Why you can fire an employee and how to do it correctly. How to fire an employee without his desire according to the law Dismissal on the initiative of the employee

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

At your own request

Many managers believe that dismissal of an employee at his own request is the best and easiest option. The subordinate writes an application, works for 14 days, receives a full payment and picks up the work book. And everything is in the bag. But this is not entirely true; there may be many nuances here. For example, if a person can no longer fulfill his job duties due to certain circumstances (say, he entered a university, retired, moved to another city for permanent residence, was admitted to hospital treatment for an indefinite period, etc.), then he must be fired on the date he indicates in his application. That is, he should be released without detention. In all other cases, management may oblige the employee to work for the required 2 weeks until a replacement is found.

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

Dismissal at the request of management

In order for an employer to fire an employee on his own, he must have good reasons for doing so; desire alone, of course, will not be enough. In addition, if the employer does not fully take into account all the requirements of the Labor Code regarding dismissal, the employee can easily challenge such a decision in court. So, what is the correct way to fire an employee on the initiative of the director? Firstly, it is worth understanding that the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employment contract with a subordinate can be terminated. In particular, these are the following cases:

1. Complete liquidation of an enterprise or individual entrepreneur.

2. Reduction of staff or number of employees.

3. The employee’s inadequacy for the position held due to insufficient qualifications.

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

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

6. One-time gross violation of duties:

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

7. Commitment of guilty actions by an employee who services commodity and monetary assets, which led to a loss of trust on the part of his superiors.

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

9. Making a decision on what resulted in a violation of the safety of property or its unlawful use (this applies to the manager, his deputy, the chief accountant).

10. One-time gross violation of labor duties by the boss or his deputies.

11. Providing false documents when applying for a job.

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

Liquidation of an organization or staff reduction

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

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

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

You are not suitable for us

If a subordinate fails to cope with his responsibilities, you can also say goodbye to him. However, the fact that he is not fit for his position still needs to be proven. The employee's knowledge will have to be tested. For this purpose, an extraordinary certification is carried out. An enterprise order creates a certification commission of several people (the manager does not have to be included there). A special provision for employee certification should also be developed. It specifies the timing, evaluation criteria and procedure for conducting such an event.

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

How to fire an employee under an article for inadequacy of the position he occupies? To do this, it is necessary to obtain a conclusion from the commission that the person failed the certification. But that's not all. The employee will need to be given a second chance, and after a while, another check will be arranged. If this time the commission members recognize the employee as having failed the certification, then he can be fired. However, remember that a person can try to appeal such a decision in court.

Violation of labor discipline

How to fire an employee if he has violated labor discipline? In this case, you need to be very careful, since even the slightest mistake can lead to the employee being reinstated by a court decision. Firstly, it is worth remembering the following points:

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

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

How to fire an employee for absenteeism?

Well, what's so complicated about that? - many will ask. The person did not show up for work and did not notify his superiors about his absence, which means that he can be fired immediately for absenteeism. But it's not that simple. Even if the employee was absent from work for more than 4 hours in a row or the entire working day, you must obtain an explanation from him. In addition, the employee may have a valid reason. If the next day he brings a sick leave certificate or, for example, a certificate of blood donation, then he will not be able to say goodbye to the employee.

Sometimes it happens that a subordinate disappears altogether, does not show up at work for weeks, and does not answer phone calls. How to fire an employee in such a situation? You need to send him a letter at his home address asking him to come to work within a certain period of time (for example, 5 days) and write an explanatory note. At the same time, it is necessary for his immediate supervisor to draw up written reports about the person’s absence from the workplace. If during this time the employee does not appear, you can draw up a dismissal order. A sample of such a document might look like this:

Appearing drunk

If an employee comes to work drunk, it is, of course, prohibited to allow him to perform his job duties in this state. However, it is very important to record the fact that the employee is intoxicated. The immediate supervisor must draw up a memorandum on him (addressed to the employer). It is important not only to indicate that you suspect that the subordinate is “under the influence.” Describe the signs of intoxication you notice: the smell of alcohol, incoherent speech, lack of coordination, etc.

If possible, create a special commission to investigate this case. It is also necessary to draw up a report documenting the employee’s condition.

It will be even better if you send your subordinate for a medical examination. For example, it can be carried out by a narcologist. A medical report, a commission report, and witness testimony are the most important documents that give every reason to say goodbye to an employee who likes to have a drink during working hours.

