It's no secret that the relationship between the employer and the employee is regulated by the Labor Code of the Russian Federation. The Code itself begins with the definition of its creation. It is already becoming clear from his name that the Labor Code is needed to regulate the labor relations of the parties, to solve controversial situations, as well as to protect the interests of both parties. The employer, taking the work of employees, is studying the main provisions of the Code and knows its rights and obligations. IN large companies Employee personnel and lawyers help the employer in this matter. But many hired workers prefer to rely on the knowledge of their tenant, as a result of which many are dismissed with violation of the law.
Working in one of the companies during the crisis, I witnessed such a situation. The office manager did not find a common language with the executive director who had newly arrived in the company. After frequent comments in her address, the girl, we will call her Olga, decided to quit on your own, but cEO, wanting to take care of the subordinate, persuaded Olga to stay. Two months later, the company began a financial crisis. In such situations, the first measure to save the company, as a rule, consider the cost reduction, oddly enough, to reduce them begin by employees salary. At the same time, the overall decrease in salaries leads to mass disturbances, it is easier to resolve the reduction of this article by reducing the "not needed" employees. Or decreases the number of posts in one area of \u200b\u200bactivity, or simply remove several "additional" rates, work on which can be painlessly spread between the remaining employees. In our case, the position of the office manager came under the reduction. And Olga forced about dismissal at their own request, threatening to dismiss on "33 article". NOT SOLONO FOLLOADING, THE GIRL IN FULL WITHOUT WITHOUT WITHOUT WITH WILL FOOD TO COME FOR ANSWERS TO KNOWN TO PEO.
Approximately about such dismissals I want to tell the MirSovetov reader.

Termination of the employment contract on the initiative of the employer

What is "fired by" 33 article "?! In defense of the interests of the employer from unscrupulous employees in the Labor Code, cases in which the employer may unilaterally Distribute the employment contract. These cases in the Old Labor Code were listed in the article for the number 33. The Code has changed, and the expression remains, and they often frighten the employees.
To date, these cases are described in Article 81. "Termination of an employment contract on the initiative of the employer." Here is its main provisions:

An employment contract may be terminated by the employer in cases:
1) the liquidation of the organization or;
2) reduce the number or staff of employees of the organization, individual entrepreneur;
3) inconsistencies of the employee of the office or performed work due to insufficient qualifications confirmed by the results of certification;
4) shifts of the owner of the property of the organization (with respect to the head of the organization, his deputies and chief accountant);
5) a repeated non-fulfillment by the employee without valid causes of labor duties, if it has a disciplinary penalty;
6) a single gross violation by an employee of labor duties:
a) absenteeism, that is, the lack of in the workplace without good reason during the entire working day (shift), regardless of its (its) duration, as well as in the absence of in a workplace without valid causes for more than four hours in a row during the working day ( shifts);
b) the emergence of an employee at work (at its workplace or on the territory of the organization - an employer or an object, where, on behalf of the employer, the employee must carry out an employment function) in a state of alcohol, narcotic or other toxic intoxication;
c) disclosure of the secrets protected by law (state, commercial, official and other), which has become a well-known employee in connection with the execution of labor duties, including disclosure of personal data of another employee;
d) committing at the place of work of theft (including small) alien property, waste, deliberate destruction or damage established by entering into legal force judgment of the court or the decision of the judge, the authority, officerauthorized to consider cases of administrative offenses;
e) established by the Commission for Labor Protection Or Commissioner Violations by the employee of labor protection requirements, if this violation led to serious consequences (accident at work, accident, disaster) or knowingly created a real threat to the onset of such consequences;
7) the perpetrators of the employee who directly serving monetary or commodity valuesif these actions give grounds for loss of confidence in Him by the employer;
8) the executive officer performing educational functions, immoral offense, incompatible with the continuation of this work;
9) adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and chief accountant, which caused a violation of the safety of property, unlawful use of it or other damage to the property of the organization;
10) a single gross violation by the head of the Organization (branch, representative office), his deputies of its employment duties;
11) submissions by the employee to the employer of substrate documents at the conclusion of an employment contract.

Dismissing you by own initiativeThe employer must make the appropriate entry in the employment record of the disadvantaged employee. The record must have a reference to the article and its specific part, to justify its actions. In addition, an order should be drawn up with an indication of the same article and a specific reason for which they were guided by dismissal. Fired employee B. obligatory Must be familiar with this order, which is confirmed by the personal signature of the dismissed. In addition, you have the right to take a copy of the order. In how to justify the initiative of the employer unilaterally arises a certain difficulty if a person is dismissed without the existing reasons. Let's figure it out.
Clause number 3 is the main threat in the employer's lips: you will not write "in good one," to collect the commission to prove your no competence. In order to collect a certification commission and expose the employee's exam, it is required:

Create control issues, in accordance with the Labor Code of the Russian Federation and regulatory legal acts, which are taken into account by the opinion of the representative of employees.
Questions for certification can be in determining knowledge and skills according to its job description and general corporate rules.
The certificate employee must necessarily be familiar with the content of control issues in advance (at least 1 day).
The rules of certification Each private organization should be developed independently, but they should not contradict or infringe on legal rights of employees.
The attestation commission must include a representative of the body of workers (for example, a trade union).
The representative of the trade union always protects the employee's rights.

Resort to paragraphs 5 and 6 tbsp. 81 It is quite difficult, as it will be necessary to have an indisputable evidence of the guilt of the employee. For example, a walk should be not just put in the working hours accounting table, but confirmed by testimony. In terms of gross violations of labor disciplines, a decision should be made at the meeting with the participation of the trade union employees, the latter, as a rule, first of all defend the rights of hired workers.
For example, I want to bring the case from my own life. When my daughter was 1.5 years old, I had the need to get a job. At the same time, I decided to change the place of residence and moved to Novosibirsk. He took the apartment, got a job on the instrumental factory. When hiring, I was promised to allocate a room in a hostel and a place in kindergarten for a child, as a young specialist, as I was arranged in the specialty, and the majority of workers was without special education, which affected the workshop. Through set time In three months, the head of the workshop went to the opponent, taking all his promises back. What should I do? Sitting with the child was no longer anyone, wages lacked for payment removable apartment. I wrote an application for a child care vacation, left the boss on the table, gathered things and returned to parents. They called me, threatened, demanded immediately to go to work, but I explained my position and decided to let everything on samonek. Honestly confess, I thought I was fired. Upon reaching the daughter of 2.5 years I got a job in my hometown, I bought a new labor bookSo I thought that there was fired me and the experience of 3 months I did not make the weather. But after the daughter turned three years old, in about a month they called me from the plant and asked why I did not go to work? It turns out that at the meeting the trade union demanded to satisfy my statement, and I was on the care of the child on vacation. They were able to dismiss me only after I arrived and wrote the appropriate statement.
As you can see, not everything is so simple when dismissing unilaterally.

