal investigation procedure.

A special case is the identification of a shortage as a result of an inventory, about which a corresponding act must be drawn up. In this case, it is not necessary to fill out a report, but it is necessary to conduct an investigation. Dismissal due to loss of confidence, based solely on the results of an inventory, is recognized by the courts as illegal (decision of the Karasuksky District Court of the Novosibirsk Region dated September 12, 2012 in case No. 2-694/2012).

Dismissal under article about loss of trust, internal investigation procedure

An internal investigation is carried out to establish the fact of violation of labor discipline, all the circumstances of its commission and the guilty employee. Its implementation is not regulated by law, but in practice it usually begins with the creation of a commission (at least 3 people). Members of the commission are selected by the employer at its discretion from among competent employees who are not interested in the investigation.

Its creation is formalized by order in free form. It is recommended to reflect in it:

information about members (full name, position);
purpose of creation;
validity period (optional if the commission is permanent);
powers.

All employees listed in the order must be familiarized with it against signature. You can view a sample order on our website.

Consolidating the results of the investigation

The employer's chances of winning in court in the event of challenging dismissal will increase if all the actions of the commission are reflected in documents (certificates, memos, acts). The following should also be attached to the investigation materials:

inventory documents (if suspicion of a violation arose based on the results of the inventory);
documents received from third party organizations(for example, if a violation was discovered with the help of a bank) and authorities.

The results of the work are documented in a report on the results of the investigation. It is advisable to indicate in it:

specific actions that were committed and which entail a loss of confidence in the employee who committed them;
established circumstances of the offense;
damage caused or the possibility of causing it;
information about the guilty employee;
possible punishment for the perpetrator;
other information relevant to the investigation.

IMPORTANT! The act must indicate that the employee lost the trust of the employer precisely for the identified guilty actions.

The act is signed by all members of the commission, after which the guilty employee must be familiarized with it and signed. If it is impossible to familiarize yourself with it (for example, due to absence from work), a note about this is made in the act indicating the reason. Members of the commission must attest to the impossibility of familiarization with their signatures. The employee’s refusal to sign the document is formalized in the same way.

Conducting its own investigation does not deprive the employer of the right to contact law enforcement authorities if there is a suspicion that a crime or administrative offense has been committed.

The procedure for applying disciplinary sanctions under the Labor Code of the Russian Federation

Dismissal for loss of confidence is a disciplinary sanction, therefore the requirements of Art. 193 Labor Code of the Russian Federation. Otherwise, it cannot be recognized as legal.

IMPORTANT! If dismissal for loss of confidence is carried out on the basis of the employee committing actions not related to the current work (for example, theft in a store), then Art. 193 of the Labor Code of the Russian Federation does not apply.

Thus, the employer does not have the right to impose a penalty without requesting an explanation from the offending employee. Although it is not required by law, it is best to ask for an explanation in writing and obtain a signature from the employee confirming that they have received the request. An employer may dismiss an employee who has not written an explanatory note after 2 working days from the date of its request (a report on this is drawn up). The presence of a written request signed by the employee serves as evidence of compliance with the dismissal procedure. The deadlines for imposing penalties provided for by the above norm should also be observed.

Note: it is not necessary to fire an employee for an act that gives grounds to distrust him. The employer, having received an explanation, can choose a more lenient punishment for the employee and even not punish him at all.

Dismissal is formalized in the general manner according to the rules of Art. 84.1 Labor Code of the Russian Federation. In this case, it will be enough to issue only an order of dismissal, additional (on the imposition of disciplinary action) is not required.

Download the order form

Before how to fire an employee for loss of trust, the employer should ensure that the situation meets all the necessary conditions:

The employee belongs to the category of servicing valuables.
The fact that he committed guilty actions has been established and proven.
The procedure for imposing disciplinary punishment has been followed.

If at least one of the conditions is missing, in the event of a legal dispute the dismissal will be declared illegal.

Russian legislation provides for such a reason for termination of employment relations as loss of trust on the part of the employer.

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It is important to understand in which cases such a basis is applicable, in which it is not, and how to formalize everything correctly so that there are no claims in the future.

What does Russian legislation say?