When the employee is already sober, demand from him a written explanation of his action. If he refuses to write such a paper, draw up an act about this too. After all these procedures, write a dismissal order. A sample wording is as follows: “Dismissed for appearing at work in a state of alcoholic (toxic, narcotic) intoxication, clause 6, part 1, article 81 of the Labor Code of the Russian Federation.” Date the order on the day it was issued, and not on the day the employee arrived “tipsy.”

Dismissal while on sick leave or vacation

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

If the company is liquidated, then all employees can be fired (even if they are on vacation or sick). Also, an employee who is on sick leave can pay himself. That is, dismissal at one’s own request, even if the employee has an open certificate of incapacity for work, is allowed.

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

How to fire an employee on sick leave at the request of the boss? As already noted, this will not work. You definitely wait for him to go to work. And only then do you decide on dismissal, if there are grounds for it.

Other reasons for dismissal

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

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

Special grounds

A very interesting case is the termination of a contract due to loss of trust. How to fire an employee on this basis? Many employers forget that in this way, only those employees whose activities are directly related to the maintenance of commodity and monetary assets can be fired. For example, the chief accountant does not fall into this category. He should not receive money or other valuables from checks. For this reason, it is also impossible to say goodbye to the merchandiser, controller, labeler and other persons who are not financially responsible.

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

Dismissal of unwanted employees

Many companies have employees who, although they perform their duties well and do not violate discipline, are, for example, very talkative or like to undermine their superiors, which can harm the company. Of course, we are not talking about a trade secret, nevertheless, many managers would like their subordinates to talk as little as possible about the successes or failures of the enterprise, its corporate policy, etc. How to fire an unwanted employee? Naturally, it will not be possible to say goodbye to an employee for his long tongue. We will have to look for legal grounds. Perhaps everything in his work is not so smooth, and he can be brought to disciplinary liability, his suitability for his position can be doubted, and finally he can be fired under an article. In a word, here every leader must show ingenuity and intelligence. You should not rashly write an order and fire a subordinate, for example, for violating discipline, if he has not had a single reprimand before. It would also be a mistake to fire him due to a reduction in staff, if in fact no reduction is expected. The main thing is that from the standpoint of the law everything is perfect, and the employee has no grounds to sue.

Calculations when leaving work

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

Such situations are not uncommon at an enterprise when a manager is forced to dismiss an employee under an article. Legally, such a concept does not exist. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for removing an employee from a position can have an extremely negative impact on his future employment. Let us next consider some labor articles on dismissal.

Reduction or liquidation

This is one of the reasons why dismissal may be made. According to Article 81, paragraph 4, only the chief accountant, the manager and his deputy can be dismissed from office in the event of a change in the owner of the company. This provision does not apply to other (ordinary) specialists of the enterprise. When staffing is reduced, some categories of specialists cannot be dismissed from their positions by law. Such “untouchable” employees are considered to be those who have long and uninterrupted experience in a given company or are the only breadwinners in the family.

Inconsistency

As the Labor Code states, dismissal under Article 81, paragraph 3 can be carried out due to incompetence if the specialist is insufficiently qualified, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

Director of the enterprise.
Representative of the HR department.
The subject's immediate superior.

The certification is confirmed by the relevant order. The subject receives a task that does not go beyond the scope of his job description and corresponds to his qualifications and specialization. If the task, in the opinion of the specialist, was not drawn up in accordance with his duties, then the results of the certification can be challenged. To do this, within the period established by law, a complaint is written to the labor inspectorate and a claim is filed with a judicial authority. Based on the results of the certification, a final report is drawn up.

Transfer to another position

Dismissal under Article 81 is permitted if it is impossible to send a specialist, with his written consent, to perform other professional tasks at the enterprise. This may be a free position corresponding to the employee’s qualifications, or a lower or less paid position that can be performed by him taking into account his health. In this case, the employer is obliged to offer all vacancies that meet the above requirements and are available in a specific area. The manager is obliged to offer activities that need to be carried out in another territory if this is expressly provided for in an employment, collective or other contract or agreement. The specialist may refuse the options provided. In this case, the manager can fire him.

Failure to fulfill duties

Dismissal under Article 81, paragraph 5 has a number of features. In particular, a manager can dismiss an employee if the employee repeatedly fails to fulfill his duties without good reason, and a disciplinary sanction is imposed on him. The latter is allowed in the form:

reprimand;
comments;
dismissal from office.

If there are valid reasons for non-fulfillment of duties, the employee must set them out in writing.