Reduction or dismissal - what's the difference

Many in the reduction of the organization agree to write a statement on your own accord. Each motivates its actions in its own way. Someone does not want long disputes, someone from respect for the employer, and someone is simply because it does not know their rights and benefits while reducing. Dismissal at your own request, and not cutting, the employer is not shy to save on the employee, then why a hired person should not think about his benefits?
I will start with simple, not prescribed by the law of advantages and minuses. They are more likely to psychological aspects. After dismissal you need to look for yourself new job. Not everyone succeeds to quickly get enough time again, you will need time for the search, although it happens that a person is waiting for his dismissal before his dismissal. If there is no such place, the first time is dismissed by depression, resentment. It's good to try to cope with this condition quickly, and not to fall into it - even better. And even necessary, since when passing interviews, it will somehow affect you, and the depression will not speak in your favor. The question is always asked: "The reason for dismissal from the previous work." If you are dismissed to reduce, do not have to look for causes and explain them.
Now let's see what the law on the reduction.

Article 165. Cases of provision of guarantees and compensation.
Employees are provided guarantees and compensation in the following cases:
... with the forced termination of the work is not the fault of the employee;
In some cases, the termination of the employment contract;
In connection with the delay due to the fault of the employer issuing an employment record at the dismissal of the employee.

As well as:

Article 178. Weekend benefits
Upon termination of the employment contract, due to either a reduction in the number or staff of employees of the organization, an existence allowance is paid in the amount of average monthly earnings, as well as the average monthly earnings for the period of employment, but not over two months from the date of dismissal (with a testing of the day off ).
In exceptional cases, the average monthly earnings remains behind the dismissed employee during the third month from the date of dismissal to solve the employment service authority provided that in a two-week term after dismissal the worker appealed to this body and was not employed.
The output allowance in the size of a two-week average earnings is paid to the employee when terminating the employment contract in connection with:
the refusal of the employee from transfer to another work required by him in accordance with the medical conclusion issued in the manner prescribed federal laws and other regulatory legal acts Russian Federationor the absence of the employer relevant work;
Call of employee by military service or sending it to the replacement of its alternative civil service;
restoration at the work of the employee who had previously performed this work;
refusal to the employee from transfer to work to another locality together with the employer;
The refusal of the employee from continuing work in connection with the change in the working contract defined by the parties.

Dear MirSovetov's reader, knowing its average wage, you can easily calculate how much the employer will save, dismissed the employee at his own request instead of abbreviation. Exactly so much you lose, going on and agreeing on its conditions.
From the above article it is clear that before dismissing or cutting an employee, the employer is obliged to offer an alternative work in an organization, even if it is less paid.
Refusal to the proposed alternative posts, and you are saved by the right to receive compensation.
If there was a certification, then it is assigned to the qualification (or the degree of compliance of the position), which you may be asked for a decrease in wages, and not dismissal. The decision of the Qualification Commission can be appealed. If you do not hear in the organization, you can contact the Committee on the Protection of the Rights of Workers Either to Court. To appeal to court, most likely, you will need to seek help to a lawyer. Professional help guarantees you to restore justice, and, having studied all the circumstances of the case, the lawyer will tell you in advance about your chances of success. When a court decision in a positive side for you, all your costs (payment of the state duty, the work of a lawyer and other costs of the case) will be compensated for you by the guilty side, that is, the employer.

The benefit of the employer in dismissal at their own request also in the legalization of income and expenses. If yours wage It consists of two parts (official and in envelope), then, most likely, your employer will try to avoid any conflicts. In such situations, it is possible to negotiate "peacefully". Payment is not officially paid, perhaps a little increasing the amount due to you, after which you will write a statement on your own request. However, this option is also possible with transparent wage schemes.
Before carrying out the condition reduction and termination of employment contracts, the employer must report this to the election body of the primary trade union organization (in the employment service), and in the case of mass dismissal, no later than 3 months.
When you need to win the time until the moment of dismissal, you can resort to the last paragraph of Article 81 of the Labor Code of the Russian Federation:

The employee is not allowed to dismiss the employee at the initiative of the employer (except for the case of liquidation of the organization or termination of activity) during its temporary disability and during the stay on vacation.

You have the right to write a vacation application, even unpaid (for family reasons) before being dismissed.

In cases of labor disputes, the law is more often on the side of the hired employee. Do not be afraid to defend your rights. Do not refuse benefits and advantages. With full certainty that it is unfair to arrive with you, defend your position. Remember: besides you, no one will defend your interests.

How to dismiss the negligent and arrogant worker

* This material is older three years. You can clarify the author with the degree of its relevance.

How to dismiss the negligent and arrogant worker

Algorithm for the dismissal of an employee in the absence for this formal grounds. Labor Code on guard of the employer.

I will venture to assume that such a situation is familiar to many lawyers, as well as employees of personnel service: the head (client) puts the task to dismiss the employee, but there is no reason for this. Naturally, we are talking about the foundations enshrined in the Labor Code of the Russian Federation. Informal grounds, as a rule, is enough in such a situation: the employee can be a smoothell, unclear, disloyal and other, other.

And there are cases where the employee, knowing about its invulnerability and security by legislation, deliberately behaves in such a way as to demonstrate his helplessness to the employer. As an example of actions for the last scenario, this situation can be brought. The head of the organization turned to the author's author, who said that one of the drivers sabotage the activities of the structural unit, to which it is assigned: when performing labor tasks, all rules of the road movement, moves exclusively on the right row, consciously chooses routes with the most intensive movement. Naturally, a question was asked if it was possible to dismiss him?