Dismissal due to loss of trust is possible only in relation to an employee who is engaged in servicing cash or inventory items.

An agreement on responsibility for the organization’s property must be concluded with him. Trust is expressed in the job description, which reflects all rights and responsibilities.

The Labor Code does not regulate specific grounds for termination of a contract.

Typically, culpable actions include:

providing false information about income received;
reporting false information about expenses;
illegal storage of savings in foreign banks;
corrupt practices;
theft or destruction of enterprise property;
fictitious write-off of goods, etc.

Suspension from work is possible in cases where an employee servicing goods and materials has committed an offense unrelated to the main activity. Criminal liability is provided for such violations.

Dismissal under the article “loss of trust” is not applicable for loaders, drivers, janitors, etc. It is illegal to deprive them of their jobs even if they have committed theft and there is evidence of guilt.

This nuance must be taken into account when preparing documents.

Regulatory documentation:

Labor Code: clause 7, article 81, 261;
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2;
Federal Law No. 255;
Art. 34 and 35 Law of the Russian Federation No. 1032-1 “On the employment of citizens of the Russian Federation”;
Art. 59.2 No. 79-FZ “On the State Civil Service of the Russian Federation”.

Read the text specified documents you can here:

Possible consequences for employees

The manager has the right to independently assess the situation and make a decision, taking into account the prevailing circumstances.

Depending on the severity of the offense, punishment is assigned in the form of:

written reprimand;
collection of compensation (material);
dismissals.

Termination of employment due to loss of trust causes negative consequences for employees.

These include:

interruption of work experience – affects payment for temporary disability;
non-payment of unemployment benefits for the first 3 months, in the future the amount will be reduced;
ban on a certain position (temporary or lifelong).

How is dismissal for loss of trust formalized?

If the employer is confident in the correctness of the decision being made and has evidence that guilty actions have been committed, he can get rid of the employee at any time.

In this case, it is not necessary to complete the 14-day period.

Step by step instructions

Step one is a notice of dismissal.

HR specialists draw up a notice and send it to the employee.

The form can be downloaded here:

The recipient must sign it, otherwise a certificate of refusal is drawn up in front of witnesses.

The second stage is placing an order.

Published in the established form T-8:

The wording of the reason is similar to the future entry in work book.

As the basis, the details of the documents confirming the commission of the offense and attached to the order are indicated.

These include:

memorandum;
act on identifying the loss of goods and materials based on the results of the audit;
court decision (if any).

Step three - entry in the work book (LC).

In the appropriate column, an entry is made that the employee is fired for lack of trust.

An example is shown in the figure:

An example of an entry in a work book in case of loss of trust in an employee

The document is issued in person on the day of termination of the contract.

Upon receipt, the employee must sign the personal card, as well as in the TC traffic register.

The next step is calculating cash payments.

They must include:

salary for the period worked;
bonuses;
or .

The employee is issued a certificate of income for the last 12 months, a work book and others.

When resigning due to loss of trust, it is important to adhere to deadlines. If the employee continues to work after the date established in the order, the contract is automatically extended. If it is necessary to terminate the employment relationship, all procedures are carried out from the very beginning.

If management requires compensation for damage caused, it will need to contact the justice authorities.

By following the algorithm described above and correctly preparing documents, you will be able to protect your rights.

Example of calculating monetary compensation

The company Merlion LLC dismisses cashier N.F. Melnichenko due to loss of trust 03/24/2016. Employee’s salary - 21,500 rubles, bonuses - 20%, average daily earnings - 716 rubles. The main vacation was not used. How much money must be paid on the day of dismissal?

Solution:

Since the employee worked for 24 days, the value is rounded to the nearest full month. The salary will be 21,500 rubles.

To calculate bonuses we use the formula:

Bonuses = Salary x % bonus

Prizes N.F. Melnichenko are equal:21,500 x 20% = 4,300 rub.

Compensation for unused vacation: 28 days x 716 rub. = 20,048 rub.

N.F. Melnichenko should receive an amount of 45,848 rubles. (21,500 + 4,300 + 20,048).

A HR specialist or accountant needs to adjust the amount to the regional coefficient.

