- Only an employee who bears financial responsibility or works with money or goods can lose trust. If he commits actions that cause damage to the employer (and this can be measured financially), for example, theft, then he may lose trust. The same applies to bribery or other manifestations of self-interest.
- The employer's trust in the employee is manifested in the assignment (job description) to the citizen of the rights and responsibilities in relation to values. Agreement on full financial liability and there is an act of trust.
Important! To dismiss an employee under the article, it is not at all necessary to have such an agreement.
The Russian Labor Code allows the injured person to independently qualify the case, namely, to assess whether this or that act was grounds for loss of trust. The employee may be fired, or may simply be reprimanded, limited to a fine, or dispensed with without punishment at all.
What is the basis for loss of trust:
If violations were committed by an employee other than his primary place of employment, he may still be fired for lack of confidence. In this case, the employer must have a copy of the court decision establishing guilt.
Municipal, military and government employees may be subject to dismissal due to loss of confidence. You can read more about their dismissal.
Who cannot be kicked out of work due to lack of trust?
Which employee cannot be fired due to lack of confidence? It is prohibited to dismiss under such an article:
- a pregnant employee (Article 261 of the Labor Code of the Russian Federation);
- minor (Article 269 of the Labor Code of the Russian Federation);
- an employee who is on vacation or sick (Article 81 of the Labor Code of the Russian Federation) - this can be done upon his return.
What should an employer do?
How and who can be fired for theft, embezzlement, fraud or other illegal acts based on loss of confidence laws?
Reference. The Labor Code or other legislation does not provide for a mandatory document (protocol, etc.) that should record violations.
In the event of theft, embezzlement, fraud or other illegal acts for which there are claims against the employee, The employer must follow the following step-by-step procedure:
- Write a memorandum. In it, indicate the details of the employee who identified the illegal actions, time, place, date, and describe all the circumstances of the case. If information about violations came from law enforcement agencies or other third parties, there is no need to file a report.
- If the inventory shows a shortage or other violations, then a report should be drawn up.
Having these documents, the employer has the right (and obligation) to conduct an internal investigation, which will identify the culprit.
This procedure requires the collection of a commission (by special order of the employer). Its members should not be interested in the final result; they are chosen from among competent persons (at least three people).
It is this body that establishes under what circumstances the violation occurred, where, how it determines what and to what extent the damage was caused (as well as its cost), identifies those responsible, and collects evidence.
The commission records all information received– acts, reports are drawn up, attached to the conclusion of the reference body, etc.
Based on the results of their work, the commission members draw up and confirm with their signatures an act. It should cover the following points:
- what specific actions of the employee led to the loss of trust;
- all the circumstances of the incident are described in detail;
- what is the degree of guilt of the employee;
- what punishment should be applied to him.
The results of the inventory (if it was carried out to determine the extent of damage) must also be attached to the report. Conducting an internal investigation does not mean that the employer should not seek help from law enforcement agencies, but the results and conclusions of the commissions are quite sufficient for dismissal based on loss of trust.
Important! It will not be possible to fire a person if his misconduct is not directly related to his job responsibilities.
Guilt must be proven(testimonies of witnesses, videos from surveillance cameras and other facts of a crime are suitable for this).
After investigation
The commission asks the employee in writing for an explanation of what happened. Within two days, the employee draws up an explanatory note. If he does not do this, then you need to draw up a corresponding act (in it indicate that the employee did not give an explanation within the required period and what motivated this refusal), certified by the signatures of the compiler and two or more witnesses.
If there is such an act, the employer has the right to impose a disciplinary sanction even without explanation from the employee (under parts 1 and 2 of Article 193 of the Labor Code of the Russian Federation).
Having agreed with the conclusions of the commission, the employer creates an order of dismissal due to loss of trust. The order states:
- the date from which the employment contract is terminated;
- Full name and position of the dismissed employee;
- grounds for termination labor relations(commitment by an employee directly servicing commodity valuables of guilty actions that give grounds for loss of confidence in him by the employer, paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation);
- description of documents certifying the employee’s guilt, such as: reports and explanatory notes; inventory list; statement; medical report, etc.