The answer seemed to be obvious: no, it is impossible, the dismissal will be illegal.

But is it really? Could it be proposed to have a way out of the current situation? Indeed, in some cases informal grounds to part with the employee, so much that the continuation of his work in the team is fraught with the risk of dismissal of other employees.

IN civil law There is such a notion - "abuse of right." The prohibition of the abuse of the right is established in Art.10 Civil Code The Russian Federation, which as an effect of abuse, indicates a possible refusal to his judicial protection. In labor law there is no such concept. In practice, there are situations where the employee abuses its rights.

In this case, we will not discuss the options for dismissal at your own request in the sense of not essential aphorism: "Most of the dismissal statements are written under dictation." Also, it will not be about very convenient, in my opinion, the basis for dismissal - "by agreement of the parties", although it urges it strongly recommend.

I propose to carefully look at the list of grounds for dismissal at the initiative of the employer - paragraph 1 of Article 81 of the Labor Code of the Russian Federation.

It is obvious that the absolute majority of subparagraphs of claim 1 of Article 81 require the execution of certain actions or inaction, entailing legal consequences. "Come on" a walk, which was not really, it is impossible, as well as recognize the employee inappropriately occupied by the post without established procedures. "Loss of trust" is not impressing a person who is not associated with monetary or commodity values, etc.

P.5 Article 81 of the Labor Code of the Russian Federation can be a rescue circle of the employer in this case - repeated non-fulfillment by the employee without valid causes of labor duties, if it has a disciplinary penalty.

Anticipating objections, like that: "For application of paragraph 5 of Article 81, certain actions must also be made," I agree and I will indicate that I do not consider this basis as a true way to dismiss the employee. However, having experience with enterprises of different levels and idea of \u200b\u200bthe level of labor discipline, I can assume that the probability of successful use of P.5 Article 81 of the Labor Code of the Russian Federation in most cases is large.

So, what should be paid to paying attention to under the application of paragraph 5 of Article.81 of the Labor Code of the Russian Federation?

First of all, it is necessary to conduct a revision of local regulatory acts related to a specific employee. The situation is ideal when an employee is signed not only by an employment contract, but also a job description, an employee under signature acquainted with the rules of the internal labor regulation. Moreover, it is important that all these documents are not formally compiled (taken from the Internet, legal framework), and adapted to the situation at a particular enterprise. Must be written to the rules and prohibitions important for the employer. Otherwise, it may turn out that the dismissed employee becomes almost invulnerable: even allowing obvious violations of labor discipline, it will not be held accountable. And the attracted will always be able to challenge disciplinary recovery in court.

Definition of SK on civil cases of the Moscow City Court of October 12, 2010 in case No. 33-31970: "Disciplinary misconduct is the guilty, unlawful non-fulfillment or improper performance by an employee of labor duties assigned to him, including violation of job descriptions, provisions, employer orders . The counterpravity of actions or inaction of employees means that they do not comply with the laws, other regulatory legal acts, including the provisions and charters on discipline, job descriptions. "

Analyzing local documentation should be determined whether the employer "provoke" a violation of a disagreeable worker of labor discipline: to task (writing and within the employee's labor function), to put deadlines, formally approve the dress code, just become more vigilant in relation to the employee.

Definition of SK on civil cases of the Moscow City Court of October 12, 2010 in case No. 33-31970: "The decision of the court of first instance is canceled, since the court of first instance, exploring the grounds for applying to the plaintiff disciplinary recovers in the form of an expression, did not find out which specifically Violations served as the basis for the application of these recovery and whether these violations are associated directly with the employment responsibilities imposed on the plaintiff. "

It should be borne in mind that the excessive activity of the employer in this issue will be noticeable to the court, especially if it is manifested in respect of a particular employee, therefore, in order to avoid accusations of discrimination, their actions and the documents published should be carefully analyzed.

Other relevant articles on labor law:

Second an important point It is an emphasis by the employer of the order and the procedure for bringing to disciplinary responsibility.

According to paragraph 2 of Article 192 of the Labor Code of the Russian Federation, on the basis of paragraph 5 of Article 81 refers to disciplinary recovers. Consequently, the employee must be attracted to disciplinary responsibility in compliance with Article 193 of the Labor Code of the Russian Federation not only when the initial disciplinary action is applied, but also with direct dismissal.

The algorithm for the imposition of disciplinary recovery is:

1. We draw up a memorandum from the direct supervisor of the employee dismissed to the name of the director or other person, in whose functionality is incurred to disciplinary responsibility. In the note, we describe the event that there was a place to be, for example, being late for work, coarse communication with the client, if it is prohibited by the job description, etc.

2. We are awarded and handed to the signature to the dismissed employee document - the requirement to give an explanation - in which we indicate which violation of the work discipline was revealed, and please give an explanation on this fact.

Definition of SC on civil cases of the Moscow City Court of February 14, 2011 No. 33-3831: "Since Article 193 of the Labor Code of the Russian Federation is warranty, it obliges the employer to apply disciplinary recovery square from the employee an explanation in writing».

The refusal of the employee from receiving the requirement is recorded in the commission, or the record of this is made on demand and signed by two and three witnesses of failure.

3. Upon the expiry of two working days ( workers Days dismissedan employee) in the absence of explanations make up a commission of refusal to give an explanation. In the act, the Commission fixes that the explanation for a certain date from the employee did not come. Attention should be paid: even if the employee at the time of delivery to him the requirements to give an explanation reported that the explanation would not follow, activate the refusal and make further actions possible only two working days later. Otherwise, the procedure will be considered violated due to the deprivation of the employee of the right to self-defense in the form of presenting its position on the fact.

4. Let us give an order to attract an employee to disciplinary responsibility, indicating one of the possible sanctions provided for by Article 192 of the Labor Code of the Russian Federation (in our case, if it comes to first attracting, a remark or reprimand). In order to impose a disciplinary recovery in the form of dismissal, it is necessary to indicate the data of previous orders, in accordance with which disciplinary responsibility from the employee is not removed. Employers are important to know that other sanctions are not provided by the code: to finant, "punish the ruble", as many employers are practiced, it is impossible. If the employee caused damage to his actions, its recovery is made in a strictly defined manner that does not have a relation to disciplinary responsibility.

