How to dismiss employee? What can be dismissed by an employee? Order of the dismissal - sample. Legitimate order of dismissal of the employee without his desire

MagazineForbes. Published on its website 10 ways to dismiss the employee, warning the reader that the moral and ethical side in some cases remains on the conscience of the employer. At the same time, questions on the technology of these dismissal methods arise. In practice, they are, of course, much more, but TP asked his experts to comment on the most popular.

Agreement of Parties (Art.78 TK RF). It is applied in cases where the employer cannot find a suitable article in the TK RF. Most often, the causes of such dismissals are discussed by TET-A-TET, but some cases become public.

Natalia Plastinina,

The base for separation is not bad, but in most cases requiring additional material costs. Despite the absence in Art. 178 of the Labor Code of the Russian Federation Instructions for the payment of the day off when dismissing the parties to the Agreement, the long-term practice of solving the difficult situation in labor relations showed that the employee agrees to such a "soft, smooth, but not included in his plans" parting only when receiving a certain bonus - compensation for Termination of the employment contract. Since the duties of compensation for the employee during the dismissal under the foundation under consideration in the Labor Code of the Russian Federation is not, then the size of such compensation is determined only by agreement of the parties. In fact, the parties are discussed by the size of this compensation at the level of 2-3 salaries, taking out the size of the existence of the existence while reducing states. However, in special cases (dismissal of the head of any link), this size can be increased or, on the contrary, reduced (for example, when dismissing an unreliable employee, which does not manage to "hook" on other grounds for dismissal). Some parties are consent to terminate the employment contract and at all without compensation.

As a rule, such cases are the dismissal of a trash or an alcoholic in those circumstances when the employer was unable to acquire sufficient evidence of employees with sufficient evidence and could not fail to apply the corresponding situation to dismissal (PP. "A" by 6 h. 1 Art. 81 of the Labor Code of the Russian Federation and paragraphs. "B" p. 6 h. 1 of Art. 81 of the Labor Code of the Russian Federation). It is hard to find agreement with the category of workers who are particularly protected by law, who cannot be fired at the employer initiative (within certain periods of their activities), are pregnant women, people with family responsibilities listed in Art. 261 TK RF. These workers, being in a vulnerable state, are so afraid of losing a permanent job and not to find a new one, which refuse to conclude agreements on the termination of the employment contract, despite the proposed compensation, and in the case of signing such an agreement, they are referred to the courts with their challenge due to their own will .

Thus, in addition to the material side of the question, this foundation has another minus - the high risk of successful challenge the dismissed by the employee. And the practice knows the cases of recognition by the court of an agreement on termination of the employment contract illegal due to the absence of the will of the employee for this action (as an example, the appellate definition of the Supreme Court of the Republic of Buryatia from 18.06.2012 in case N 33-156), in which the court, carefully examined by the parties, came to the conclusion that the actual will of the employee did not have to end labor relations, and there was only a desire to transform labor Relations (The agreement contained the employer's commitment to further accept the employee to work again). In this regard, the court came to the conclusion about the illegality of the dismissal under paragraph 1 of Part 1 of Art. 77 TK RF (by agreement of the parties).

Conclusions: Minuses of dismissal by agreement of the parties:

1. an employee may not agree to the termination of the employment contract, despite the employer profitable terms termination;
2. in most cases, the termination on this basis will require the employer of voluntary payment of compensation, agreed by the Parties in the Agreement on Termination of the Labor Treaty;
3. practice fixes the high risk of challenging dismissal by agreement of the parties due to the vice of the will of the employee. Cases of recognition of such agreements illegal judicial practice exist.

Anna Ustyuhenko,

The agreement of the parties is not applied when the employer cannot find a suitable article in the Labor Code of the Russian Federation, and when the employer soberly estimates the temporary and financial costs that may entail the dismissal "under the article" if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best way Termination of the employment contract. First, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is most simple in the design, thirdly, this dismissal is the most "viable" in case of challenging it from the employee.

I offer our customers such arguments that can help convince the employee in the need to sign an agreement on the termination of the employment contract:

bringing an employee of information that the employment contract will be terminated with it, at best, the employee will be reduced. However, even the reduction is not the best basis for the termination of the employment contract for the demonstration of the future employer. A business is a part of the parties.

The potential employer will not see anything bad in it;

• the Agreement of the Parties allows to save the time of the employee, which can be spent, for example, with a reduction in the number or state;
• the Agreement of the Parties makes it possible to agree on the amount of "compensation" for dismissal, as well as the procedure for its payment.

Reduced state (clause 2 of Art. 81 of the Labor Code of the Russian Federation). The challenger for dismissal should be provided with a list of vacancies, which correspond to its competencies - for example, a similar position, but in the regional branch of the company. If the employee refuses to move, you need to get a written refusal from it. On the reduction of the employer is obliged to warn an employee in writing for at least two months and not to open a reduced position during the year.

Natalia Plastinina,head of Legal Sector:

1. When applying the above-mentioned base for dismissal employers, still make a lot of errors: they offer not all suitable positions; dismissed ahead of timedefined part 2 art. 180 of the Labor Code of the Russian Federation; the employee is fired precisely on time, but during his illness, which is prohibited from. 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for the expression on vacancies or refusal from them, already publish an order for dismissal; do not care about the real basis for reduction; not in time approve a new staff schedule; the provisions of Art. 179 of the Labor Code of the Russian Federation on preferential right to leaving at work; allow for missions in the standard design of documentation.

For these and other reasons, there is still a high risk of recognizing dismissal to reduce the staff of illegal and restoring an employee at work, which is confirmed by numerous judicial practice.

For example, in a labor dispute, the court concluded that the worker was dismissed before the expiration of the two-monthly labor period from the day notice of the upcoming reduction. In this connection, the court recognized the dismissal of an employee-plaintiff under paragraph 2 of Part 1 of Art. 81 TC illegal, restored the plaintiff in the organization in the previous position (decision of the Ugra district court of the Khanty-Mansiysk Autonomous Okrug - Ugra (published November 27, 2012).

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

Indeed, the reduction of state is one of the ways of dismissal requiring strict compliance with procedures. For 2 months, the employee is notified in writing about the upcoming reduction, during this time he is obliged to offer a written any freed or newly created vacancy, the responsibilities on which it can carry out according to its qualifications. It is important to offer not only similar positions, but also downstream positions. But posts in other regions are offered only if this is enshrined in a collective agreement or other local regulatory act of the company.

Also, we should not forget about the preferential right of leaving some categories of employees.

Cooked (sub. "A" of paragraph 6 of Art. 81). If the employee is absent in the workplace throughout the day or more than four hours in a row, dismissal occurs automatically. It is more difficult to dismiss the frequency employee often, but this is possible if the start time is spelled out in the rules of the internal labor regulation, in the labor contract, as well as in the collective agreement, if there is available in the company.