The order is certified by the head. It can be issued in form T-8 or on the official letterhead of the organization. The employee is familiarized with the document within three days (subject to signature). If an employee refuses to sign an order, a report is drawn up, but this will not interfere with dismissal.
Recording violations and settlement
A record of dismissal due to loss of confidence is made in work book and the employee’s personal card with the following wording: “The employment relationship was terminated on the basis of violations on the part of the financially responsible employee, giving grounds for loss of trust, clause 7, part 1, article 81 of the Labor Code of the Russian Federation.”
The order number and date are also indicated. The work book is issued on the day of dismissal. According to current legislation, the organization is obliged to accrue wages and compensation for untaken vacation to a dismissed employee (if vacation pay was taken in advance, it is deducted from the payment), and bonuses.
This is what the entry in the work book looks like upon dismissal due to loss of trust:
In this case, severance pay is not provided. If proven damage has been caused to the employer, the latter has the right to deduct the amount (if it does not exceed the average monthly salary) from dismissal payments.
Reference. If the damage more salary employee, then the procedure, procedure and conditions of compensation are decided through the court.
A dismissed employee has the right to file a complaint with labor inspection, the prosecutor's office or go to court if due payments were not produced.
If the employee is not guilty
The employee has the right to prove his innocence in court. If the law is on his side, then the employer (even if the dismissal procedure was formalized and carried out according to all the rules) will be obliged to reinstate the employee.
It is possible to agree with management on dismissal “by at will“in the following cases: if guilt is nevertheless proven, and the person who committed the illegal actions agrees with this, naturally, compensating for losses. Such a peaceful agreement does not go beyond the law, and will allow the specialist to maintain his work record and reputation in order.
Terms of termination of the contract
Having discovered theft, theft or other violation, the employer can fire the employee at any day. If a person has received notification of the results of an internal investigation and has read the dismissal order, he may not work for the required period of 2 weeks.
Attention! If the dismissed employee was not given necessary documents after the date set in the order, wages or other funds have not been paid, and he continues to work, then the contract with him is automatically extended.
The employer’s responsibility is not only to receive compensation, but also to issue all required documents and money. Sometimes, by a court decision, it is possible to pay moral damages to an illegally dismissed employee.
What are the consequences?
If there is a lack of confidence, the employee may face a written reprimand, compensation and dismissal. The most difficult thing for an employee is the termination of the employment relationship.
In this case, the length of service is interrupted, and this, in turn, affects the amount of payment for temporary disability: unemployment benefits are not paid for three months, then its amount is reduced. Upon loss of trust, an employee may be prohibited from holding a certain position.– both temporary and lifelong.
An entry in the work book about such a dismissal can interfere with subsequent employment.
Even if the dismissal due to loss of trust occurred by mutual consent - the damage was compensated, all necessary documents were created and submitted - then a similar fact in work history dramatically reduces an employee's chances of getting a good position.
At the slightest point of controversy and the possibility of avoiding such a severance of labor relations, the employee must go to court, and the employer is obliged to conduct a scrupulous and thorough investigation and be confident in the evidence of guilt - in the case of slander and groundless dismissal, the employee has the right to significant compensation.
Video on the topic
This video explains how dismissal occurs due to loss of trust:
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) you can not have any employee, but only one whose work consists of servicing goods and/or monetary values. Service here refers to various operations: issuance, reception, transportation, storage, etc. The corresponding responsibilities must necessarily be contained in job description employee.
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 examining disputes about the nature job responsibilities. This is confirmed, for example, by the decision of the Kirov District Court of Yekaterinburg in the case of 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;
- the 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 of 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 find 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 the 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.
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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.
Due to loss of trust from former employer - legal procedure provided by law, as effective way get rid of an unscrupulous employee. Cases of dismissal due to loss of confidence are now common in labor practice. When applying this legal basis, it is important to correctly formalize each stage of dismissal, since any violations committed during this procedure may serve as the basis for legal proceedings against the former employee. The result of the lawsuit may be the recognition of the employer’s actions as unacceptable and illegal, with consequences in the form of reinstatement at the previous place of work and (or) changes to the work book of the dismissed employee. How should the dismissal procedure be carried out due to loss of confidence? Which employees can and cannot be fired on this basis?