5. For three working days, I know the employee with an order to impose a disciplinary action. If an employee fails to sign in the order and confirm their familiarization - compile an act of this. The procedure is completed.

Since soon we are talking about the application of P.5 of Article 81 of the Labor Code of the Russian Federation, the procedure described above will need to be carried out at least two times (and for "sustainability" - three times). At the same time, the grounds (misconduct) should be different due to direct ban to attract twice for one disciplinary misconduct, which is important for the marriage disorders. Dismissal will be a sanction of repeated (or third) attracting a person to disciplinary responsibility.

An important component of the correctness of the procedure is the observance of the deadlines established by Article 193 of the Labor Code of the Russian Federation: disciplinary penalty is applied no later than one month from the date of the misconduct detection, not counting the time of the employee's disease, staying on vacation, as well as the time required for the opinion of the representative body of workers. Disciplinary recovery cannot be applied later than six months from the date of the misdeeding, and according to the results of the audit, testing of financial and economic activities or an audit - later than two years from the date of its commit. The time of production in the criminal case does not turn on this time.

In court, it was at the employer who will be obliged to prove the fact of compliance with the deadlines (for these purposes, a memorandum mentioned in the description of the procedure is needed. Obviously, in this case we are talking about a calendar month, a vacation can be both another and leave without a detention, and if the vacation without a detention exceeds a half-day period, to attract a worker to justice beyond its limits will be impossible. An exception is the audit of financial and economic activities (revision, audit), allowing the employer to bring to the responsibility of the employee within two years. However, in the case of verification, the court will establish at what point it began its holding: then if the employer learned (or was supposed to learn about the disciplinary misconduct, whether the check is not conducted in the last days of the biennium for its artificial extension. When establishing such circumstances, disciplinary penalties will be considered illegal as the resulting period for attracting disciplinary responsibility.

Another important nuance in the matter of timing when using P.5 Article 81 of the Labor Code of the Russian Federation is the preservation of the status "attracted to disciplinary responsibility." Article 194 of the Labor Code of the Russian Federation for this is a one-year period that can be reduced by the employer. Accordingly, the re-attracting an employee to disciplinary responsibility should take place within the year from the moment of the first order. Otherwise, the sign of repeatedly necessary for use in paragraph 5 of Article 81 will not be.

An interesting moment to pay attention to was the subject of consideration by the Perm Regional Court (the cassation definition of the Perm Regional Court dated 01.02.12 in case No. 33-1015-2012). Two independent disciplinary misconduct was committed two independent disciplinary misconduct in one day - 27.04.11. For the commission of the first S. was brought to justice 30.04.11, for the second - 06/05/11, at the same time, as a sanction was fired by P.5 of Article 81 of the Labor Code of the Russian Federation. The court, recognizing the dismissal illegal, indicated that the disposition of P.5 Article 81 requires the presence of a disciplinary recovery at the time of the second misconduct. Conversely: In order for the dismissal to be legal, a person who has a penalty must make a new misconduct. Meanwhile, in the period from 04/30/11 to 06.05.11, S. Disciplinary misconduct did not commit.

From the above, it should be concluded: misdeed, perfect in one day, if the person does not have recovers (or within the implementation of the procedure for attracting a person to disciplinary responsibility for the first time), cannot be used to dismiss the employee on the basis of paragraph 5 of Article 81 of Labor Code of the Russian Federation.

The situation is similar to the next situation: the employee involved in responsibility writes a declaration of dismissal at his own request, and within a 14-day term of preventing about dismissal (perhaps the third, and fourth ...) disciplinary misconduct. The natural desire of the employer is to dismiss the employee not at their own request, but on its own initiative, applying to p.5 of Article 81. However, guessing about the consequences, the employee goes to the hospital. Accordingly, the employer before the expiration of the 14-day term does not have time to carry out the procedure for issuing disciplinary recovery. In this case, after 14 days, the employee must be dismissed at his own desire, despite the fact that in fact, and the legally employer had the right to attract an employee to disciplinary responsibility.

Thus, applying P.5 of Article 81 of the Labor Code of the Russian Federation, a lot of features should be taken into account. However, the procedure for applying this item is simple, despite the seeming bulky. In any case, it is this item that makes it possible to manage to protect their interests in the conditions of "related hands" if employees abuse themselves rights.

(№1/2013)

foreign workers, personnel workshop, staff reduction, labor law, labor disputes

Rarely in which organization does not arise to dismiss the employee. There may be many reasons for this. For example, an employee did not come down with a team, he does not cope with his duties, suffers from any detrimental habit, etc. Naturally, you must first try to negotiate with the employee, so that he quit at his own request (paragraph 3 of Part 1 of Art. 77 Tk of the Russian Federation) either by agreement of the parties (paragraph 1 of Part 1 of Art. 77 of the Labor Code of the Russian Federation).

However, it happens that the employee does not want to leave, in spite of any arguments. In this case, the employer remains only to take advantage of the right to dismiss the employee on its initiative. If the employer decided to resort to this method of termination of the employment contract, then he should be very attentive and careful. Since one careless action or failure to comply with the requirements of legislation can lead to the emergence of conflict, the resolution of which will be transferred to the hall court sessions. And this threatens not only money costs, but also restoring a dismissed employee.

All the foundations of dismissal on the initiative of the employer are set out in Article 81 of the Labor Code of the Russian Federation. We'll figure it out in order to apply the most "popular" parting methods.

Discrepancy of the employee of the office

The employer has the right to terminate the employment contract with an employee who does not comply with the position or work performed due to insufficient qualifications confirmed by the results of the certification (paragraph 3 of Part 1 of Art. 81 of the Labor Code of the Russian Federation). The compliance of the actual duties and qualifications of employees with the requirements of official characteristics is determined by the attestation commission, therefore, the dismissal of the employee under the indicated basis without certification illegally (the letters of Rostrud dated April 30, 2008 No. 1028-C, from 06.03.2013 No. 1028-6-1) .

The dismissal of the employee on the inconsistency of the position occupied is not very popular among employers, since it is considered too time-consuming and stretched in time.