Natalia Plastinina,head of Legal Sector:

Immediately we note that such a basis from the average to the measure of the responsible worker can never wait. The finding does not form such a base for dismissal, as a walk, as the time of the absence of an employee does not reach 4 or more hours in a row. In addition, the risk of incorrect fixation of the event, the incorrect qualification of the absence as a passage, incorrectly compiled documentation for the formation of the foundation provided for by paragraphs. "A" p. 6 h. 1 Art. 81 TK RF.

Cons Application of dismissal on this basis:

the low probability of the very reason;

high likelihood of errors in the procedure for dismissal on the basis;

the high risk of challenging dismissal due to its injustice, illegality, as well as to eliminate the non-deposition labor book;

in those organizations where the staff lawyer is missing, and the management of personnel workshop is entrusted to the secretary, all the above risks of erroneous actions of the employer increase at times. The risk of restoring the dismissed trash is also increasing.
As practice shows, the controlling bodies that check the employers and can recognize the order for the dismissal for the run illegal. What was done in The Altai Territory of the State Labor Inspectorate. As a result of the inspection carried out on the basis of the conversion of a citizen, the state inspector of labor established that in violation of Art. 193 of the Labor Code of the Russian Federation the employer did not request a written explanation on the fact of the lack of in the workplace, did not provide evidence confirming the absence of working time employee without good reason, that is, it made mistakes in the procedure for applying the basis of the dismissal provided p.P. "A" p. 6 h. 1 Art. 81 TK RF.At the request of the State Inspector of Labor, the order of dismissal by the employer was canceled. For violation of labor legislation, the Director is attracted to administrative responsibility in the form of a fine.

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

Even if the employee was absent at work, the amount of time required for the absenteeism, it is unlikely to fire it automatically. In any case, this will require a clearly complying with the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, the "automatic" dismissal for the program may entail the restoration of the dismissed abandonment with the accrual of payment of forced absenteeism.

The discrepancy between the post (paragraph 3 and 5 of Art. 81 of the Labor Code of the Russian Federation). The employer has the right to change the job description of the employee, warning it in two months. Then in additional agreements to the employment contract, the conditions are prescribed on the basis of which indicators are considered unfulfilled. The values \u200b\u200bof the indicators can be removed by any graph: once a week, month, quarter. If the employee does not cope, it is reprimanded, a strict reprimand, and then dismissed.

Natalia Plastinina,: Paragraphs 3 and 5 h. 1 Art. 81 TK RF is two different bases. The basis of clause 3 -"The discrepancy between the employee of the position or performed work is due to insufficient qualifications confirmed by the results of the certification" - in practice it is difficult to achieve, due to the actual failure of this foundation. For its application, the employer will have to first approve the local act on holding certification (see part 2 of Art. 81 of the Labor Code of the Russian Federation), to give employees to prepare. Create a Commission. Properly fix the procedure for its holding and results. Provide iron arguments of the non-compliance of the employee. And after that ...

Suggest an employee another job in your company! This requires part 3 Article from the employer. 81 TK RF. That is, all the above actions may not lead to the final of labor relations if the employee agrees to transfer to another position. Was it worth the heater?

Paragraph 5 h. 1 Art. 81 TC RF proposes a universal basis for dismissal - "repeated non-fulfillment by an employee without valid causes of labor duties, if it has a disciplinary penalty." In the described "Forbes" magazine, the scheme of changes in job descriptions there are some flaws: and whether the employee will be able to further? If you, let's, let's make a responsibility to work in the official manual of the engineer for the operation of buildings in the evening, it seems that the court does not recognize such a change in legitimate and reasonable. And will indicate the Retament Employer to the right landmark in this issue - ETKS. In addition, we should not forget about the systematics of misconduct from the employee who may after the first punishment more and not formed.

And although both grounds can be applicable, but their hard toothail and high risk of challenging do not make them popular.

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

In this case, a strange design is described, no relation to the Russian law in general and to paragraph 3 and paragraph 5 of Article 81 of the TK RF in particular.

First, change job description - This is a change in the employment of the employee, which is possible only by agreement of the parties. In this case, the warning is not playing the role for two or more months.

Secondly, for the signing of some additional agreements to the employment contract, the will of the employee, without which the agreements cannot appear. And if the employee refuses to sign additional evidence? Has the right to.

Thirdly, to apply such a basis as a discrepancy of the position (paragraph 3 of Article 81 of the Labor Code of the Russian Federation), certification must be carried out, only the negative conclusion of the attestation commission can be a reason for the dismissal of the employee.

Non-compliance with the rules of the internal labor regulation (Art. 192 of the Labor Code of the Russian Federation). Information about the ban on smoking, the need to comply with the dress code should be spelled out in the rules of the internal labor regulation, under which all employees are signed while receiving work. It should be understood that the employer is not enough to specify "comply with the dress code". He is obliged in writing to convey to his employees, which clothes the authorities consider to be suitable for working with a detailed description of the style and color of clothing.

Natalia Plastinina,head of the legal support sector:

Of course, there is no such basis in the TC RF. However, there is a previously considered foundation provided for by paragraph 5 of Part 1 of Art. 81 TK RF - repeated non-fulfillment of responsibilities. Yes, indeed, the employee can be punished for smoking on the territory of the employer, and for non-compliance with the dress code under the following conditions:

• the employer has all the local acts that these claims recorded accurately and understandable;
• the employee is familiar with the specified acts under the painting.

In the case of violation by the employee of these requirements for the behavior of employees, the employer must in exact accordance with the requirements of Art. 193 TK RF employee punish. And only after the appearance of systemics (two or more violations during the year), he will already be able to dismiss the employee according to paragraph 5 of Part 1 of Art. 81 TK RF.
In my opinion, the most optimal option for parting with an employee for simplicity and validity among the proposed.

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

If in this case it is a termination of the employment contract based on paragraph 5 of Article 81 of the Labor Code of the Russian Federation (repeated non-fulfillment by the employee without good reasons for labor duties, if it has a disciplinary recovery), then non-compliance with the dress code or ban on smoking is not top risks For dismissal, since they are not related to labor duties. The dismissal of claim 5 of Article 81 of the Labor Code of the Russian Federation is carried out when there was a violation (non-compliance) of the provisions of the job description or employment contract.

Alcoholic intoxication (sub. "B" of paragraph 6 of Art. 81). There is quite a single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication at its workplace in the territory of an employer organization or an object, where, on behalf of the employer, the employee must carry out an employment function. But in order to take advantage of this method, the employer will have to provide the results of the medical examination of the employee.