Absenteeism and tardiness

A specialist may be absent on site for various reasons. If they are valid, they must be confirmed by relevant papers. For example, if an employee gets sick, he provides sick leave. If the reasons for absence are not valid, then this is called truancy. All circumstances for which the specialist was not at work are set out in writing. The decision to recognize or not recognize them as respectful is made by the head. If there is a need to be absent from the enterprise, you must first write a corresponding statement. It is drawn up in 2 copies, on which the director puts the note “I do not object.” The situation with delays is somewhat more complicated. An employee’s absence from the workplace for more than 4 consecutive hours during a shift (day) will be considered a single gross violation. Thus, if a specialist is an hour late, he cannot be dismissed from his position for this reason. But in case of repeated such violations, disciplinary action may be imposed followed by dismissal.

Embezzlement and theft

These reasons are considered one of the most indisputable of all the circumstances for which dismissal can be carried out under an article of the Labor Code. When committing theft, including petty theft, of someone else's property (in this case, belonging to an enterprise or other employees), its waste, damage or destruction, established by a resolution of the body or officials authorized to consider cases of administrative offenses, or by a court verdict entered into into effect, the specialist is relieved of his position.

As can be seen from the text of the norm, an appropriate act is required, which, in essence, is the result of an investigation. However, often in practice, management shows leniency and offers dismissal at their own request. The article in this case will be different. Theft or other serious violation can affect not only the reputation of the employee himself (even if he is innocent), but also the enterprise itself. The consequences in such situations are almost always dismissal. Under what article to relieve an employee from his position is the choice of the manager.

Drunkenness

The legislation notes several significant nuances to the dismissal procedure for this reason. In this case, a number of conditions must be met. First of all, the fact of being in a state of intoxication directly at the workplace must be recorded, and not just drinking alcohol. Also, the reason will act as a significant circumstance only if the employee appeared at the enterprise in this form during his shift. Thirdly, intoxication is considered not only the state after drinking alcohol, but also any other state that arises from the use of narcotic or other toxic substances.

Loss of trust

Only financially responsible employees can be fired for this reason. These include, in particular, those who have access to money or other assets of the enterprise, receive them, distribute them, store them, etc. Such financially responsible persons may be:

Cashier.
Warehouse Manager.
Accountant.
Economist.
Salesman.
Forwarder and so on.

Loss of trust may be the result of intentional misconduct or negligence, a careless attitude to one's duties. As in the case of absenteeism, the employee's guilt must be proven. A report, audit or inventory report can confirm an employee’s unlawful actions.

Dismissal at will: article Labor Code

This is the most common way to terminate a contract. Every day, many employees, of their own free will or on the recommendation of their superiors, vacate their positions in this way. However, from a legal point of view, this will always be a voluntary dismissal. Article TC No. 80 regulates this procedure. It is worth noting that it does not present such difficulties as in other cases. Thus, if an employee commits any disciplinary offenses, his guilt must be proven.

If dismissal is made at one’s own request, the article of the Labor Code of the Russian Federation only requires that the specialist must notify the employer 2 weeks before the expected date of departure of his intention. In general, the procedure for obtaining dismissal from office in such cases is not difficult. As in other situations, a corresponding entry is made in the labor record: “Dismissal under Article 80.” To begin this procedure, the specialist must write a statement. The employee has the right not to explain the reasons for his decision. The Labor Code article “Dismissal on one’s own” does not carry any negative consequences. However, you should be prepared for the fact that when applying for a new position, the head of another company or a representative of the HR department will be interested in the reasons for this decision.

Design features

The dismissal procedure under this article must be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be followed. There are different stages for each case. However, in any situation, failure to comply with any of them can lead to negative consequences. In particular, an employee can appeal against unlawful actions of the employer.

Witnessing a fact

If there is any violation, this stage is considered mandatory. As stated above, in order to be dismissed due to drunkenness, it is necessary to demonstrate intoxication directly during working hours, and not just the direct fact of drinking alcohol. Theft is proven in 3 stages. In particular, the legislation requires documentary evidence of the offense, as well as a ruling or sentence. Only after this can dismissal occur.

Warning

This stage also has its own characteristics, which depend on the reason why the employee is leaving. For example, upon liquidation of a company with subsequent dissolution of staff, any other change in the routine of activities at the enterprise and reduction in the number of employees, the employer is obliged to notify specialists 2 months before the date on which these events will be carried out. The same conditions are observed when an unqualified employee is dismissed from his position or when the results of his certification are unsatisfactory. If an employee commits a violation (failure to fulfill duties, absenteeism, non-compliance with company regulations, etc.), the employer is obliged to obtain a written explanation from him. After this, the manager has a month to apply disciplinary action to the employee if the reasons are regarded by him as disrespectful. Only one penalty may be applied for each violation. If, for example, a reprimand was issued for absenteeism, then it is impossible to fire the employee for the same offense.