In addition, the employer may dismiss the employee, who, according to the results of the certification, does not correspond to the position being held, only if it is impossible to translate the work available at the employer (as a vacant position or work, appropriate employee qualifications and a vacant position or lower job), which It can be done taking into account his health status (Part 3 of Art. 81 of the Labor Code of the Russian Federation). The employee must offer all the vacancies available at the employer in a given area suitable for these conditions (vacancies in another area are offered if it is provided for by the employment or collective agreement). With a proposal for the transfer of an employee should be familiar with the painting.

note

The chief accountant can not be dismissed due to the loss of confidence. The Supreme Court of the Russian Federation came to this conclusion in the definition of 31.07.2006 No. 78-B06-39.

If the employee does not want to translate (it is necessary to receive a written refusal) or there are no suitable vacancies (the employee should be notified of this, and the lack of vacancies is confirmed by a staffing schedule), then it is possible to terminate the employment contract. Please note that the period during which the employer has the right to decide on the dismissal of the employee, the labor code is not defined by the Labor Code. However, in paragraph 12, in the decision of the State Code of the USSR and the State Protection Service of the USSR of 05.10.1973 No. 470/267, which is applied in a part not contrary Labor Code The Russian Federation, it is said that to decide on the transfer of an employee recognized as inappropriate by his position, to another work with his consent, the head may for no more than two months from the date of certification. If an employee cannot be translated into another job, the employer may terminate the employment contract with him in the same period.

It is worth noting that on this basis it is impossible to dismiss pregnant women, employees who worked in the organization for less than a year (paragraph 4 of Resolutions No. 470/267), women with children under three years old, lonely mothers raising a child under the age of 14 years (a disabled child under the age of 18), workers who do not have a diploma of special education, if it is not required by law, and so on.

Repeated non-fulfillment of labor duties

The basis of the termination of the employment contract may be repeated non-execution by an employee of labor duties without good reasons if it has a disciplinary penalty (paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation). According to the resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 (hereinafter referred to - Resolution No. 2), the dismissal in this case is possible only under the condition that a disciplinary penalty was previously applied to the employee, and at the time of repeated non-fulfillment of them without valid causes of labor duties Not filmed and not repaid. Recall that if during the year the employee will not be subjected to a new recovery during the year from the date of use of disciplinary recovery. Also, on the initiative of the employer, the request of the employee, the petition of his direct supervisor or representative body of workers, recovery can be removed before.

Single gross violation of labor duties

In paragraph 6 of Article 81 of the Labor Code of the Russian Federation, it contains an exhaustive list of single coarse violations by an employee of labor duties, for which the employer has the right to apply the recovery in the form of dismissal. To such misconduct, firstly, the program (sub. "A" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation). Under it is understood as the lack of workplace without good reason during the working day or shift, regardless of the duration, as well as in the absence of more than four hours in a row in the workplace without valid causes. Dismissal for the river is possible only if the worker's fault has the pregnancy causes in the workplace. The obligation to clarify the causes of the absenteeism is assigned to the employer. Also, he independently and objectively should determine whether the cause of the absence of an employee was valid or not. For example, the absence of railway tickets in the checkout is a valid cause of the absenteeism (the definition of the Armed Forces of the Russian Federation of 03/30/2012
№ 69-B12-1).

Secondly, the emergence of an employee in a state of alcoholic, narcotic or other toxic intoxication (sub. "B" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation). Such a state can be confirmed by a medical conclusion, testimony of witnesses, video surveillance cameras, etc. In this case, the employer is obliged to the employee's removal procedure from work (para. 1 Part 1 of Article 76 of the Labor Code of the Russian Federation). Under removal from work means suspension labor relationship Between the employer and the employee to eliminate the circumstances that were the basis for the removal. Also during this period is not paid wages. The decision on removal is issued by the order in which the name and the position of the employee are indicated, the circumstances that served as the basis for the removal, documents confirming the presence of grounds for the removal (acts, reports, medical conclusion, etc.), the removal period. The employee should be included with the order with the order. If he refuses to familiarize themselves, then it is necessary to make an appropriate act.

Thirdly, the disclosure of the secrets protected by the law (state, commercial, official and other), which became a well-known employee in connection with the execution of labor duties, including the disclosure of personal data of another employee (sub. "B" of paragraph 6 of Art. 81 TC RF).
On this basis, you can dismiss only those workers who undertake not to disclose such information. Consequently, in the employment contract with the employee who will be allowed to secretly, the condition should be prescribed on its non-disclosure. In addition, the employer should collect evidence of the disclosure by the employee of secrets, as well as evidence that these information relate to the law protected by law. An employer may demand
From the employee who smoothed a service or commercial secret, compensation for all losses incurred.

note

When reducing states, the employer is obliged to comply with the legislative priority. So, the advantage of those employees whose labor productivity and qualifications are higher. If these parameters are equal, then the preference should be given to family and those faces, in the family of which there are no workers with independent earnings, persons who have received injury or professionals, people with disabilities, employees with an increased training company.

In the category of coarse, it falls, with the permission to say, violation, as the commission of the embezzlement (including small) of someone else's property, waste, intentionally destruction or damage (sub. "G" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation ). Under someone else's property is meant any property that does not belong to the employee who has committed theft. In this case, the employer even in the presence of guilty actions will not be able to apply recovery in the form of dismissal in a short time. This is due to the fact that the commission of embezzlement should be established by the judgment of the court or by the decision of the judge, the authority, an official authorized to consider cases of administrative offenses. Thus, the monthly period provided for the application of disciplinary recovery will be calculated only after the court sentence entry into force, the judge, the authority, the officials that are considering cases of administrative offenses. It is worth noting that if the court was sentenced, which is provided for the punishment in the form of imprisonment, or it eliminates the continuation of the former labor activityThe employer is obliged to terminate the employment contract on the ground: the conviction of the employee to punish, eliminating the continuation of the previous work, in accordance with the verdict of the court that entered into force (paragraph 4 of Part 1 of Article 83 of the Labor Code of the Russian Federation).