Natalia Plastinina,head of Legal Sector:

Not always to apply this base, the data of medical examination (medical examination) is needed.The state of alcohol or drug or other toxic intoxication can be confirmed both by medical conclusion and other types of evidence that should be appreciated by the court (clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On Application by the courts Russian Federation Labor Code Of the Russian Federation "(hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases, a drunk worker flatly refuses to undergo a medical examination (including to further challenge his dismissal), the employer will have to collect other evidence. They can be (inclusive, but not limited to):

1. act on discovery in a state of alcohol intoxication;
2. an act of refusal to medical examination;
3. notice of the country of explanation;
4. an act of failure to provide explanations (compiled after two days, the data of the employee for this);
5. etc.

As practice shows, with the right and neat employer's approach to the preparation of documentation in such cases, the employee who appeared on the drunken work cannot successfully challenge his dismissal.

So, in the dispute about the recognition of the dismissal illegal, the employer confirmed the fact of finding the plaintiff in a state of alcohol intoxication at the workplace act on finding alcohol intoxication; act on refusal to pass medical examination; Protocol on the administrative offense, explanations of witnesses. The court considered it with sufficient proof of the fact of finding an employee in a state of alcohol intoxication, and, it means, and a sufficient basis for termination of the employment contract for PP. "B" n. 6 h. 1 Art. 81 TK RF. Without rearing any violations under the dismissal procedure, the court refused the employee in recognizing dismissal illegal (decision of the Railway District Court of Yekaterinburg dated March 21, 2012; Determination of the Sverdlovsk Regional Court of 21.06.2012 in case No. 33-7104 / 2012) .

But the most interesting question is in the other: will the employer wait for the emergence of an employee at work in a drunk?

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

To dismiss the employee for the appearance at work in a state of intoxication, the presence of the results of medical examination is desirable, but not necessarily. The employee has the right to refuse to proceed to medical institution. In this case, the employer has the right to confirm the fact of intoxication in which signs of intoxication are described.

Declections of professional secrecy (sub. "B" of paragraph 6 of Art. 81). The disclosure of secrecy protected by law (state, commercial, official and other), which became a famous employee in connection with the execution of labor duties, including the disclosure of personal data of another employee, is a serious violation of labor duties. In this case, the concept of personal data is very wide, and you can even theoretically dismiss for the message to anyone home phone Colleagues.

Natalia Plastinina,head of the legal support sector:

In accordance with the norms of Art. 139 of the Civil Code of the Russian Federation information is a service or commercial secret when the information has a valid or potential commercial value due to the unknown to its third parties, there is no free access to it on legal basis, and the owner of information takes measures to protect its confidentiality. Information that cannot be a service or commercial secrecy is determined by law and other legal acts. Persons who were illegal methods received information, which is a service or commercial secret, are obliged to compensate for damages. The same duty is assigned to workers who have disclosed official or commercial secrets contrary to the conditions of employment contract, and on counterparties that made it in violation of the conditions of the civil contract.

According to paragraph 43 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 in the event of challenging the dismissal officer on P.P. "B" p. 6 h. 1 tbsp. 81 TC RF Employer is obliged to submit evidence that the information that the worker has smoothed, in accordance with the current legislation relate to the state, official, commercial or other law protected by law, or to the personal data of another employee, this information became known to the employee in Communications with the execution of labor duties and it was obliged not to disclose such information. It is with these evidence from the employer, as a rule, problems arise. Before applying the base for dismissal, provided for P.P. "B" p. 6 h. 1 tbsp. 81 TK RF, should be clarified:

• are local acts in organizations, defining information as a secrecy protected by law;
• is the employee with the specified acts;
• it is obliged to not disclose certain information;
• is the information leakage really happened from this employee and how is this confirmed?

Remember: the usual worker may not know the provisions of regulations, the laws of the Russian Federation. It can be legally absolutely illiterate. And only if he is familiar with the employer with local actBased on the norms of laws, it will already be recognized as aware of the fact that certain information is a mystery. And it will be possible to punish him for disclosure only after signing them obligations on non-disclosure. But the presence of all these documents, as practice shows, does not minimize the risk of recognizing dismissal on the basis of the founding illegal.

So, the court considering the case with similar circumstances under consideration, considered that the employernot presented evidence of the violation by the employee of its official duties, in particular relating to non-disclosures of commercial secrets. The court indicated that the arguments of the employer were alleged in nature and cannot serve as the basis for the use of disciplinary recovery in the form of dismissal. Since evidence definitely testifies to the disclosure by the employee of information relating to the commercial secret of society in the case, the court recognized the dismissal of PP. "B" p. 6 h. 1 tbsp. 81 of the Labor Code of the Russian Federation illegal and changed the formulation of the foundation of the dismissal on paragraph 3 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (at wish) (decision of the Leninsky District Court of Perm dated April 6, 2012; the appeal definition of the Perm Regional Court of 03.10.2012 in case No. 33-8900).

Changes in the main working conditions (Art. 74 of the Labor Code of the Russian Federation). The employer has the right to change the work schedule or the wages, warning employees in two months. And there is a huge space of opportunities for the employer, and employees are forced to either agree with them or dismiss on their own. For example, an unwanted employee can offer piecework wages, translate production to a 24-hour schedule, and then many employees will prefer to abandon the night shift.

Natalia Plastinina,head of the legal support sector:

The provisions of this article are too rosy. Employers should not be so optimistic to submit their rights. First, Art. 74 of the Labor Code of the Russian Federation requires a tough substantiation of the reasons for changing the conditions of employment contract with an employee. According to Part 1 of Art. 74 of the Labor Code of the Russian Federation are allowed only "the reasons associated with a change in organizational or technological conditions of labor (changes in the technique and technology of production, structural reorganization of production, other reasons). Secondly, the employer will be ready to prove that the working contract defined by the parties could not be saved. Thirdly, under any circumstances the law does not allow the work of the employee's labor function.

The change in the conditions of the employment contract has a strict regulation of the process:

• written familiarization with the upcoming changes;
• written substantiation of the causes of the changes entered;
• position of vacancies during the entire warning period;
• the correct fixation of all the agreements and failures of the employee (from signing, from vacancies, etc.);
• dismissal not earlier than the expiration of the warning period;
• the payment of the day off of the two-week earnings (Article 178 of the Labor Code of the Russian Federation).

Not easy procedure, right? In addition, it is necessary to take into account that the employee can and ... agree to new working conditions. Or agree to take one of the proposed vacancies. Then it will be necessary to look for another base for parting?

If you consider the high risk of challenging dismissal under the foundation under consideration, it is worth thinking over the choice of this base for dismissal.
As an example of successful challenging, you can familiarize yourself with the decision of the Koryazhi City Court in case No. 2-12, in which the court did not recognize the existence of the employer the grounds for changing the conditions of the employment contract and, consequently, the emergence of grounds for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue working in connection with the change in the working contract defined by the parties). Before the dispute resolution, the defendant canceled his order and restored a worker at work).