Introduction to the specialist

This stage consists of notifying the employee and presenting him with the appropriate order. The latter indicates the reason why he is dismissed from office, the basis and date. The law requires the signature of a specialist on this document. If the order is refused to be certified, an act is drawn up in the presence of witnesses.

Explanatory

The need for this paper has already been mentioned above. The employer must require the employee to provide a written explanation of his conduct. At the same time, the law does not oblige the employee to write this paper. He has the right to refuse the employer. However, the absence of an explanation does not exempt him from disciplinary action. In any case, it will be issued 2 days after the above requirement is presented.

Order

The law requires the publication of two such acts. The first order must confirm the imposition of a penalty in the form of dismissal, and the second acts as a basis for terminating the employment contract. In most cases, the second edition is sufficient. All regulatory documents must be attached to this order. These include, in particular:

Details of acts and reports.
Explanatory (if available).
Other documents that confirm the existence of a valid reason for releasing the employee from his position.

Dismissal at will (Article 80) provides as a mandatory attachment a statement from a specialist. In this case, there is no need to write an explanatory note; you just need to notify the employer of your intention in time.

Personal documents

The employer is obliged to issue the employee his work book on the last day of the employee’s stay at his enterprise. It should have a corresponding mark. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the manager’s decision. To do this, he needs to contact the labor inspectorate or court.

Compensation and payments

They are based on the cost of the dismissal clause. For child care, in the event of staff reduction, liquidation of a company, or on the personal initiative of an employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of release from office. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation and benefits.

Consequences for the employee

They can be different and depend on the article that is indicated in the work book. This can cause various kinds of problems to arise during subsequent employment at another enterprise. Conventionally, the reasons for dismissal are divided into three categories. Each of them provides certain consequences. Thus, the articles are distinguished:

Related to the reorganization of the company. If the enterprise complies with the law, the employee must be provided with assistance in placing him in a new place. In this case, the consequences for him are only positive.
Not indicated in the work book. For example, there may be a note that the employee vacated the position on his own initiative, but in fact his serious misconduct was simply not made public in order to avoid a scandal. In this case, no particular negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
Specified in the labor contract. They can significantly damage your reputation. But in some cases it makes more sense to be honest.

Appealing a manager's decision

If an employee is dismissed without sufficient or legal grounds for this, he has every right to go to court. The authorized body, in turn, at the request of the employee, may make a decision to recover compensation for moral damage from the employer. If the manager’s actions are recognized as unlawful, the employee has the right to ask to change the wording of the reason to “dismissal on his own.” In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he will be given a duplicate. In this case, all entries that were present in it are transferred to the book, with the exception of the one that was declared illegal. The procedure for appealing a decision of a manager is established in Art. 394. In addition to the court, an employee can contact the labor inspectorate and initiate an internal audit at the enterprise to determine whether the activities comply with the law. As practice shows, such litigation does not happen very often. Typically, employees are fired without conflict or fuss.

The general procedure for registering termination of an employment contract is regulated. This article describes an algorithm of actions that must be followed.

Termination of an employment contract is formalized by order (instruction) of the employer. Usually a unified form is used, which is approved.

The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

According to general rules, the day of termination of an employment contract is always the last day of work of the employee, with the exception of cases where the employee did not actually work, but retained his place of work.

On the day of termination of the employment contract, the employer is obliged to:

issue a work book to the employee (if the employee is not at work on the day of dismissal, he is sent a notice of the need to pick up the work book or agree to have it sent by mail);
make a settlement with it in accordance with;
upon written request of the employee, issue certified copies of documents related to work.

An entry in the work book about the basis and reason for termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.

There has long been a dispute among HR specialists regarding which wording to use: “the employee is fired,” “the employment contract is terminated,” or “the employment contract is terminated”? The Labor Code does not give a clear answer to this question, so employers often choose the wording at their own discretion.

Grounds for dismissing an employee

1. Dismissal during the probationary period

The establishment of a probationary period when hiring is regulated by Art. 70 TK. It provides a list of employees for whom a probationary period is not established:

persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
pregnant women and women with children under the age of one and a half years;
persons under the age of 18;
persons who have received secondary vocational education or higher education in state-accredited educational programs and are entering work for the first time in the acquired specialty within one year from the date of receiving vocational education at the appropriate level;
persons elected to an elective position for paid work;
persons invited to work by way of transfer from another employer as agreed between the employers;
persons concluding an employment contract for a period of up to two months;
to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

During the probationary period, personnel officers must record any deviations in the work of the new employee using memos and reports. When the probationary period ends and the employer evaluates the newcomer’s performance as unsatisfactory, he must document the validity of his decision.