Important features of dismissal for different categories of employees

State and municipal employees

Dismissal is possible on the grounds regulated by Art. 59.2 Federal Law No. 79 “On State Civil Service in the Russian Federation”.

These include:

conducting business activities;
lack of action to prevent conflict;
entry into management bodies;
corruption.

Termination of an employment relationship is legal if the following requirements are met:

inspection by specialists of organizations monitoring compliance with the norms of the Labor Code of the Russian Federation;
availability of a report on the results of the inspection;
providing recommendations to the dispute resolution commission.

Pregnant employees

Military personnel

When terminating a contract, the following nuances must be taken into account:

dismissal is carried out upon detection of corrupt practices;
each case is examined separately, all aspects of the current situation are taken into account;
proof of the cause-and-effect relationship of the offense is required.

Accountant

The manager should be careful: it is impossible to deprive an accountant of his job due to lack of trust, since he controls transactions with money only on paper and does not interact with cash.

The opposite situation arises for the accountant-cashier, who is responsible for the safety of finances.

Financially responsible persons

These include accountants-cashiers, managers, delivery drivers and other people who directly work with money.

Occurs at the end of an official investigation, as a result of which the guilt of a particular person is officially confirmed.

Violations by the employer and judicial practice

N.I. Krylov applied to the court for reinstatement to the Itera company as an accountant and compensation for wages for forced absence. The actions were motivated by the fact that the employer fired him as an employee servicing monetary or commodity assets, which was not part of Krylov’s job duties. The disciplinary procedure was also not followed.

Result:

The panel of judges found that the agreement on financial liability between Itera OJSC and N.I. Krylov was not concluded. The dismissal was declared illegal.

The company Maria LLC decided to dismiss E.I. Korshunova due to loss of confidence. The employee refused to admit guilt and wrote to at will. The manager did not issue in a timely manner under clause 7 of Art. 81 Labor Code of the Russian Federation (within 14 days).

Result:

The statute of limitations has expired, termination of the contract between E.I. Korshunova and Maria LLC was carried out under Article 80 of the Labor Code of the Russian Federation.

The bailiffs received a complaint against IP K.N. Dorozhny on recognition of the dismissal of saleswoman V.A. Yakhtina is illegal and requests to change the reason for termination of the contract. The employer provided certificates confirming the shortage - 400 thousand rubles. By decision of the justice authorities, an inspection was carried out.

Result:

A memo or other documents confirming the fact of the theft of property by V.A. Yakhtina was not found. The court considered that the employee’s guilt had not been proven and granted the claim.

One of the reasons for termination of an employment relationship at the initiative of the employer may be dismissal due to loss of trust. This norm is enshrined in clause 7, part 1 of Art. 81 TK, but they don’t use it often. To terminate a contract with this wording, strict compliance with the special dismissal procedure and a number of certain conditions is necessary.

If the dismissal procedure is not followed, the court may conclude that the employment contract was illegally terminated and reinstate the employee at work, and oblige the employer to pay compensation to the reinstated employee for forced downtime.

What circumstances can lead to a loss of trust?

IN Labor Code There is no clear list of offenses that may be a reason for loss of trust. The employer has the right to independently evaluate the employee’s actions and apply appropriate penalties. In order for an employer to legally apply the article of the Labor Code of the Russian Federation “Dismissal for loss of trust,” 3 conditions must be met:

the employee has committed any misconduct;
the employee’s work activity is related to material assets or in cash;
the actions taken by the employee caused a loss of trust in the employer (this may also include inaction);

Termination of an employment contract based on loss of trust causes negative consequences for employees.
These include: 1) interruption of work experience - affects payments for temporary absence from work 2) non-payment of unemployment benefits for the first three months, in the future the amount will be reduced 3) lack of permission for a certain position (temporary or lifelong).

The important point in this situation is that the employee’s misconduct does not necessarily have to cause any damage to the employer. If damage is caused, the right to compensation and holding the employee responsible for this to financial responsibility arises automatically. IN in this case Repeated actions by this employee may lead to further material losses, so this reason for dismissing an employee allows the employer to prevent possible damage and protect the organization’s monetary and material assets.

In what cases is dismissal possible?