Anna Ustyuhenko,partner, Head of the Practice of the Group of Legal Companies Intellect-C:

The use of Article.74 of the Labor Code of the Russian Federation is possible not in all cases. As a general rule, the change in the conditions of the employment contract (and the payment of labor, the work schedule is essential conditions) is made only by agreement of the Parties (Article 72 of the Labor Code of the Russian Federation). And only in case of changes in technological or organizational conditions of labor, the employer has the right to apply the provision of Article 74 of the Labor Code of the Russian Federation and unilaterally Change the terms of employment, warning the employee about it in two months. It should be borne in mind that in the case of a dispute, the obligation to prove the fact of changing the technological or organizational working conditions lies at the employer.

Failure to fulfill labor duties (paragraph 5 of Art. 81 of the Labor Code of the Russian Federation). Most often, the employer applies such wording when others legal ways Discussions are already exhausted or not suitable. In this case, the employee can give an impracticable task to the deadline, and then require an explanatory note on the causes of non-performance.

(see the comment above - "The discrepancy of the position (paragraph 3 and 5 of Art. 81 of the Labor Code of the Russian Federation")

Unsatisfactory results of certification (paragraph 3 of Art. 81 of the Labor Code of the Russian Federation).The company should have a provision for certification, and the attestation commission should include persons who have a professional understanding of the work of employees to be certified. All decisions, the Commission reflects in the Protocol. If the test results are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses to his new work proposed to him in the same company, relevant qualifications or below it and with a smaller earnings.

(See Comment Above - "The discrepancy of the position (paragraph 3 and 5 of Art. 81 of the Labor Code of the Russian Federation).

Natalia Plastinina,head of the legal support sector:

Conducting a general analysis of the foundations represented by the magazine, it can be concluded that each of them has its own minuses and entails the occurrence of certain risks. Even the correct observance of the dismissal procedure does not always entail the recognition of dismissal by legal and reasonable. Employers can be recommended to use the most simple foundations and regulated by the law of the dismissal procedure. For example, dismissal for repeated non-performance an employee without good reasons for labor duties, if it has a disciplinary penalty (paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation) or dismissal for the emergence of an employee at work (at its workplace or on the territory of the organization - an employer or an object, where on the instructions of the employer The employee must perform the work function) in a state of alcoholic, narcotic or other toxic intoxication (PP. "B" p. 6 h. 1 Art. 81 of the Labor Code of the Russian Federation).

Polish an unsuitable employee easily. It is much more difficult to find a legitimate justification for this. What legal capabilities provide the Labor Code to employers, facing the task of getting rid of the ballast in the form of ineffective employees?

Natalia Petrykina, corporate and labor specialist

First of all, you need to figure out what an ineffective employee is and which means this definition, being translated into the Labor Code.

The concepts of "effectiveness" and "non-effect-tivity" of personnel are used by HR managers as a comprehensive characteristic, which develops from the evaluation of the degree of competence, productivity, initiative and loyalty of cooperation. In the legal language, the terms "qualifications" and "discipline" correspond to these concepts. It follows from this that if the quality of work or employee behavior does not correspond to these two criteria, it can be dismissed. Let's talk in more detail about each of the possible reasons for the dismissal of an employee working in non-efficient.

Dismissal when not passing the trial period

The trial period is a measure aimed at identifying professional Qualities The newly admissible employee of his position. The trial period, as a rule, lasts up to three months, and during it the employment contract with the subject can be terminated at any time. Please note that the test condition should be included in the employment contract (as well as, preferably, in order and application for work acceptance). Otherwise, the employee is considered to be accepted for work without a trial period and dismiss it on the basis of not passing the test, of course, it is impossible.

In the unsatisfactory result of the test, the employer has the right to terminate the employment contract to early, warning it in writing no later than three days before the divorce date, indicating the reasons that served as the basis for recognizing the employee who could not withstand the test.

Termination of the employment contract by agreement of the parties

This is a very convenient and conflictful way to dissolve labor relations provided for by the Labor Code. Its essence lies in the fact that the parties are catching up to stop the employment contract to a certain selected period of themselves. This method is convenient to use when both parties are tuned to the gap of labor relations, and the date is chosen taking into account their mutual interest (for example, when the displacement of the dismissed employee will be selected or when he finds a new job place).

Termination of an urgent employment contract

If with an employee who turned out to be ineffective, it is an urgent employment contract, it can be terminated easily and simply upon the expiration of the contract. From the employer, the television is not required in this case, no substantiations of their decision. The only condition is an employee must be notified of this in writing no later than three days before dismissal.

Dismissal to reduce the number or staff of employees

For the employer, it is tempting to use this norm to dismiss under this sign at once all unsuitable workers, but it is most likely to do it. First of all, the procedure for implementing this norm of the Labor Code is quite complicated. It is necessary to write in writing of the dismissed workers at least in two months. It is necessary to pre-try to try to employ them on other available vacant positions in organ-niz. When dismissal, the employer is obliged to pay the day off and average monthly salary For two hours. Despite the fact that the preferential right to preserve positions have employees with the highest qualifications and performance, with equal terms, preference should be given to families and some other categories of person-la. Given all the above, it is obvious that the reduction in the number or state is not the best way Get rid of ineffective workers.

Dismissal of an employee for health states or due to insufficient qualifications

Dismissal on this basis is possible only if the unsatisfactory state of health is confirmed by a medical certificate, and insufficient qualifications - the results of certification. Pay attention to dismiss the employee on the grounds that he often takes the hospital, it is impossible. For dismissal, a medical conclusion is required about the employee's persistentness to perform a specific type of work. The inconsistency of the same position due to insufficient qualifications can be confirmed only by the results of certification. Meanwhile, the Labor Code does not contain general rules Her holding. However, the individual categories of workers approved sectoral rules of certification, and you can guide-Smi. Three fundamental points are important here. First, the certification should be carried out regularly, and not only when there was a need for anyone to uvo-pour. Secondly, the findings of the attestation commission may be insolvent if there is insufficient qualifications due to a short work experience, as well as on the motive of the lack of special education. Thirdly, before dismissed the employee on this basis, the employer is obliged to offer him another, more suitable experience and qua-definks work in the organization.

Dismissing an employee with repeated non-fulfillment of labor duties if he has a disciplocation

This is a good reason for the dismissal of the employee, negligently relating to its duties, if the patience of the handwood is dried. For dismissal on this basis, it is necessary that during the year the measures of disciplinary responsibility can already be used to employee. Please note that the fact of the availability of disciplinary penalties must be documented, for which it is necessary to comply with the procedure for overlaying disciplinary penalties. Briefly remind what it consists of. Warm, the fact of disrupting the discipline must be confirmed by a written explanation of the employee. Secondly, the order on the imposition of disciplinary recovery should be declared on receipt no later than three days from the moment of its signing and applied no later than the month from the date of misconduct.