Finally, the basis for dismissal is the violation of labor protection requirements, if it led to serious consequences (accident at work, an accident, catastrophe), either knowingly created a real threat to the onset of such consequences (sub. "D" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation ). Violation of labor protection requirements should be established by the Commission on Labor Protection or Commissioner for Labor Protection. At the same time, the Commission for Labor Protection should be established in compliance with the requirements of Article 218 of the Labor Code of the Russian Federation.

In any of these situations, the employer must apply recovery in the form of dismissal in the manner established by Article 193 of the Labor Code of the Russian Federation.

Dismissal in connection with the loss of confidence

Allocate in connection with the loss of confidence (paragraph 7 of Part 1 of Art. 81 of the Labor Code of the Russian Federation) you can only a limited circle of workers. So, according to paragraph 45 of the Resolution No. 2, the employer has the right to terminate the employment contract due to the loss of trust only with employees directly serving monetary or commodity values \u200b\u200b(reception, storage, transportation, distribution, etc.).

These include: cashiers; storekeepers; Travel drivers; Accountants cashiers; sellers; heads; chiefs of warehouses, etc.

Dismissal is possible, regardless of whether an employee is concluded with an agreement on full material responsibility (individual or collective) or not. It is also not important to what labor responsibilities (main or additional) is the maintenance of monetary or commodity values.

In order for the employee to be fired in connection with the loss of confidence, he must accomplish the guilty actions that would serve as a reason for the loss of confidence in his employer. Otherwise, dismissal is impossible.

The employer independently determines which employee actions really undermine confidence. In practice, such actions are most often attributed:

the use of an employee of the property intended for the execution of labor duties for personal purposes;
fictitious write-off of goods and values;
fraudulent actions;
violation of cash discipline;
theft, loss or destruction of the entrusted employee of the property;
violation of the rules for storing and issuing material values;
reception and issuance money for services or goods without proper paperwork;
understatement or overestimation of prices for goods;
weling, counting, measuring and body kit;
shortage;
violation of the rules for selling alcoholic beverages and cigarettes;
violation of the rules for issuing drugs containing narcotic substances;
storage of keys from premises with material values in improper place;
violation of local regulatory acts containing the procedure for issuing commodity and monetary values;
actions that create a threat to theft or loss of property, etc.

The fact of the commission of one of the above-mentioned actions in itself cannot serve as a reason for dismissal due to confidence. Termination of the contract for this basis is possible only if there is evidence of the guilt of the employee. Consequently, the employer is obliged not only to comply with the procedure for the application of recovery (Art. 193 of the Labor Code of the Russian Federation), but also to assemble the evidence of the fault of the employee (for example, to conduct an internal investigation). If there is no evidence, the dismissal due to the loss of trust will be illegal.

Igor Shilov, lawyer

Almost anyone at least once in his life experienced that he could fire him from work. Some people in such fear live constantly, like those who truly periodically allow violations and conscientious workers.

Let's figure it out for which it is the employer who has the right to dismiss the employee, and for which - no.

Dismissal due to the reduction in the number of state

First of all, it is worth allocating dismissal due to the reduction in the number of personnel. They resort to it when the management of the company believes that the content of a specific position or a number of posts is not economically profitable.

By and large personal guilt in such a dismissal, there is no employee, although executives and use it sometimes to get rid of disagreeable employees.

This type of dismissal is performed completely at the initiative of the employer. True, there is a limited circle of persons to which it cannot be applied. This, for example, pregnant women, minor workers, single mothers. These and some other categories of persons dismiss from work to reduce the company's leaders cannot.

But at the same time, there is a much larger circle of persons who does not fall under the ban on dismissal to reduce jobs. For these employees, in order not to get under the reduction, it is very important to prove the administration of the company the importance of your position, as well as the personal benefit that this employee brings organizations.

That is, not to be dismissed in the reduction, first of all you need to please the management of the enterprise and prove its significance.

And for the leadership of the company, the main thing is to remember that it is not a specific person to reduce, but a position. That is, after the dismissal of an employee to reduce anyone to work instead, it is impossible to take, and this position from the staffing should be removed.

In the opposite case, such dismissal can be recognized by the court illegal, and the employee will restore at the same place.

Dismissal due to the termination of the enterprise

If in the previous paragraph, the employee at least somehow affect the likelihood of his dismissal, then the ordinary employee cannot prevent the loss of work in connection with the liquidation of the enterprise.

Even if it is to apply all the strength, working for the benefit and prosperity of the company, its efforts can bring real fruits and prevent the collapse of the enterprise only if such efforts also include other employees of the organization.

Dismissal

Dismissal for violation of labor discipline is a fairly common way to exemplate from the office, which is often applied to negligent employees. So, on this item can be dismissed for:

regular late to work;
absenteeism;
the appearance on the territory of the enterprise in a drunken form;
theft of ownership of the company or the embezzlement of financial resources;
damage valuables;
disclosure to unauthorized persons of commercial mystery.

A prerequisite for this type of dismissal is the strict fixation of all violations, according to the procedure established by the law. It should be noted that with each act of violation, the employee must be familiar to personally. Also, he should be invited to give a written explanation of what happened.

An employee is entitled to choose whether to give explanations or refuse to give. True, the latter will be regarded as recognition of guilt. In case of refusal to give an explanation, the management of the company must be compiled a corresponding act with signatures of witnesses.

If the employer during the dismissal procedure allowed a mistake somewhere, then in the future, a dismissed worker, even in the presence of real disorders, can easily recover through the court.

Dismissal for the discrepancy of the position

But dismissal on this article is relatively rare, as it is quite difficult to prove the inconsistency of a particular person and problematic. This requires to create a certification commission, which must establish whether the abilities and knowledge of the person assigned to him with duties.

But even if the Commission admits that a person is not suitable for his position, the employer is obliged to offer him another type of employment, which will correspond to his professional skills.

And only in case of refusal of an employee, it can be dismissed from work as a person who is not relevant to the position. However, the decision of the attestation commission still dismissed employees can challenge in court and due to its decision to recover in the workplace.

Due to this complexity of the procedure and the lack of a guaranteed result, employers are trying to dismiss employees on other articles of the Labor Code, and the last time they are dismissed for the discrepancy of the position, when all other options have not given results.