Dismissal under the article “Loss of trust” for an offense committed by an employee during working hours is, in accordance with Part 1 of Article 192 of the Labor Code, one of the methods of disciplinary action. In addition to this, the manager has the right to use other penalties provided for in this article, such as a reprimand or reprimand. For certain categories of employees, various regulations provide for other types of penalties, for example, transfer of an employee to another position or job. The manager decides independently which penalty to apply in a particular case.

Dismissal due to loss of trust is permitted for an employee who uses material or monetary assets in his work. As a general rule, it is necessary to draw up an agreement on personal liability with such an employee. The list of employee positions with whom such contracts should be drawn up is given in Resolution of the Ministry of Labor No. 85, adopted on December 31, 2002. It is also allowed to dismiss an employee under clause 7, part 1 of Art. 81 of the Labor Code and in a situation where this offense is not related to direct work.

Important! If an employee’s misconduct, which could lead to a loss of trust, is not related to his labor activity, then dismissal for such a reason will not be considered a disciplinary sanction.

Judicial practice shows that dismissal for loss of trust is possible in cases where an agreement on financial liability has not been signed. This occurs if responsibilities for handling funds or commodity values are recorded in the employment contract with him, or he is authorized to sign any documents relating to material assets or finances.

There are special grounds for dismissing a civil servant due to loss of confidence. This category of workers may also be subject to various types official penalties when they commit disciplinary offenses. But in Art. 59.2 of Law 79-FZ “On the State Civil Service” lists specific reasons for dismissal on this basis, namely:

failure to provide information about personal income and income of close relatives;
engaging in entrepreneurial activity;
opening accounts in foreign banks by the employee himself and his close relatives;
participation in the management of a commercial organization, except as permitted by law.

It is not permitted to dismiss pregnant women on such grounds during the period next vacation or employee illness.

The termination of employment due to loss of trust is described in the video

Dismissal procedure

The procedure for dismissal for loss of confidence consists of several stages. Only strict adherence to the entire sequence of these stages can guarantee the legality of termination of an employment contract under clause 7, part 1 of Art. 81 of the Labor Code and will allow the organization to protect its rights in the event of legal disputes about the legality of such dismissal.

Some facts

The main points considered by the created commission are: 1) determination of the circumstances under which the damage was caused, indicating the place, time and method of application 2) if necessary, inspect the places where the damage was caused 3) identify the cost of damage according to at this moment 4) identify the persons who caused the damage 5) collect evidence 6) establish the degree of guilt of these persons and determine the amount of the penalty 7) determine the causes and conditions that caused the damage.

If an employee’s actions are discovered that could cause a loss of trust, they should be documented. Standard form There is no such document; in practice, such employee actions are reflected in the memorandum. The employee who discovered the result of such actions or witnessed them indicates in the report his data, the date and time of the event and describes all the circumstances. If a shortage of material assets or money is detected during an inventory, an act is drawn up.
Based on these documents, an official investigation is organized to determine the culprit. For this purpose, a special commission of at least 3 disinterested competent employees is created. The commission conducts an investigation even in cases where no material damage was caused, but the employee’s corresponding actions could have caused such consequences. In addition to his own internal investigation, the head of the organization has the right to contact law enforcement agencies. However, establishing the employee’s guilt by the employer himself is sufficient for dismissal due to loss of trust.
The conclusions made by the commission and the information received are recorded in the relevant act. One of the mandatory points of this document is the conclusion that for the actions taken, the employee loses trust in the employer. The employee must be familiarized with the act against signature; if he refuses to sign, an act is drawn up in which the members of the commission sign.
Before applying a penalty to an employee, you should receive an explanation from him in writing in accordance with Art. 193 Labor Code of the Russian Federation. If an employee does not agree to write an explanation, it is also better to submit a request for it in writing. If the employee does not provide an explanation within 2 working days, the employer draws up a report about this. If there is a written requirement to provide explanations and an act, an employee can be dismissed without an explanatory note.
Further termination of the employment contract is carried out according to general rules: a termination order is created, a calculation note is prepared, and a corresponding entry is made on the employee’s personal card and in the work book. All documents necessary for dismissal are issued to the employee in accordance with the general procedure.
Thus, in order to avoid litigation, it is necessary to strictly follow the procedure for dismissal due to loss of confidence.