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

The following actions may be considered a rough violation of employment duties:

Absenteeism

Appearance at work in a state of alcoholic or other intoxication

Disclosure by protected by law or commercial mystery

Making at the place of work of the embezzlement, waste or mind-sliced \u200b\u200bdestroying of property

Violation of safety regulations with the onset of serious consequences

All these disorders are quite extraordinary characteristic, if we take into account the fact that most often the staff, especially highly qualified, calls not only about the company's reputation, but also about their own. But if the violation still took place and the workbook intends to dismiss the perpetrator, it is necessary to perform the next procedure. Firstly, the fact of violation of labor discipline must be written in writing. Secondly, the guilty worker needs to be removed from work and, thirdly, to receive written explanation from him. Only after that you can make an order for dismissal.

Performance of the perpetrators by the employee, servicing commodity or cash values

This is another reason to dismiss the employee who has manifested itself not from the best side. This norm concerns only workers directly servicing commodity or monetary values. The cause of dismissal is the guilty actions of the employee, giving grounds for the loss of confidence in him. Such actions may be, for example, receiving payment for services without registration of relevant documents. In addition, if the worker made mercenary offenses outside the place of work, the employer still has the right to uvo-pour due to the loss of confidence in him.

Termination of admission to the state secret

For this reason, an employee who does not have admission to the state secret may be dismissed when his work involves the use of information relating to it. Please note if the employee in court proves that actually his work was not related to confidential information, the court will decide on its rebeling.

Single gross violation by the head of the arrangement of his labor duties

This basis for dismissal can be applied to managers not only organizations, but also branches and other separate divisions, as well as to their depths. Labor duties of the head are as a rule, in their employment contracts and statutory document documents. The rudeness of violation implies, in the per-stage, guilt and significant damage caused.

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

The special position of the head of the Organization of the Organization-Gaet and the Special Responsibility Measures that are fixed in the employment contract. Since the prosperity of the company, the company's prosperity directly depends on the actions, then the basis for the dismissal of the manager may be its "non-efficiency", which in the labor contract is reflected in the form of specific tasks that were not achieved in practice.

These are all possible optionsThe existing employer. However, oddly enough, most often from an inefficient employee get rid of his own statement "at their own request." This is justified in cases where the employer, having the opportunity to uvo-pour the employee for the perpetrator, gives him a chance to leave, without spoiling the labor book of unpleasant formulas. In the rest of the same cases, the head must be a thread that an employee, under pressure fired "at his own request," may apply to court. If the case is won by him, then the employer will have to not only restore the employee in office, but also to pay him a considerable amount of compensation.

Firing an employee, the head can not be sure that the story ended - a person dismissed under the article may apply to the court or simply damage the company, draining the client base or valuable information. How to soften the procedure for dismissing employees.

Dismissal on the initiative of the leadership always turns into stress, vulnerable proud and painful experiences for the employee. It would seem that the director, having got rid of the employee who for some reason did not come to the yard, should sigh with relief.

In fact, as usual, the medal has two sides - an offended and annoyed former employee may apply a tangible damage to the organization. Possible troubles are diverse - from unilent stories about the true face of the head in particular and organizations in the general in business circles to tedious proceedings in court. The offended employee can revenge the company, draining the client base to competitors or informing tax authorities Valuable and secret information.

But that's not all. If the dismissal was produced rudely, the rest of the staff will be shocked, and many will begin to think seriously about their own prospects in the company and, perhaps, will make a safer place of work. The loyalty of employees and a healthy atmosphere in the team is an important component of the company's success.

The listed is quite enough to become apparent - when dismissing employees, you need to try to make this unpleasant process as non-variable for all sides. Let's try to understand how it is possible to make a dismissal process as painless and not to turn dismissed employees into enemies. Workers can be parted using several dismissal mechanisms. We will look at the most common.

At your own accord

The method is the easiest and most profitable for the parties. Do not show excessive cruelty, and offer an incomplete employee to write a statement "on our own" (paragraph 3 of Article 77 of the TC). Talk to a kind worker, and explain to him that you better part, because he has no prospects in your company, and its usefulness for a common cause is minimal. If you manage to understand each other, write good recommendations to the dismissal. If possible, write it a comforting premium for the desire for peace.

In this case, good attitude to the employee is very important, it is not necessary to provoke conflicts to avoid many unpleasant moments. If you have already decided that this person will not work in your company, it makes no sense to vomit it and squeeze the enemy (see "").

The situation is complicated if the employee flatly refuses to dismiss on his own request. Do not leave attempts to convince him of the inexpediency of further cooperation, but do it very tactfully and without the use of prohibited techniques. Do not think to insult subordinate and join open confrontation with him. Note that the rest of the staff follow the situation and project her. If you spend, you can provoke a revolutionary situation in the team.

Best patience and collect compromising on the subordinate: customer complaints, reporting notes of employees, disorders of labor discipline, miscalculations in work ... Make out the comments in writing, make orders for spontaneous, call the carpet for each occasion. When you have enough trumps in your hands, you can explain it item that it will not find stubborn files good work. With such system approach He must surrender.

Create an employee intolerant conditions - transfer most of its powers to another employee, do not increase it with a salary, deprive premium. We are not at all confident that all these Jesuit techniques will lead to the desired junction - there may be countermeasures, complained about the tax, court and a higher leader. Then your position can be extremely uncomfortable.

According to the results of certification

Almost always, employees are dismissed due to their professional inconsistency of the position. The complexity of such dismissal is to have the need for certification, which can be carried out only in organizations where a special position has been developed. With the text of this document, all employees must be familiar with the text.

There is no instructions in TC on how certification should occur and how to summarize its results. Until now, the situation has not lost its strength approved in 1973. According to this document, the head has the right to approve a schedule of certification at the enterprise or to publish an order to hold certification. Employees should be included in what is familiar with this order.

The qualification assessment is carried out by a special commission, consisting of sufficiently qualified specialists who can authoritatively assess the level of certified. The results are drawn up in the form of an order. If the employee did not pass attestation, he needed to provide a chance to pass it again to avoid disputes in the future. After the second failure, offer him a less prestigious place of work in your company. Find a place to which the employee will definitely agree. Place the refusal in writing and you can prepare an order for dismissal.

Although one order of dismissal in this case may not be enough. If before the certification, the employee coped well with the duties and had no penalties, he could challenge the dismissal in judicial order. The court almost always takes the side of the plaintiff. Committing certification specifically to get rid of a particular person, observe the formalities. The lack of such a way of dismissal is high cost and complexity of organizing this event.

For systematic violation of labor discipline

In the employment contract, the start and end and end time time is always clear, and any violation of the terms of the contract leads to recovery. Be sure to mark all the late in the table (see ""), early care from work, protracted lunch breaks, etc.

If the violations have become systematic, create a commission and write an act. Create written explanations from the employee. In case of refusal, draw up an act signed by members of the Commission, consisting of three disinterested witnesses, direct supervisor and a representative of the personnel department. If we write out the comments in writing with every delay to work or such a violation, in court you will have evidence that will be able to convince the judge in the justice of dismissal.