Grounds and conditions for dismissal
As a rule, when it comes to lost trust, the basis for this is paragraph 7 of Article 81 Labor Code RF. You should know that dismissal of an employee due to loss of confidence is permissible under the following conditions:
There is irrefutable evidence that the employee committed guilty actions that caused a loss of trust. Such actions may include theft, proven facts of corruption, negligent attitude towards material assets entrusted to the employee, concealment of information about income or a criminal record for economic crimes, etc. The general list of acts is contained in the Labor Code of the Russian Federation (see clause 7.1 and clause 7, article 81). Dismissal due to loss of confidence must be proven during an internal investigation. There is no need to involve an employee in an administrative (criminal) case.
Such a basis as the article “Dismissal due to loss of trust” can be applied exclusively to employees who personally serve (perform the functions of storage, transportation, reception, issuance, and so on) material assets, especially money. This condition must be documented for the employee, based on specific points labor contract(agreements), job descriptions, agreements on full (collective or individual) financial responsibility, etc. This principle, which applies to cases of dismissal on the grounds discussed in this article, is perhaps most often violated. As an example, we can cite the dismissal “on the seventh point” of employees holding positions such as chief accountant, economist, accountant. Experienced legal experts recommend applying “loss of trust” in relation to this category of employees extremely carefully, focusing on whether the employee is assigned responsibilities for direct contact with funds, the functionality of a cashier or accountant, for example. The absence of such responsibilities for a dismissed “accounting employee” often leads to the fact that in court former employee easily and quickly reinstated by the employer in his position or receives the required compensation.
If the loss of trust of the employer occurred as a result of actions related to the performance of job duties, in connection with the loss of trust will also be considered as a disciplinary measure. For this reason, termination of the employment relationship on this basis will require strict compliance with all stages of the disciplinary procedure within the prescribed time frame.
Dismissal from government or military service
You should know that dismissal due to loss of confidence can be made not only on the basis of the above article, but with the application of federal legislation relating to a specific profession. For example, this applies to persons employed in public service, law enforcement or professional military.
If we consider the dismissal of a serviceman due to loss of confidence, then when issuing an order in this case, one should be guided by the Regulations on the procedure for passing military service, namely the clause on the procedure for dismissing a military personnel. Based on paragraphs. d. 1, 2 parts 3, a serviceman can be dismissed with the wording “due to loss of confidence” if:
Information about the income and property of the employee himself, his wife and minor children is intentionally not provided (or provided incompletely, unreliably).
A serviceman carries out some kind of entrepreneurial activity.
The soldier participates in management commercial organization, receiving monetary payment for this, as well as in the case of activities in the field of management bodies or other bodies of non-profit foreign organizations. These grounds for dismissal have a number of exceptions, all of them are defined by the Federal Law (this edition) “On Military Duty and Military Service.”
There is a case of failure to take measures to resolve (prevent) a conflict of interest, one of the parties to which is the serviceman himself. A commander who was aware of the fact of personal interest of a subordinate who did not take action may also be dismissed.
Similar provisions governing the grounds for dismissal due to loss of confidence are available in federal laws“On the prosecutor’s office”, “On the police”, “On the state civil service” and so on. What remains common in this case is the need to prove the guilt of the dismissed employee and strict adherence to the deadlines and dismissal procedures.
When can you not be fired?
Even in the presence of fully proven guilty actions, dismissal due to loss of trust is not permissible:
In relation to a pregnant woman.
During the period of temporary absence of the employee (vacation or sick leave). In this case, you will need to wait until the employee returns to his work duties.
There is also a restriction for dismissing a minor: dismissal due to loss of confidence will need to be agreed upon with the local labor inspection department and a representative of the commission for minors.
Stages of the dismissal procedure
As mentioned above, dismissal due to loss of confidence for misconduct committed in the performance of direct official duties is classified as disciplinary sanctions by the Labor Code (Article 192). In this regard, termination of employment relations on the basis in question must be carried out in the manner prescribed by Article 193 of the Labor Code of the Russian Federation. This means that due to loss of trust:
Detection and recording of employee’s guilty actions.
Conducting an official investigation.
Receiving a written explanation from the employee (drawing up an act of refusal to provide explanations).
An act on the results (results, conclusions) of an internal investigation.
Issuance of orders.
Dismissal.