Dismissal for loss of confidence - one of the most unusual ways to terminate an employment relationship with an employee. When applying this legal justification, the employer must take into account all the legal nuances of such a procedure, otherwise the employee can easily appeal such a decision in court.

Who exactly can be fired and who cannot?

A special category of employees who fall under loss of trust can be categorized as: materially responsible employees. Most often, the basis for termination of activity is violation of an agreement (collective or individual) on financial liability.

How to determine whose job duties are charged with servicing monetary and commodity assets?

The employer, on the basis of an existing report (report, final audit report, document on shortage or loss of material assets, etc.) can conduct internal investigation case, collection and processing of information.

Such work is recorded by an internal order for the institution, brought to the attention of all employees, and carried out through a commission.

The natural conclusion to completing the investigation is act(supporting document), which contains the time of the commission and the composition of the commission, the legally correct wording of the investigation, the classification and description of illegal actions, the degree of proven and admitted guilt, a list of evidence, a legally confirmed reference indicating a loss of confidence in the employee, and a possible measure punishments (reprimand, dismissal).

The document is endorsed by all members of the commission and must be read out to the guilty employee against signature.

Only after collecting sufficient evidence can proceed to dismissal.

Dismissal procedure

The dismissal procedure is quite simple, and legal errors are unacceptable.

Conducting an investigation. If misconduct is discovered by the employer, dismissal is carried out within one month (excluding sick leave and vacation). From the moment the offense is discovered, the offender must be eliminated no later than six months. And if illegal facts are revealed by an audit or audit, then the statute of limitations for similar case is calculated in two years.
Registration of results. To begin with, the act records the fact of detection of an illegal action. It can be issued in the form of a memo, report, or statement. The document indicates the data of the person who discovered such acts, the date, time, place and circumstances that led to the discovery of such a case.
Based on the results of the inspection report, two orders are issued: “On the application of disciplinary sanctions in the form of dismissal”. In the preamble of the document, one can talk about the fact that an employee has committed an offense, a violation of clauses of an employment contract or another local act of the organization. It is mandatory to familiarize the employee with the order within three days. If the employee refuses to sign the order, a corresponding note is made in the document. Next document - "Order of dismissal". It can be designed either by standard form T-8, or on the approved letterhead of the organization.
After issuing the orders, the personnel employee makes an entry in the work book that the employee of the organization is “Dismissed on the basis of clause 7, part 1, art. 81 TK".

In accordance with current labor legislation, the dismissed employee will be accrued wages and compensation for unused vacation.

If the damage caused by the employee does not exceed the average monthly wages, then the employer has the right to deduct it from payments upon dismissal.

If the offense was not committed at work

If an employee commits an illegal act during off-duty hours, no internal investigation is being conducted. But in order to avoid litigation, it is necessary to prepare cumulative material (evidence base) that will confirm the legality of the dismissal.

Features for government or military service

Government officials, law enforcement officers, or professional military personnel may be subject to federal regulations.

In this case, the order of dismissal due to loss of confidence will be issued within the framework of the “Regulations on the passage of military service", and the main criteria can be:

failure to provide or unreliably provided information about one’s income and immediate family;
implementation of entrepreneurial activities;
participation in the administrative apparatus commercial organization with remuneration (receipt of income).

Such criteria are similar for all types of public and military service and are regulated by the laws “On the Prosecutor’s Office” and “On the Police”.

Employer's liability in case of illegal dismissal of an employee

In case of illegal dismissal, the employee may be reinstated in his position by a court decision. At the same time, this risks the employer:

Payment for forced absences in accordance with the average salary.
Compensation for moral damage to the victim.

And when an employee contacts labor inspection the head of the organization or the enterprise itself will be forced to pay fine.

Consequences for employees

An entry in a work book of this kind is unpleasant and threatens a long-term interruption of work experience and a court ban on the implementation of this type of activity. But this is for civilians. Civil service employees or military personnel lose more: interrupted service, deprivation of numerous benefits, removal from service.

In any case, an employee dismissed with such wording will have to leave his personal comfort zone for a long time and try to realize himself in other areas with a corresponding loss of qualifications and financial resources.

This type of dismissal is presented in detail in the program.