For a single violation

The Labor Code interprets the following actions as a gross disorder of discipline:

• appearance at work in a state of intoxication, alcoholic or drug;
• lack in place a significant part of working time without warning;
• disclosure of commercial secrecy;
• safety breach, which can cause serious consequences;
• destruction, embezzlement or estate of property.

Drive for more than four hours and the appearance in a drunk becomes the cause of dismissal more often than the rest. Before you proceed to the dismissal procedure, make sure that the workforce contains an item on the location of the workplace, and the job description is signed by the employee.

To prove the fact of the appearance at work in a state of intoxication, a medical examination and written testimony of witnesses is necessary. You must endure the violator of a reprimand with a job. Only after collecting necessary documents You can hope that the drinker will be dismissed, and the decision will not be able to be challenged in court.

If there was a walk, that is, the absence at work for 4 hours without warning, an employee can be fired even with a single appearance. The cause of the absenteeism can be considered respectful if a fire or accident occurred, a close relative, and so on for the employee, could be dismissed for one month from the moment of the incident.

Dismissal by a peaceful way

Of course, you can show principled, and dismiss an undesirable employee under the article, but think about the consequences of this action. You risk becoming a person involved in numerous court proceedings With an undefined finale.

If the court recognizes your actions unlawful, you will pay compensation for forced rushing and you will have to take the disadvantaged worker. It seems to us, it is better to try to find peaceful ways to resolve the conflict (see ""). Offer an employee to write a statement on your own request, explaining that you have enough information that can be used when dismissal.

As a result of the trial, the employee does not lose anything, and you will incur cost when paying lawyers and lawyers, even if you finally benefit the case. Offer an employee's day off and disperse the world - it will be better for everyone.

Dismissal - Routine work for experienced personnel. Some employees go on their own, others - by the "request" of the employer. In any case, for each basis there is its own procedure. It is aimed at strictly compliance, on the one hand, to protect the rights of hired personnel, on the other - on the protection of organizations from unreasonable claims of former employees. Consider how to dismiss the employee in compliance with all the necessary formalities.

Options for dismissal

Labor legislation provides 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

Employee's own desire is the most common foundation for termination of the relationship with the employer:

1. The employee writes a statement about the departure with the date.
2. The employer must satisfy this statement.

Difficulties with the execution of dismissal on the initiative of the employee, as a rule, does not happen. Exception - issues related to mandatory "work". Standard is 2 weeks that the employee continues to work since the application.

Separate categories of personnel have the right to a shorter period allotted for dismissal prevention. It should always be borne in mind because the "unexpected" care of such an employee is not an excuse for an organization who did not have time to calculate the dismissal and to give him an employment record in time.

The employer's initiative suggests a more complex process of dismissal. If this state reduction or liquidation of the company - the procedure is clearly described in legislation and in terms of documentary support does not represent problems. Here, the main task is the advance notification of all interested parties in the manner and within the deadlines established by the TC RF.

When it comes to the dismissal of an employee unilaterally by the organization, here "freedom" of the employer is clearly limited: one desire is not enough for this. There is a list of grounds, for which you can dismiss the employee, and the special procedure for fixing disorders for each of them. There are no documented employee misconduct - there is no reason for dismissal.

The "compromise" option to terminate labor relations is the agreement of the parties. In this case, the employer and employee lovely agree on parting under certain conditions. Most often it looks like this: the organization is interested in dismissing the employee without the risk, which he will change their mind and responds to the statement "on his own". Worker "traded" to get for his care monetary compensation.

Dismissal

The hired employee has the right to break labor relations at any time. For this, he needs:

• fill out an application for dismissal at your own request 2 weeks before care;
• work out laid days;
• complete the transfer of affairs to another employee, if such an order is provided for in the organization.

It does not matter which contract was concluded when admitting work - urgent or permanent. In any case, the desire of the employee is determining, and the employer does not have legitimate reasons to interfere.

The statement is written in the name of the head with the wording: "I ask me to dismiss me at your own desire" XX "month in words XXXX year," current date and signature.

If the employee goes without working, he needs to make a change in the cause of dismissal:

• retirement;
• crediting for study;
• moving to another locality;
• translation of the spouse to another service place / abroad;
• violation of the legislation, the conditions of employment contract by the employer.

In such cases, dismissal occurs at the date specified by the applicant. If required, a confirmation document must be attached to the application (certificate from the institute, ordering order, etc.). To go "one day" an employee can and without a good reason if the employer go to the meeting and will allow not to work out.

Without compliance with a two-week term, you can dismiss the employee on vacation if he filed an application before it started or already during rest, but no later than 14 days before going to work. Then the first postbaking day will be considered the date of termination of the employment contract.

Employees on the probationary period, executed on an urgent labor contract for up to 2 months and seasonal workers work out not standard 14, and only 3 days.

From the employer, the procedure for dismissal of dismissal looks like this:

• admission of a statement enforced by the head of the company;
• creating an order;
• making an entry into the labor book;
• full settlement with a wage employee;
• preparation of documents necessary for further employment (Queen 2-NDFL, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the cause of care, the same basis will be marked in personnel documents, as an article will dismiss the employee, - Art. 77 TK RF. On the day of dismissal, the employee meets the order and receives an employment record. Up to this point, a person can change and pick up a statement if the replacement was not yet invited to its place that "impossible to turn back".

Dismissal through the agreement

The Agreement of the Parties implies a quick and simple dismissal procedure:

1. If the initiative comes from the employee, he applies to the head of the departure.
2. If the employer "asks" an employee to leave the company, he sends him a written proposal.
3. The parties are discussing the terms of termination of the employment contract.
4. The organization and dismissed sign a bilateral agreement.
5. The personnel department draws up the order, fills the labor book. The basis of the dismissal - paragraph 1 of Article 77 of the Labor Code of the Russian Federation.

Agreement is an optimal option for both parties in terms of opportunities and compliance with legal rights. The employer may, having agreed with the employee, dismiss it on any day, even if it is on vacation or sick. "To change the mind" and cancel the signed document unilaterally dismissed. An employee is also not offended - in the process of negotiations, he has the right to defend his material interests and demand compensation.

Dismissal on the initiative of the organization

The initiative to stop labor relations may proceed from the employer for purely economic reasons - need to reduce the number of employees or fully close the organization. In the second case, the "consumption" goes all the staff, in the first - reduced divisions, positions, except for those categories of workers who cannot be reduced by law.

If you need to get rid of a particular person, as they say, "under the article", the employer is obliged to prove that the employee does not correspond to his position or he had a misdemeanor in labor discipline. Most often, dismissal for driving, the appearance at work in a drunken form, systematic disorders with a disciplinary punishment.

In order to avoid infringement of the rights of staff, the legislators did everything so that a person could not be dismissed without good reason. "To bring under the article" The employee to whom the supervision of personal hostility is quite difficult, although it is impossible to completely eliminate abuse from employers.