The employer may terminate the employment contract before the expiration of the probationary period if the result is unsatisfactory, but he will need to notify the employee in writing (in notification format) no later than three days in advance, indicating the reasons that served as the basis for making such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.

If an employee refuses to sign a notice, a corresponding act is drawn up, which records the fact that the employee has read the notice and refused to sign it. Based on the notification, order T-8 is issued to terminate the employment contract. If an employee refuses to sign an order, then at the bottom of the order the personnel officer writes by hand that the employee was familiar with the order, but refused to sign, or a corresponding act is drawn up. In any case, it is important to record the fact that the employee has read the order.

An employee can also terminate an employment contract at his own request during a probationary period. To do this, he needs to submit an application, but he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TK, will be three calendar days. The dismissal itself is made on the basis of (termination of the employment contract at the initiative of the employee).

2. Dismissal at your own request

Which article of the Labor Code should you refer to: .

An employee has the right to terminate an employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless a different period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter. By agreement of the parties, this period may be reduced.

In cases where dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains the grounds when this option is possible: enrollment in an educational institution, retirement, established violation of labor legislation by the employer, etc. Labor relations practice shows that there are many more reasons for reducing notice periods. For example, an illness that prevents the continuation of this work, provided there is an appropriate medical report; moving to another area ().

The list of valid reasons for dismissal on the day the application is submitted can be enshrined in the internal labor regulations of the organization or in the collective agreement.

Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be denied an employment contract. For example, in Art. 64 of the Labor Code states that it is prohibited to refuse to conclude an employment contract to employees invited in writing to work as a transfer from another employer.

Upon expiration of the notice period for dismissal, the employee has the right to stop working. On the last day of work, the employer must:

issue the employee with a work book;
issue other work-related documents upon written request from the employee;
make a settlement with him.

How to prepare documents?

When an employee has the right to reduce the notice period, he writes a dismissal date, which is binding on the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to benefits, but asks to be fired early. For example, he writes a statement on May 15, and asks to fire him on May 19. In this case, the employer can act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, then he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires two weeks notice and asks to write a new application.

Based on the order, an entry is made in the work book (this is done on the last day before the book is issued, so that the employee immediately signs in the book for recording the movement of work books).

3. Dismissal by agreement of the parties

Which article of the Labor Code should you refer to: .

The basis for dismissal “by agreement of the parties” was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: “An employment contract can be terminated at any time by agreement of the parties to the employment contract.” No matter how such a basis for dismissal is perceived, one must proceed, first of all, from the fact that the word “agreement” itself indicates a peaceful basis for termination of the employment relationship.

Despite the fact that the agreement is not provided for by the Labor Code, it is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to expiration of the employment contract

Which article of the Labor Code should you refer to: .

The grounds on which a fixed-term employment contract is concluded are stated in. Most often - for the duration of the duties of an absent employee, who retains his place of work.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a specific date, which is specified in the contract itself. Three days before this date, the employer is obliged to warn the employee about the expiration of the period by means of a notice.

Sometimes the expiration date of an employment contract cannot be established in advance; in this case, the contract does not indicate the expiration date, but a condition. In this case, there is no need to notify about the termination of the employment contract, since the very fact of the main employee returning to work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code states how to formalize a disciplinary sanction. The employer's action algorithm in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two working days). Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action. If there is or is no explanation, the employer makes a decision based on its assessment of the employee’s actions.

The timing of the application of the penalty must be taken into account - no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the date of commission of the offense.

A report on the commission of a disciplinary offense is sent to the director (the person who can make decisions on this issue). And the employee is given a notice against signature with a requirement to provide a written explanation. If he does not provide it, then an act is drawn up.

If misconduct is proven, disciplinary action is taken. In case of “mild” violations, the employee is first reprimanded. At the same time, the order to apply a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to treat a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until a violation of labor legislation is established.

Registration of such a situation begins with drawing up an act for each working day stating that the person is absent from work for an unknown reason (in the first act the time of absence is indicated “from ... to”, and in the rest - “during the entire working day”).

Acts on the absence of an employee should first be drawn up daily, in case of long-term absence - as of the day of submission of the next time sheet.

Letters are sent to the employee asking for an explanation of the reasons for failure to appear (they must be sent by registered mail with a list of attachments).