Amoral behavior

According to the current labor code, dismissed from work may also be for immoral behavior. True, this item can be extended only to workers of various educational institutions (schools, boarding schools, etc.) and in fact not applicable to most existing professions.

As in the case of dismissal for violation of labor discipline, the essence of an immoral act must be fixed in the appropriate act.

Refusal to the employee from their duties

If you refuse to fulfill the duties assigned to you job descriptions, the head of the enterprise has the full right to dismiss you from work. In addition, according to the law, the employer has the right to change the working conditions, in particular, the work schedule, the list of responsibilities to be executed, the amount of payment and so on.

True, he is obliged to notify an employee two months before the application began. If the employee refuses to perform these requirements, it can be dismissed. Also, this item can be refused to move to another locality In case of moving there, the organization where you work.

Dismissal when changing the owner of the organization

If the company has changed the owner, he has the right to dismiss the management of the company: director, his deputies, chief accountant. On ordinary workers or managers of the middle and lower link, this right of the owner of the company does not apply.

In addition, the former leadership of the company, the new owner is obliged to offer other jobs, and in case of refusing to run the procedure for dismissal.

Who can not be dismissed under any circumstances?

The labor legislation stipulated a list of persons who cannot be dismissed under any circumstances. These individuals include women waiting for a child, minor employees of the enterprise, trade union leaders. These workers can be dismissed only in the case of complete liquidation of the company.

But this does not mean that they can afford the behavior that does not match the labor schedule at the enterprise, or inappropriately carry out their immediate responsibilities, since the executives of the enterprise and except layoffs have tools that can affect the negligent employee. For example, reprimand or deprivation of award.

Prior to work, persons on vacation (tariff, at their own expense, maternity care, etc.) cannot be dismissed until its work (tariff, at their own expense, maternity care, etc.). They can be dismissed only on that day when they began their duties.

In addition, there are a circle of persons who can not be dismissed to reduce, but you can be dismissed at the initiative of the administration according to another article. For example, for violation of the employment routine. These include single mothers and women who have children up to three years. In the absence of a child's child, the same norm applies to any person that officially takes place.

Output. As you can see, dismiss the employee from work can for a very different reasons. Sometimes these reasons are largely dependent on it (in case of violation of labor discipline), and in other cases absolutely independent (in the event of the liquidation of the enterprise).

But with any scenario, a qualified and responsible worker has more chances to stay at its workplace than an employee who comes to the case after the sleeve or violates the order set in the enterprise. Persons negligent to their official duties, in any organization the first on the list for dismissal.

All questions conjugate with dismissal, in 2017 regulates the head of the TC of the Russian Federation. In particular, all prerequisites for termination of labor relations on the initiative of the employer contains Art. 81 TK RF.

The article discusses the main reasons for such dismissal, the powers and procedure of the head, current in 2017.

The reasons for the dismissal of an officially executed employee - and what can be dismissed by an employee who works on the employment record?

The dismissal of an employee without his consent limits the actions of the head: one desire is not enough.

The TK RF contains a list of reasons for canceling the employment contract and a specific procedure for each case. The main task - notify subordinate in advance In order and deadlines approved by law.

Absenteeism

If an employee has laid without acquittal reasons at work full day or more than 4 hours, the employer has the right to dismiss him for the walk (paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation).

The specified violation also applies:

dismissal at the request of the employee and termination of the agreement without timely warning of the authorities;
unauthorized use of rations;
not agreed with the boss care of vacation.

Within 2 days from the date of absence, the employee can write an explanatory one.

If it is refused, a document is drawn up, which fixes the circumstance of the nebid to work. He is signed two witnesses. The autograph of the trash is desirable.

With his disagreement, you need to write: "I refused the signature." Under the phrase should subscribe eyewitnesses.

If there is an explanation, the employee must attach confirmation of them.

Council. In a labor agreement, it is necessary to indicate the place of work of the subordinate. This will help witness his illustration in case of absenteeism.

Failure to follow schedule

The lateness of less than 4 hours does not apply to the absenteeism. At the same time, the head has the right only to declare a subordinate remark or a reprimand for a violation of the discipline of labor.

With a repeated breakdown of the schedule of the day, the Director receives the legal right to dismiss the employee. This is permissible if the previous recovery has not yet been removed, i.e. it passed less than a year from the moment of the first offense (Art. 81, Art. 194 of the Labor Code of the Russian Federation).

The same sanctions are provided for leaving work before a time schedule.

The fact of violation by the employee of the discipline must be documented by the act. Otherwise, the punishment imposed on it is considered illegal.

Important! Disciplinary recovery can be applied to an employee within a month from the date of violation of the labor regime. The period is prolonged for the time of illness, vacation, time spent on the view of the opinion of the oppugan (Part 3 of Art. 193 of the Labor Code of the Russian Federation).

Violation of work discipline

Under discipline, labor is meant the list of rules established in the company and compliant with all employees.

These violations include:

non-compliance with safety technicians who led to an accident;
theft and damage of the company's property;
disclosure of commercial secrecy;
refusal from planned medical examination or training;
illegal actions;
failure to execute bindings and others.

The dismissal procedure on the above criteria is similar to the actions of the manual under the passage: A statement of misconduct is drawn up, if there is evidence, an order is published on the termination of the employment agreement.

Alcoholic intoxication

To dismiss the worker that appeared at work in a drunk, need to carry out the following activities:

conduct medical examination in the presence of an entrepreneur or a representative of LLC;
arrange the act of staying subordinate to the company in a drunken state;
arrange an order for removal;
require an explanatory note;
make a report on the incident;
publish and register an order for dismissal at the request of the head;
make a note-calculation (Blank T-61), to familiarize the guilty with a document under the signature;
make a record in labor, base - PP. 6 p. 5 tbsp. 81 TK RF;
put the book on your hands and make it in the book of accounting.

Usually employees noticed in working time drunk agree to quit on your own request.

In order to avoid the above events, it is worth offering a person to disperse peacefully.

More easier to dismiss employees, if ohth or IP - the subtlety of the law in the table

The procedure for canceling the employment contract on the initiative of the administration is regulated by the Labor Code of the Russian Federation. It has a similar algorithm for all organizational and legal forms.