Staff reduction and liquidation of the company

The reduction has a clearly regulated process of dismissal of the personnel:

1. The decision taken at the enterprise is fixed by the order. For personnel service, this is the basis to start a notification procedure. Information that is important in this case for employees - the date of reduction and changes in a staffing schedule.
2. 2 months before the date of abbreviation, all employees are notified in writing under the signature.
3. The employer is obliged to offer an employee to another position if such an opportunity is available. For people, consonant with the proposed vacancies, the translation is issued. The rest are preparing for dismissal.
4. The notified employee is entitled to leave early, without waiting for the date of the reduction. If a person who learned about the upcoming dismissal, found new job, the employer must let him go freely. Compensation for the early days left before cutting days does not deprive the employee.
5. 2 months before reduction, management should notify the trade union body if it is. With a mass release of employees - for 3 months, as well as submit lists in the employment service.
6. Each employee is preparing an order for dismissal (T-8 form) with reference to the basis of the basis. The order is transferred to the signature to be fired.
7. An entry into the labor book indicating the reason for the dismissal - paragraph 2 of Part 1 of Art. 81 TC.
8. Full calculation includes: wages, monetary compensation for the accumulated leave days, the output allowance in the amount of average s / n.

Dismissal to reduce the state does not concern some categories of workers:

• pregnant women and "Decaders";
• single mothers with children up to 14 years old, with a disabled child under 18;
• members of the trade union and workers speaking in negotiations with the employer on behalf of the team.

When it reduces one of several equivalent posts, the choice of workers who will go and which will remain, falls on the employer. However, here the bosses are devoid of complete freedom. All other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine who from the employees "best" is difficult, legislation gives some of them a priority right to maintain the workplace. It:

• persons with 2 and more dependents;
• single breadwinners in the family;
• received this employer injury or professor;
• disabled - participants in hostilities;
• improving qualifications without separation from production;
• other categories provided for in the collective agreement.

These employees go under the reduction in the last place. It is impossible to dismiss the employee if it is on sick leave or on vacation. To reduce temporarily disabled and vacationers, you will have to wait until they go to work.

All these exceptions do not act with the complete elimination of the organization. The liquidation procedure is practically no difference from the reduction, except for one thing: jobs are deprived of all personnel of the organization, regardless of position, qualifications and social status. Workers who in ordinary situations have "immunity" from dismissal (pregnant, lonely mother and other), no benefits for liquidation. An employer does not offer anyone a translation to another position, because completely ceases to operate.

Dismissal of violators of labor discipline and unprofitable workers

An employee who systematically violates discipline, causes the leadership a completely explained desire to get rid of it. Labor legislation allows you to dismiss the employee immediately only for the rude disciplinary "crime":

• absenteeism;
• presence at work in a state of intoxication (alcoholic, narcotic), confirmed by medical examination;
• disclosure of protected information (state, commercial mystery), proven in court;
• theft, waste, material damage to the employer or a third party recognized by the court;
• violations of labor protection rules with grave consequences;
• loss of confidence for working with money and commodity values;
• amoral behavior for pedrattleships;
• the presentation of concrete documents upon admission to the position.

Dismissal with a one-time gross violation is a disciplinary penalty. The order of its design includes:

1. Detection of the fact of violation.
2. Fixation is offense (drawing up an act, protocol, examination, medical examination, etc.).
3. Getting from the defendant an employee of explanations in writing.
4. Consideration of the circumstances of the case.
5. Compilation of the order of dismissal in the form of T-8, references to confirm documents are indicated as a basis (acts, reports, explanatory, court decisions etc.).
6. By bringing the order to an employee under the signature.
7. Making an entry into the employment record with an indication of the corresponding article TK RF.

For example, how to dismiss the employee for the program: in the absence of a person at work throughout the day or 4 hours in a row, it is necessary to document this fact and prove that the employee was not on the spot without a good reason.

Before receiving an explanation from "Walking" operates the "presumption of innocence". The employee could be in the ran, vacation, on a hospital, be caused to court, get into an accident on the way to work, etc.

If the employee did not receive any sensible explanations nor the acquittal documents (a sheet of disability, the agenda to the court, the traffic police protocol, etc.), the misconduct is regarded as a gross violation of labor discipline and qualifies under Art. 81 TK RF, part 1, paragraph 6, subparagraph "A". This basis and will be recorded in the order of dismissal and in the employment record.

List of documents confirming the legality of such dismissal:

1. Act of a non-appearance to work.
2. Explanatory employee or act of refusal to provide explanations.
3. Order on disciplinary recovery / dismissal.

If the employer violated this procedure, even if he has good grounds On the dismissal of the trash, the "offended" worker has every chance to recover through the court.

It is also possible to dismiss a person for minor violations, but for this he must have several officially issued recovery (warning, reprimand, strict reprimand). Orders confirming "chronic" undisciplinedness, together can serve as a basis for rupture labor relations.

Another "delicious" question for employers is how to focus on the employee who, according to the bosses, does not correspond to the position. Except how to arrange a non-competent employee attestation, there is no other option. It is necessary to publish an order, create a certification commission and evaluate a person's professionality on the basis of well-established criteria. Unsatisfactory results of certification - reason to translate an employee to another position. Most likely, he refuses, then you can make dismissal with the wording "in connection with the inconsistency of the position." The term in which the employment contract needs to be terminated is no later than two months after the certification.

In the event of disputes associated with unlawful dismissal, the courts more often fall on the side of the workers. The reason is simple: a rare organization can boast of ideal order in the internal regulations and personnel documents. The lack of graphs, job descriptions, certification and labor regulations, an illiterately compiled employment contract, "missed" steps when initiating dismissal - all this may serve as evidence that dismissal is made with violation of the law.

Aida Ibrahimova, Head of the Personnel Department of the CCC Group

These three points must be taken into account before dismissing the unfair employee under the article. Learn about the example of a specific case from practice.

Almost all organizations have workers who do not cope with their duties: often late, do not comply with the timing of the tasks, violate established rules. Managers do not know how to deal with such employees. When the Oral Comments of the Chief do not act, it is necessary to apply disciplinary recovery: a remark, reprimand, extreme measure - dismissal.

In art. The 81 Labor Code of the Russian Federation shows the reasons for which the contract on the initiative of the employer may be terminated. We are talking about the dismissal of an employee for a repeated violation of its employment duties (paragraph 5 of Art. 81 of the Labor Code of the Russian Federation).

Next, we will consider, in what cases the employee can be dismissed for a systematic violation of employment duties, what conditions are important to consider and how to competently arrange the imposition of disciplinary recovery so that the court declares the dismissal and did not give the opportunity to restore the employee in office.