If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Civil Procedure Code of the Russian Federation, may, through the court, recognize the missing employee as missing. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested parties, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6 of Part 1 of Art. 83 Labor Code of the Russian Federation.

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In almost all organizations there are employees who do not cope well with their duties: they are often late, do not meet deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss’s verbal comments do not work, it is necessary to apply disciplinary sanctions: a reprimand, a reprimand, or, as a last resort, dismissal.

In Art. 81 of the Labor Code of the Russian Federation specifies the reasons why a contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of his work duties (clause 5 of Article 81 of the Labor Code of the Russian Federation).

Next, we will consider in what cases an employee can be fired for systematic violation of labor duties, what conditions are important to take into account and how to competently formalize the imposition of a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misconduct for which you can be dismissed under the article

Dismissal under this article is possible if an employee commits actions that are prohibited by an employment contract, job description, local regulatory act, order of the employer, labor legislation and other regulatory legal acts containing provisions of labor law, or, conversely, if the employee does not commit the actions provided for in these documents actions.

Paragraph 35 of the Resolution of the Plenum of the Armed Forces of the 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” refers to such violations:

Absence of an employee from work or workplace without good reason;
Refusal by an employee, without good reason, to perform job duties in connection with a change in labor standards in accordance with the established procedure, since by virtue of the employment contract the employee is obliged to perform the labor function specified in the employment contract and to comply with the internal labor regulations in force in the organization;
Refusal or evasion without good reason from a medical examination of workers in certain professions, as well as an employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

This list is given in the resolution of the Plenum of the RF Armed Forces and, of course, is not exhaustive. Such violations include any failure or improper performance by an employee of his or her job duties without good reason. When dismissing for repeated failure to fulfill job duties, the employer must have a clear position and irrefutable evidence of the employee’s guilt. The obligation to provide evidence of the legality and validity of applying a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, rests with the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631/2015).

Conditions required for dismissal

Before applying a disciplinary sanction in the form of dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. Requirements for the employee must be recorded in documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, has been familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often we receive complaints from clients that their employees do not fulfill their job duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation into compliance with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The employee has an outstanding disciplinary sanction

A disciplinary sanction or reprimand should not be lifted early and its validity period should not expire (one year from the date of issuance of the order to apply the penalty). A disciplinary sanction can be issued as a reprimand or a reprimand. For dismissal, one outstanding disciplinary sanction is enough; for the second, you can already be fired. If an employee has several disciplinary sanctions, this will strengthen the employer’s position, as it indicates that the employee was given a chance to improve. In this case, dismissal is a last resort, because previous disciplinary sanctions had no effect on the employee.

3. The severity of the offense and the circumstances of its commission

In accordance with paragraph 53 of the Resolution of the Plenum of the Armed Forces of the 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,” if a dispute arises, the employer will need to provide evidence indicating that:

– the employee committed a disciplinary offense;

– when imposing a penalty, the severity of this offense and the circumstances under which it was committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude to work were taken into account.

This means that the offense must be proportionate to the punishment. A disciplinary sanction in the form of dismissal cannot be applied for an employee being 15 minutes late if there were no previous complaints about the employee’s work. It is also prohibited to apply multiple disciplinary sanctions for the same act. For example, you cannot reprimand an employee for one delay and fire him for the same. The employer’s behavior will be unlawful if he “accumulates” the employee’s tardiness and one day reprimands and dismisses the employee.

4. Time limits for applying disciplinary action

A disciplinary sanction can be applied within one month from the date of discovery of the misconduct and six months from the date of its commission (based on the results of an inspection of financial and economic activities or an audit - no later than two years from the date of the commission of the disciplinary offense). The day of discovery of the offense is the day when it became known that the offense had been committed.

Please note that the monthly period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Procedure for imposing disciplinary sanctions

Dismissal for repeated failure to fulfill job duties requires strict adherence to the procedure. Let's look at what documents need to be completed:

1. Memo on failure to fulfill labor duties

The employee's misconduct must be recorded by the immediate supervisor in a memo addressed to the general director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for applying disciplinary action.

2. Act on committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a HR specialist. The employee must be familiarized with the act against signature.

3. Notice of provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations have been requested, such a notice must be drawn up in writing and handed to the employee against signature. In case of refusal to receive the notice, it must be read aloud to the employee and an act of refusal to receive the notice must be drawn up.

