How to fire an employee at the request of the employer. tips from psychologists on how to fire an employee and not make an enemy: “I don’t dare detain you any longer!”

The 3 most common options for dismissing an employee: incompatibility with the position held, violation labor discipline, being under the influence of alcohol or drugs.

Is it possible to fire an employee without his desire?

During a crisis, many enterprises try to reduce their staff to reduce costs, but it is not always possible to part with them by layoffs. at will. If you are fired due to staff reduction, this will entail additional payments, which is disadvantageous for the employer.

Entrepreneurs who do not know how to fire an employee without his or her desire according to the law can familiarize themselves with possible reasons for dismissal according to from Art. 81 Labor Code of the Russian Federation:

Insufficient qualifications, inadequacy for the position held, failure of subordinates to pass certification.
Failure to comply with the terms of the contract labor responsibilities, repeated disciplinary violations.
The appearance of an employee in the organization in a state of intoxication.
Violation of labor protection requirements established by the commission.
Theft Money.
Committing something contrary moral standards an act that makes further work activity impossible.

To avoid litigation, in which the court will definitely side with the employee, it is important to know one detail: you cannot fire an employee while he is on sick leave, pregnant or on vacation.

Dismissal if the employee is not suitable for the position held by the employee

To fire an employee due to non-compliance, you need to take several steps:

Issue an order for the employee to undergo certification, then give him a notification about it.
Organize certification, including the most difficult tasks for him, which he will not be able to cope with.
Recognize the employee's inadequacy for the position held.

For a manager, this method is not the most acceptable, because By law, he must offer an uncertified employee a vacant lower-level position, which he can accept while remaining employed by the company.

Dismissal for violations of labor discipline

If an employee has previously been subject to disciplinary action and is subject to a reprimand or reprimand, the employer has the right to dismiss him if he repeats the violation. What the procedure itself looks like:

The fact of a repeated offense is documented by means of a memorandum, act, decision of the commission, or by indicating the actual time worked in comparison with the general norm of man-hours.
An explanatory note is required from the offending subordinate. If it is absent, the employee will be able to challenge the dismissal in court, referring to Art. 193 of the Labor Code of the Russian Federation, according to which the employer is obliged to request it from the subordinate. If he does not provide it within two working days, a corresponding act is drawn up.
Orders are issued for disciplinary action for systematic violations of labor discipline, as well as for dismissal for failure to fulfill labor obligations.
A record of dismissal is made in the work book, indicating the reason - clause 5, part 1 of Art. 81 Labor Code of the Russian Federation.

On the employee’s last day of work, it is necessary to make all payments due to him: salary earned for the period worked, compensation for unused vacation etc.

Dismissal of an employee due to intoxication

Such cases are extremely rare, and it is easier to get rid of an employee through certification or disciplinary violations, which everyone has. If there is any doubt about his sobriety, you need to do the following:

Conduct a medical examination. It is advisable for an entrepreneur to attend.
Draw up a report on whether a subordinate is in the workplace or on the territory of an enterprise in a state of alcohol (drug) intoxication.
Issue an order for removal from work.
Request a note of explanation from the employee.
Draw up a report on the fact that the employee appeared in a drunken state.
Draw up a dismissal order at the initiative of the employer and register it in the registration journal.
Make a calculation note in form T-61, familiarize the former subordinate with the order against signature.
Make an entry in the work book indicating paragraphs. b clause 5 art. 81 Labor Code of the Russian Federation.
Issue a completed work book and make an entry in the Accounting Book.

As a rule, the majority of employees seen at work in drunk, agree to leave of their own free will, so it is quite possible to avoid the above procedures by offering to disperse peacefully.

The simplest reasons for dismissal

It’s easiest for employers who hire employees for a certain period under a contract, because after the expiration of this document, it does not have to be renewed. In addition, the most common reason for dismissal among managers is failure to comply with labor discipline, which includes violations common to 90% of subordinates:

Absenteeism and tardiness.
Premature leaving work without an agreement with management.
Ignoring the director's orders.
Failure to fulfill direct job duties.

Despite the many options for the development of events, the simplest is still voluntary resignation, because only in this case the dismissed employee will not be able to win a claim in court unless he proves that the dismissal was under pressure from the employer. Even in this situation, the chance that the court will side with him is very low.

Every second or third person faces the problem of being fired. The reasons may be different, but there are several rules of moral and ethical content that must be observed. From a legislative point of view, there are also nuances, after studying which a whole series of problems can be avoided. negative consequences. How to quit your job correctly so as not to harm your own career and remain in good standing with your former employer?