Misdememputes for which you can dismiss on the article

Dismissal under the article is possible if the employee performs actions that are prohibited by the employment contract, the official instruction, local regulatory act, by order of the employer, labor legislation standards and other regulatory legal acts containing the provisions of labor law, or, on the contrary, if an employee does not make it provided for by these documents.

Paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 "On the application of the courts of the Russian Federation of the Labor Code of the Russian Federation" to such violations belongs:

Lack of an employee without valid reasons at work or workplace;
- the worker's refusal without good reasons for the fulfillment of labor duties in connection with the change in the prescribed manner labor standards, since due to the employment contract, the employee is obliged to fulfill the employment function to fulfill the labor contract, comply with the rules of the internal employment regulation;
- refusal or evasion without good reasons from medical examination of employees of certain professions, as well as a refusal of an employee from passing in working hours of special training and passing examinations for labor protection, safety and rules, if it is mandatory condition Admission to work.

This list is given in the Decree of the Plenum of the Armed Forces of the Russian Federation and, of course, is not exhaustive. Such violations include any non-fulfillment or improper performance by the employee without valid reasons for its employment duties. When dismissing for repeated non-fulfillment of labor duties, the employer must have a clear position and irrefutable evidence of the guilt of the employee. The obligation to submit evidence of legality and validity of the application to the employee of disciplinary recovery, as well as evidence of compliance with the procedure for its application is assigned to the employer (the appellate definition of the Smolensk Regional Court of 24.02.2015 in case No. 33-631 / 2015).

Conditions required for dismissal

Prior to the use of disciplinary recovery in the form of dismissal under paragraph 5 of Art. 81 TK RF must be checked whether the following conditions are followed:

1. Employee requirements must be fixed in the documents, and the employee must be acquainted with them.

Apply to the employee disciplinary penalties are possible only if the employee is entrusted with the documents that establish the requirements and prohibitions. As part of the activities of the CCC Group, we provide consulting services, and often complaints come from customers that their employees do not fulfill official duties. We always draw clients' attention to the fact that it is necessary to bring all personnel documentation in line with the norms of labor legislation. In case there is no document that establishes the rule, it is not possible to prove the violation of these rules.

2. Availability of outstanding disciplinary recovery from an employee

Disciplinary penalties or remark should not be removed early and its validity period should not expire (year from the date of publication of the order to apply the collection). Disciplinary recovery can be issued as a remark or as a reprimand. To dismiss enough one outstanding disciplinary recovery, for the second one can already be dismissed. If an employee has several disciplinary penalties, it will strengthen the position of the employer, as it suggests that the employee was given a chance for correction. In this case, the dismissal is an extreme measure, because previous disciplinary recovery on the employee did not affect.

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

In accordance with paragraph 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 "On application by the courts of the Russian Federation of the Labor Code of the Russian Federation" in the event of a dispute, the employer will need to submit evidence indicating that:

- the employee committed disciplinary misconduct;

- When imposing a penalty, the severity of this misconduct and the circumstances under which he was committed (part 5, Article 192 of the Labor Code of the Russian Federation), as well as the preceding behavior of the employee, his attitude towards work was taken into account.

This means that the offense should be commensurate with punishment. It is impossible to use disciplinary recovery in the form of dismissal for the late employee for 15 minutes, if there was no complaints about the work of the employee. It is also forbidden to apply several disciplinary penalties for the same deed. For example, it is impossible for one late to declare a reprimand worker and dismiss for the same. The behavior of the employer will be illegal if he "sails" the refinement of the employee and announces a reprimand on one day and dismisses the employee.

4. Terms of application of disciplinary recovery

Disciplinary penalties can be applied within one month from the date of discovery of the offense and six months from the date of its commission (according to the results of the verification of financial and economic activities or an audit - no later than two years from the date of the disciplinary misconduct). The misdeeding day is considered a day when it became aware of the misdeed.

We note that within a month, the time of the employee's illness, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of workers (part 3 of Article 193 of the Labor Code of the Russian Federation) is not counted.

The procedure for imposing disciplinary recovery

Dismissal for repeated non-fulfillment of labor duties implies a clear observance of the procedure. Consider what documents need to be issued:

1. Stop note of the non-fulfillment of labor duties

Worker's misconduct must be recorded by direct supervisor in a memorandum general Director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the use of disciplinary recovery.

2. Act about the disciplinary misconduct

The execution of a disciplinary miscondancy must be fixed by the act. The act is drawn up with three employees, including a direct head and personnel specialist. With the act, the employee must be familiar with the painting.

3. Notification of the provision of written explanations

Before applying a disciplinary penalty, an employee needs to request explanations. In order to confirm that the explanations have been requested, such a notice needs to be written in writing and handing the employee to the painting. In case of refusal to receive a notice, it must be read by the worker out loud and draw up an act of refusing to receive notice.

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

4. Accounting for the opinion of the representative body

The dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 TK RF is made taking into account the motivated opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

When terminating an employment contract with an employee according to paragraph 5 of Art. 81 TK RF should be guided common rules dismissal. The following documents must be issued: an order to terminate the employment contract, a note-calculation, a labor book, a personal employee card.

Example from practice

We applied a client for holding a personnel audit. As part of the provision of audit services, we will also advise customers for all issues of application of labor legislation. One of the company's employees was a single mother and "actively" used by this. When checking the personal case of the employees, we found a large number of reports on the non-fulfillment of labor duties. Earlier, the client tried to cut a worker, but in response, she filed a complaint to the labor inspectorate and appealed to the court (although the employment contract was not terminated). The position of the employer was losing, as it is impossible to reduce a single mother according to the law, and the procedure itself was incorrect.

We advised the client to issue an order to suspend the procedure for reducing employees, as well as notify that her position will be saved. Despite this, the question of dismissal remained relevant to the client, the employee increasingly began to violate the work discipline, and in response to the employer's comments, he used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace Previously, the deadline, unauthorized without warning, went on vacation.

Conducting personnel audit showed that the client's company has a personnel record with serious violations and many mandatory documents Absent, as a result, it was impossible to prevent employee claims.

We have compiled a plan for the client to restore personnel documents and instructions for conducting a problematic employee:

Make a detailed job description manager for sales, in which all responsibilities must be described and is indicated to whom the manager is subject to;
- to establish in the job instruction that the sales manager is obliged to fulfill the instructions of the direct supervisor and the Director General;
- Install monthly sales plans to be performed by all sales managers.

Only when approving and familiarizing employees with all these personnel documents is possible to use disciplinary penalties. For example, for non-fulfillment of a plan for sales, managers' orders, a violation of the discipline of labor - the declaration of comments or spontaneousness, and with a re-violation - the dismissal of the employee.

As a result, two disciplinary recovery was drawn up on the employee when it made the third offense - followed the dismissal procedure according to paragraph 5 of Art. 81 TK RF. The employee asked to enable the opportunity to quit his own desire, as she did not want such a record in the employment record. The employer went to meet her, and the employment contract was terminated.