If, after two working days from the date the employee was asked for an explanation, he did not provide it or refused, then a report is drawn up. If there is an act and document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Taking into account the opinion of the representative body

Dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of an employment contract with an employee under clause 5 of Art. 81 of the Labor Code of the Russian Federation, one should be guided by the general rules of dismissal. The following documents must be prepared: an order to terminate the employment contract, a settlement note, a work record book, and the employee’s personal card.

Case Study

A client contacted us to conduct a personnel audit. As part of providing audit services, we also advise clients on all issues of application of labor legislation. One of the company’s employees was a single mother and “actively” took advantage of it. When checking the employee’s personal file, we found a large number of memos about her failure to fulfill her job duties. Previously, the client tried to lay off the employee, but in response she filed a complaint with the labor inspectorate and went to court (although the employment contract was not terminated). The employer’s position was a losing one, since it is impossible to lay off a single mother by law, and the procedure itself was not formalized correctly.

We advised the client to issue an order to suspend the employee's dismissal procedure, and also notify that her position would be retained. Despite this, the issue of dismissal remained relevant for the client; the employee increasingly began to violate labor discipline, and in response to the employer’s comments, she used the argument that she was a single mother. The woman held the position of sales manager, systematically left her workplace ahead of schedule, and went on vacation without permission without warning.

A personnel audit showed that the client’s company maintained personnel records with serious violations and many required documents were missing, as a result of which it was impossible to file a claim against the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to the problematic employee:

draw up a detailed job description for the sales manager, which should describe all responsibilities and indicate to whom the manager reports;
establish in the job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
Establish monthly sales targets to be met by all sales managers.

Only after the employee has approved and familiarized herself with all the specified personnel documents can disciplinary sanctions be applied. For example, for failure to fulfill the sales plan, orders of the manager, violation of labor discipline - a reprimand or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary sanctions were drawn up against the employee; when she committed a third offense, a dismissal procedure was followed under clause 5 of Art. 81 Labor Code of the Russian Federation. The employee asked to be given the opportunity to resign of her own free will, since she did not want such an entry in her work book. The employer met her halfway, and the employment contract was terminated.

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Dismissal at the request of the employer

For whatever reason, an employee goes on a free voyage, it is good if the dismissal occurs by agreement of the parties. But what to do if difficulties arise during the negotiations, even if they are of an official business nature? For example, how to officially dismiss an employee by transfer with his consent, so that he does not have any problems either at his old or at his new place of work?

And yet, cases of voluntary dismissal are much simpler than situations when an employee ceases to cope with responsibilities. In order not to act rashly, the employer must clearly know what reasons exist for dismissing an employee and how to formalize the decision to deprive a person of his position.

Staff reduction

In times of crisis, it happens that you have to cut staff - and this also needs to be done wisely: you should not take decisive steps without understanding how to warn about upcoming changes and how compensation is calculated when an employee is laid off.

When dismissing a person, remember that he may ask to be given leave during the period of notice of layoffs or go for early dismissal. You can also invite the employee to apply for a more modest vacancy, but before doing so, figure out whether your employee is required to move to a position that pays less well. Finally, your financial situation may also change, so it is important to know the process and conditions for lifting a redundancy order.

Disability

Unfortunately, sometimes a person stops coping with his responsibilities due to health reasons. In order to legally file a dismissal due to disability, you need to understand how badly the specialist’s health has suffered - for example, he has become a disabled person of the second or third group.

Other reasons

In addition to the above reasons, there are many more reasons for excluding a person from the workforce. You can fire an employee based on performance appraisal results, for absenteeism (even if this happened only once) and, of course, for drunkenness.

In addition, in addition to typical problems such as incompatibility with the position held and constant lateness to work, some team members indulge in inappropriate behavior and extremely careless handling of company property. In this case, your option is to fire the employee due to loss of trust.

Dismissal at the request of the employee

Difficulties due to the refusal of a position also arise for the employees themselves. Not everyone knows the procedure and features of voluntary dismissal; they are not sure how to write a statement correctly. But what if you need to leave the company at the most inopportune time? Is it possible to quit your job while on sick leave or vacation? There are answers to these questions - you need to look for them in the Labor Code.

After dismissal: to the employer

An employer who has already fired an employee still needs to be on guard. He needs to know the specifics of taxation of severance pay upon dismissal, as well as understand the time frame for issuing a work book. Situations also arise when it is necessary to exclude from the workforce a person who has not rested for a long time: keep in mind that hard workers are entitled to compensation for unused vacation.

After dismissal: employee

According to the law, when voluntarily leaving the workforce, an employee is required to spend another two weeks at the company. But in certain situations, you can resign of your own free will without working off.