Deadlines for dismissal based on loss of confidence
An important condition for maintaining the legality of the dismissal procedure will be termination employment contract within the time limits established for this by labor legislation.
Dismissal due to loss of trust is permissible within one month, starting from the moment the employee’s misconduct was discovered. This period does not include:
The time required to agree on a decision on dismissal with the trade union organization (if there is such a representative body).
Periods of absence of the guilty employee from the workplace (sick days and vacations).
It should be remembered that disciplinary action cannot be taken (in in this case dismissal) later than six months from the date on which the guilty actions were committed. An exception is made for misconduct identified as a result of an audit or financial and economic inspection: in this case - no later than two years.
Internal investigation: basis, documentation
The employee’s actions that caused damage or created a risk of damage to the employer’s material assets must be recorded in an official document: an inventory report, a memo from the immediate supervisor, a report on the identified shortage, etc. Such a document is the basis for starting an official investigation, the purpose of which is either to confirm the employee’s guilt or to establish his innocence.
The powers to conduct an official investigation are vested in a specially created commission. The investigation commission is created by an order for the organization, which contains the reasons for conducting the internal investigation, information about the members of the commission (full name, position, list of powers), validity periods, etc. The commission should include employees who are not personally interested in the results of the investigation, but who have sufficient competence to understand the circumstances of the offense committed.
Commission in established deadlines is obliged, if necessary, to conduct an inventory, as well as request and prepare documentation that will serve as confirmation of the employee’s guilt. Any action taken during the official investigation must be recorded in the relevant acts, official or certificates, and protocols. In addition, the duty of the commission is to obtain an explanation from the employee himself.
Explanation or refusal to explain by the employee
It is recommended that the employee’s request for an explanation for the misconduct be drawn up as an official document of the organization and handed over to the employee against signature. In special cases, for example, if an employee refuses to sign confirming receipt of the request, a statement of refusal should be drawn up. In this case, the demand can not only be handed to the employee personally, but also sent by mail, registered mail with notification.
According to the general procedure provided for imposing a disciplinary sanction, the employee must be given two working days to provide explanations. If, after this period, explanations are not received, a corresponding act (on the failure to provide or on the employee’s refusal to give explanations) must be drawn up.
Results of the commission's work
The result of the commission’s work should be a report on the results of the investigation. The document must indicate:
End date of the internal investigation.
Information about the members of the commission.
Information about the employee involved in the internal investigation.
A statement of the circumstances that gave rise to the official investigation, taking into account the degree of guilt and gravity of guilt.
Evidence of the employee’s guilty actions (or evidence of innocence) in the form of a list with attachments.
Signatures of the commission members.
Dismissal for actions not related to the performance of labor functions
Termination of employment relations with an employee, in cases where the reason for the loss of trust was actions not related to the performance of his work duties, is not considered disciplinary action by law. For this reason, the procedure for terminating an employment relationship is significantly simplified: no internal investigation is required, and the time frame within which a decision on dismissal must be made is up to one year from the moment the employer was informed of the employee’s misconduct. An argument for dismissal can be a copy of a document confirming the fact that the employee committed intentional guilty actions, for example, a copy of a court decision.
At the same time, termination of employment relations must also be carried out in accordance with the procedure established by labor law
Orders
If, as a result of the commission’s findings, a decision was made to dismiss due
Dismissal due to loss of confidence is carried out by issuing two orders:
Order on application of disciplinary sanction. This document contains not only mandatory information about the employee (full name, position, etc.), but also information about the offense committed, indications of the provisions of collective and labor agreements, etc. regulatory documents organizations disrupted as a result of the employee’s guilty actions, circumstances and degree of guilt. No later than three days, the employee should be familiarized with the order and signed. If an employee refuses to sign, a statement of refusal is drawn up, which is certified by the signatures of the commission members.
Filling out a work book
The employer's entry is made in the work book with the same wording of the reason for dismissal as in the order. Example:
On the day of dismissal of an employee, he is given his completed work book.
Employee payments
Despite the fact that we are often talking about actual material damage, this circumstance does not relieve the employer from the obligation to make all required payments. On the day of termination of the employment relationship, the employee must receive the final payment of wages, as well as all bonuses and compensation allowances. Compensation for damage former employee the employer, of course, has the right to claim damages exclusively through the courts.