The dismissal of employees of LLC and IP have some differences:

Indicator	Ltd	IP
Workers	Reception and dismissal without additional difficulties.	Registration in Sociality and pension Fund As an employer, providing copies of labor agreements.
Output benefit	Posted by necessarily	Not obliged to pay
Causes of cancellation of the agreement	Specified in the TK RF	Special moments can be described in the employment contract
Compensation for dismissal	Specified in the TK RF	Special moments can be described in the employment contract
Opening alert	For 2 months	The term is indicated in the labor agreement

Dismiss employee IP is easier than employee Ltd., since the basic rules of termination of the contract: the deadlines of the alert, payments, etc. The entrepreneur when taking a citizen to work is entitled to consolidate in the labor contract with him.

Subsequently, this document will be the basis of the IP of Action at the dismissal of the employee and will prevent judicial and employment disputes.

Nuances of dismissal in OOO and IP - how to dismiss a pregnant woman, a pensioner, a single mother, etc.?

Dismissal

The termination of the employment agreement on the initiative of the head by law is not provided. In this case, the company's administration suggests subordinate to leave the position on their own request - or be dismissed under the TK RF for a violation of labor discipline.

The situation has positive trends for both sides. The company will not seek evidence, make up a large number of papers - and lose an incomplete employee. He will also receive an employment book with a "good" article.

With the consent of the employee, the agreement is terminated on the day of writing a statement.

Dismissal without working possible by agreement of the parties. The employer offers this employee for certain compensation.

This is fixed written contract. It records the date of termination and other dismissal conditions. After signing the document, none of the parties have the right to refuse him without the consent of the second party.

Dismissing employee without application

At the initiative of the bosses of an obsistent employee, you can dismiss under art. 81 TK RF.

The following foundations are most suitable:

Reduction of the staff of the company or IP

This is a long and time-consuming process.

The manager must perform the following actions:

adjust the regular schedule;
notify employee in writing under his painting 2 months before dismissal;
suggest subordinate vacant posts suitable for specialization and health status;
subject the day off (Art. 178 of the Labor Code of the Russian Federation).

With a reduction, the administration often violates the procedure for dismissal, so employees with the help of lawyers are restored in positions.

Before dismissal, you should make a clear algorithm of actions so that the reduction does not seem "imaginary".

Non-compliance with the post and performed functions revealed during certification

Certification is held. According to her, the Commission makes a decision on the basis of which the director publishes an order. It reflects the data on which employees did not pass the procedure and are subject to dismissal.

Employer obligation to offer an employee of other vacancies available on the company.

To certification you need to carefully prepare: appoint a responsible performer, learn regulatory base. It should be carried out throughout the organization, and not for a separate employee.

Dismissal on probation

With unsatisfactory test results, the employer has the right to dismiss the subordinate to the end of the trial period. At the same time you need to observe all the details.

To warn employee needs for three days Before the date of liberation from office (Art. 71 of the Labor Code of the Russian Federation). The manager must report on the decision in the form of a written notice indicating the motives.

If an employee fails to sign in the document, apply one of the following ways:

make an appropriate act in arbitrary form;
make an entry of disagreement of an employee to sign a signature directly on the notification itself;
send a registered letter with notification and description to the home address of the employee.

The evidence of the unsatisfactory labor of the subordinate during the test period are:

reports from the direct chief;
complaints of members of the team and customers;
acts about non-compliance with the norms of production and non-compliance rate;
written reports of the employee about the assignments made;
decorated documents indicating disciplinary misconduct.

Dismissal of a pregnant woman without her consent

According to Part 1 of Art. 261 of the Labor Code of the Russian Federation, the employer cannot be a pregnant employee - even when performing a disciplinary misconduct.

Exception is the liquidation of the company or termination of the IP operation; The expiration of the labor agreement decorated for the period of the fulfillment of the duties of the missing employee. The condition should be performed: The head does not have the opportunity to provide it with a different job before the end of pregnancy.

Pregnancy confirmed by a medical document - the basis for the cancellation of the previously established test period (Article 9, 70 of the Labor Code of the Russian Federation).

Require a certificate of confirmation of pregnancy Employer can no more than once every 3 months.

Council. If the employee is refused to submit a document on pregnancy, including re-, relieves the ban on dismissal. It is necessary to argue the refusal documented.

Forced Dismissing Mother Single

A single mother cannot be dismissed without her consent, if he brings up a child under the age of 14. The same rule applies to single women who adopted children.

Exceptions are specified in art. 81 TK RF.

Thus, the employer has the right to terminate the employment agreement with a woman relating to this category if it has repeatedly had disciplinary recovery due to misconduct, reaching the rules with the rules of labor regulations.

The list of violations is given in Table:

Provinity	Comment
Improper execution of labor functions	Incorrect execution
The appearance at work in a drunk	Under the influence of drugs
Providing fake paper director
Lack at work for more than 4 hours	Regarded how to walk
Regular late	No valid reason
Amoral deed	Does not correspond to the moral appearance of an employee of the educational or educational sphere
Disclosure of information	If it is a state or service secret
Deliberate damage and damage to the organization
	Including cash waste

Also a lonely mother can be fired when liquidating the company.

If she is a leader - then for a single violation of labor discipline.

Dismissal of a woman with a child up to 14 years

If a woman raising a child under the age of 14 is a single mother, her dismissal is not allowed. Exceptions are cases of liquidation of the company or the perpetrators of the employee.

If the mother does not have a lonely status, the employer has the right to make dismissal without its consent on all the grounds provided for by the legislation of the Russian Federation.

Dismissal of a pensioner without its consent

The law does not establish any benefits upon termination of the employment agreement with this category of employees. The only advantage of persons retirement age at the end of labor activity is that they are not obliged to work out 2 weeks.

Massay the pensioner bosses may for the following reasons:

liquidation of the company;
gross violation of the rules of labor regulations and the norms of the TC RF;
non-compliance of the post on the results of certification;
guilty actions;
state reduction.

By itself, the retirement age cannot be a reason for dismissal.

Dismiss a pensioner manager can for health. This requires a confirming diagnosis of medical conclusion. Pre-employer must offer such an employee a different position he can occupy with his disease. In its absence, the contract is terminated according to paragraph 8 of Art. 77 TK RF.