Search and find a job, quit a position that no longer suits you, but do not forget to protect the rights of the employee upon dismissal. This is especially important for women. Read whether there are grounds for dismissing a pregnant woman and whether an employee on maternity leave, including a disabled child, can be laid off by law.

There is a statutory procedure for dismissing an employee. The employer must comply not only with the procedure for registering the end of the employment relationship, but also with the procedure for issuing a work book upon dismissal. Because, having issued it at the wrong time, the employer is liable before the law, that is, for its untimely issuance and payment, the enterprise administration bears administrative responsibility.

An enterprise has the right to dismiss an employee who appears at his workplace in a state of intoxication, as well as for drinking alcoholic beverages during his shift. Labor legislation allows dismissal for drunkenness for a one-time offense. But it is important that the procedure is carried out in accordance with the norms and rules, and the fact that the employee is in a state of alcohol, drugs or alcohol.

Sustained changes in a person’s health condition, provoking a violation of vital functions, which doctors call disability, is one of the reasons for terminating the employee’s employment contract with the enterprise where he works. Dismissal due to disability is provided for by labor legislation. There is also a procedure and situations according to which the employment relationship is terminated in this case.

Every able-bodied citizen is guaranteed the right to work. Likewise, the law ensures the rights of workers to safe working conditions, rest and wages, and, paradoxically, the right to dismissal. Dismissal at the initiative of an employee is a right that no employer can challenge. Even if there is unfinished work, even if the employee.

The procedure for liquidating an individual entrepreneur is prescribed by law. Dismissal during the liquidation of an individual entrepreneur is an integral part of the process of terminating the activities of an entrepreneur. All employment contracts concluded by him must be terminated, and employees must be given work books and pay in hand. At the same time, the law establishes compensation for dismissal from a liquidating enterprise. The entrepreneur is allowed to establish independently, as in.

For some categories of working citizens, the state establishes additional guarantees and conditions for the protection of rights and interests. If an employee loses his ability to work, he can be dismissed only in those cases specified in the Labor Code. At the same time, the law does not establish a direct ban on the dismissal of disabled people. And the dismissal of an employee due to a group 2 disability may occur.

Most often, legal disputes and disagreements between employers and their staff arise during measures to terminate employment relations. Dismissal of employees at the initiative of the employer is a rather complex legal topic, and causes a lot of controversy not only among the parties to contractual relations, but also among lawyers and judges. Let's try to figure it out by analyzing the current labor legislation, when and in which ones.

Labor legislation regulates the special procedure for the work of part-time workers, their hiring, registration, and dismissal. There are several reasons for terminating an employment contract with such an employee at an enterprise: his own desire, agreement of the parties, as well as dismissal related to the initiative of the enterprise. The dismissal of a part-time worker at the initiative of the employer must take place exactly in accordance with the specified provisions of the law, taking into account the specifics of the work - internal or.

Reached consent or agreement between employer and employee is one of the grounds for termination of labor relations. But in order to understand what dismissal by agreement of the parties is, it is necessary to analyze the norms of the current labor legislation, and the general legal nature of the concept of “agreement”, to understand the essence of contractual legal relations.

In accordance with the norms of the Labor Code of the Russian Federation, the employer must provide the employee with maternity leave at the birth of a child. Some employees, after maternity leave, decide to quit on their own in order to devote more time to their family, some quit due to the termination of their employment relationship, which was established for a certain period, and dismissal is also possible by agreement of the parties. In some cases, the employee is entitled to.

An employee can be fired for lack of trust, both in private business and in the public service. Only the grounds and procedure for dismissing such persons are slightly different. To figure out how to fire an employee for lack of trust, you must first determine which positions this employer’s right applies to. This formulation of parting with an employee is called dismissal under the article, which means.

An employee may have several reasons for resigning voluntarily: he has found a new job or is going to look for one, he has not gotten along well with his management or co-workers, he is planning to move. Often, a conflict with superiors initiates an employee leaving his position, formally, of his own free will. In any case, regardless of the reason and reason, there is a legally established procedure for the employee’s actions.

If an enterprise (organization) is liquidated, then in this case all its employees will have to be fired. In this article we will try to talk in detail about all the nuances that occur in this situation: how to properly issue notice to employees of dismissal due to liquidation, pay wages, compensation and severance pay.

Among the main reasons for terminating the employment relationship between an employee and an employer, there are both objective and subjective ones. Objective, specified in the norms of the current labor legislation, as general legal grounds. Subjective reasons for dismissal relate, rather, to the interpersonal relationships that were formed in the process of work between the employee and his colleagues, or between him and him.