Dismissal of an employee on the basis provided for in paragraph 7, part one of Article 81 of the Labor Code of the Russian Federation - termination of an employment contract at the initiative of the employer in connection with the commission of guilty actions by an employee servicing monetary (or commodity) valuables, giving grounds for loss of confidence in the employee on the part of the employer - is one of the most difficult dismissals of an employee, since it carries many risks for the employer.
The considered grounds for dismissal are applicable in the event of theft, bribery, or selfish violation by an employee of an offense.
According to paragraph 45 of the Resolution of the Plenum of the Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it must be taken into account that termination of an employment contract with an employee under paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation due to loss of trust is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.), provided that they committed such guilty actions that gave the employer grounds for losing confidence in them. If it is established in the manner prescribed by law that theft, bribery and other mercenary offenses have been committed, these employees may be dismissed on the grounds of loss of confidence in them and in the case when these actions are not related to their work.
The Labor Code of the Russian Federation does not provide a specific list of circumstances that may be considered by the employer as grounds for loss of confidence in the employee. Since the concept of “loss of trust” is an evaluative concept, the employer has the right to independently qualify the employee’s actions, taking into account the specific circumstances of the commission of the offense.
An expression of trust on the part of the employer can be understood as enshrining in the employee’s job description the rights and responsibilities for servicing monetary and commodity values. In practice, agreements on full financial liability are concluded with such employees. However, the existence of this agreement does not constitute prerequisite to dismiss employees on this basis.
From a systematic interpretation of the rules of law, we can conclude that one of the necessary conditions for dismissing an employee under paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is the employee committing guilty actions at the place of work specified in the employment contract.
To lawfully dismiss an employee on the basis of paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must comply with the disciplinary procedure provided for in Articles 192, 193 of the Labor Code of the Russian Federation.
The employer has the right to apply the following types of disciplinary sanctions:
- comment;
- rebuke;
- dismissal for appropriate reasons.
If theft or other selfish misconduct of an employee is detected, first of all it is necessary to draw up a report that should reflect:
- last name, first name, patronymic of the employee who discovered the unlawful actions;
- the circumstances under which the actions were taken;
- date and time of the event.
After drawing up a memo or conducting an inventory, an internal investigation is carried out. To do this, it is necessary to create a commission consisting of at least three people. The commission is created on the basis of an order from the employer, which indicates the names and positions of employees, the purpose, date of creation of the commission, as well as the powers of the commission (if they are not specified in a separate local regulatory act of the employer). It is not established by law which employees should be part of the commission; therefore, any employees of the organization can participate in this commission at the discretion of the employer.
The commission determines the amount of damage, identifies those responsible for causing the damage, collects evidence of the guilt of the person who caused the damage, and identifies the reasons for the offense. The commission also receives explanations from employees suspected of misconduct.
When bringing an employee to disciplinary liability, a written explanation (explanatory note) from the employee is required. The Labor Code of the Russian Federation does not establish the form in which the employer must request this explanation. This can be done by notification, with delivery to the employee against signature. If the employee refuses to familiarize himself with the notice, it is necessary to draw up a corresponding act. After delivery of the notice, the employee has two working days to provide explanations regarding the actions taken. If the employee does not provide an explanatory note within two working days from the date of presentation of the demand, a corresponding act must be drawn up.
The employer's failure to provide these explanations entails that the dismissal under the above article is considered illegal due to non-compliance with the procedure and the employee's reinstatement at work. If there is an act or document indicating that an explanation was requested from the employee, a disciplinary sanction can be applied without an explanatory note from the employee
This legal position is confirmed in judicial practice. In particular, in the Ruling of the Supreme Court of the Russian Federation dated July 30, 2008. N 36-B08-23 states that if an employee refuses to provide an explanation, then dismissal on the day the explanation is requested is not a violation.
All actions of the commission members and information obtained during the investigation are documented in acts, certificates, and memos that are attached to the investigation materials.
Also, the employee’s guilt can be proven in court. In this case, a court decision in a criminal or administrative case can be attached to the investigation materials.
Based on the results of the investigation, an act (conclusion) is drawn up, which reflects:
- actions that the employee has committed and which give the employer grounds for loss of confidence in him;
- the circumstances of such actions and the damage that they caused or could have caused;
- the degree of guilt of the employee;
- possible punishment for the person who committed the guilty actions, etc.
The employee who was the subject of the investigation must be familiarized with the commission's decision against signature. If he refuses or evades signing, a corresponding act is drawn up.
After the procedure described above has been completed, an order to apply disciplinary action is issued.
Dismissal under paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation will take place according to general rules Article 84.1 of the Labor Code of the Russian Federation. After issuing an order to apply a disciplinary sanction, the employer issues an order to terminate the employment contract, draws up a calculation note, makes entries in the work book and personal T-2 card. On the day of dismissal of the employee, the employer makes payments of all amounts due to the employee, issues a certificate of the amount of earnings for two calendar years preceding the year of termination of work, issues the employee a work book.
If the employee is liable for military service, the employer is obliged to send a notice to the military commissariat within two weeks from the date of dismissal.
From the above it follows that dismissal under paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is quite labor-intensive and requires compliance with deadlines and established by law procedures. If the employee challenges the employer’s decision in court and the court reveals violations of the established procedure, the employee will be reinstated in his previous position.
It is worth noting that by following the procedure for applying a disciplinary sanction to an employee in the form of dismissal (conducting an investigation, taking an inventory, asking the employee for an explanation for the violation, applying a penalty, within the period prescribed by law), termination of the employment contract under Article 81, Part One, Clause 7 of the Labor Code of the Russian Federation is recognized as legal.
Dismissal under the article “loss of trust” is the rarest way to fire an employee at the initiative of the employer. In addition, not all employers understand how to apply this article.
According to Art. 81 of the Labor Code of the Russian Federation, loss of trust is the commission by an employee of guilty actions in relation to the employer’s funds or his property. Such a basis can significantly worsen the employee’s reputation and greatly “spoil” his work record. With such a record, it will be difficult for him to get a new job.
The employer must have enough evidence of the employee’s guilt to dismiss him under such an “unpleasant” article. Ignorance of certain subtleties during dismissal leads to numerous lawsuits.
All employees with whom the employer has signed an agreement on full financial responsibility are under the threat of dismissal under this article. It is easier to fire these employees if there is a “loss of trust.” For example, an error in a cashier’s calculations can lead to shortages and, as a result, loss of trust.
To dismiss on this basis, the employer must adhere to a certain procedure for dismissal due to loss of trust.
First of all, the employer must prove that the employee is at fault. This is his duty to labor legislation. This requires a thorough internal investigation. It is worth remembering that one is fired not for the amount of embezzlement, theft or damage, but for the very fact of committing this action.
To do this you need to collect the necessary evidence. This could be witness statements, CCTV footage or photographs. Based on this, the employer must draw up a report on the actions taken and ask the employee for written explanations.
After receiving written explanations, the employer decides to dismiss the employee. He must send him written notice in advance of the imminent termination of the employment contract. The employee must sign that he has read this document.
If the employee refuses to sign the notice, then the employer must draw up an act of refusal to sign the document.
After this, the employer issues a dismissal order. It must indicate the date when the employee is considered dismissed, as well as the reason - “loss of trust.” The employee must also familiarize himself with the order against signature. If he refuses to do this, then the procedure is similar to the procedure for refusing to sign the notice.
On the day of dismissal, the employer must make a full settlement with the employee and pay him:
- wages;
- compensation for vacation if it was not used before dismissal.
There is no talk of severance pay.
If we are talking about compensation for harm to the employer, then on a general basis it should not be more than the average earnings of the employee. The decision on compensation in larger size the court decides.
If the employer does not comply with the dismissal procedure under the article loss of trust, the employee has the right to write a complaint to the labor inspectorate, prosecutor's office or court.
If the employee is completely sure that he did not commit such actions and the dismissal, even in compliance with all the rules, is illegal, then he can also file a lawsuit to declare the dismissal illegal and reinstated in the workplace..
If the employee is still guilty, then you need to try to come to an agreement with the employer and resign “of your own free will”, with the payment of all necessary compensation to the employer. Such action is not against the law; it will help preserve the employee’s reputation and will not “spoil” his work record.