Difficult decision

Most people try to create a microclimate that is favorable for themselves and those around them in the workplace; the quality of work of the entire team depends on this. Friendly relationships are established with colleagues and adequate relationships with management. But there comes a time when responsibility is accepted and difficult decision leave your usual environment. This may be due to one or more reasons:

Obtaining a more financially advantageous offer.
Career prospects and professional growth at another place of work.
Changing of the living place.
Conflict with the manager.
Illness or caring for a disabled family member.
Inability to maintain working relationships with one or more co-workers, etc.

Everyone has a good reason and a number of problems that force a person to change jobs. But you also need to leave correctly; unnecessary emotions, especially negative ones, will not help avoid negative consequences. First of all, it is necessary to calm down and remember the legal side of the issue, the rights and responsibilities of the employee, which are regulated by the Labor Code. The dismissal of an employee must meet all his requirements. Let's talk about everything in order.

Dismissal at your own request

A difficult decision has been made, we are preparing to complete the procedure correctly and competently. Article 80 of the Labor Code of the Russian Federation is devoted specifically to the procedure for terminating a previously concluded employment contract with an employing organization at the initiative of an employee. The main provisions of this law are as follows.

Each employee has the right to terminate the contract with the employer on his own initiative by notifying the management of the enterprise writing.
The resignation letter is submitted to the head of the unit for review two weeks before the termination date of the contract. Within 14 days, the employee is obliged to perform his duties as usual (according to job description) and go to work every day.
By agreement between the employee and the head of the enterprise, the notice period for dismissal can be reduced, i.e. you can work for more than 14 days, the number depends on agreement.
Dismissal of an employee on the day the application is submitted can be made if it is impossible to continue working (illness, admission to educational institution, violation by the employer of the Labor Code of the Russian Federation or other regulations, retirement age, disability, urgent relocation and other circumstances specified in the application).
After submitting the application employment contract, concluded earlier, must be terminated on the 14th day. During this time, the employee has the right to pick it up, in which case the agreement continues to be valid. But if the corresponding order is issued, and this position another employee is invited, then there is no reason to refuse to hire a new employee.
After the expiration of the statutory notice period (2 weeks), the employee has the right not to attend workplace, even if the employer has not terminated the contract.
On the last working day, the company is obliged to pay the employee the salary and all due compensation, and reflect the dismissal in the work book, which is issued on the same day.
If the period allotted by law for notice of dismissal has expired, and the employee continues to go to work, and the employer has not issued an appropriate order, then the application may be considered cancelled.

Procedure

The Labor Code reduces dismissal to three main points.

Submitting a letter of resignation.
Completion of the warning period (at least 14 days from the date of application).
Receipt of payment and work book by the employee (agreed with management, but no later than the last working day).

In real conditions it is possible various options developments of events that are based on the parties’ disagreement with any point. Employers often try to delay the work period if the employee is valuable to the company: they do not sign the application or say that they did not read it in a timely manner. Sometimes unpleasant situations arise with delays in settlement and receipt of necessary documents. On the part of the employee, the most common violation is failure to fulfill job duties and absence (without a good reason) from the workplace after filing an application, which is regarded by the employer as absenteeism. From the point of view of the Labor Code, this may entail dismissal under another article or sanctions (including fines) prescribed in the internal documents of the enterprise. In any case, all disagreements can be resolved through negotiations, which is what lawyers advise. If this is not possible, then each party can appeal to the courts. To avoid conflict situations, the employee and the employer must strictly follow the laws and not allow the opposite party to violate them. First of all, we write the resignation letter correctly. As shown arbitrage practice, a large number of mistakes are made by the employee himself.

Statement

There is no clearly developed form of application for dismissal in legislative acts, so controversial situations often arise. Enterprises independently create unified forms that are used as a form. In most cases this type The document is written by hand and has standard content. How to quit your job correctly? Write a competent statement, and many lawyers advise doing this in two copies and registering it as an incoming document or signing a person who has read it official indicating the date. The second copy remains with the employee and can be used in the event of an emergency. conflict situation. For example, if a document is lost or it is untimely provided by the head of a department to the director of the enterprise. Standard form The statement looks like this:

To the director of Neva LLC

Sidorov I. I.

From accountant Selezneva A. Yu.

Statement

I ask you to dismiss me from my position at my own request on July 14, 2011.

Selezneva A. Yu. (signature) 07/01/2011

This form is simple and informative, it indicates the expiration date of the warning period and clearly states the date of submission of the document. An employee can write a letter of resignation in advance (six months, three months), this is not prohibited by law, although this situation rarely occurs in practice. As judicial practice shows, most controversial situations can be avoided if the employee and employer clearly agree on their wishes in writing.

Terms of dismissal

From the moment of registration of the application, the legislation establishes a period (two weeks) of 14 days, after which the employee must receive a payment upon dismissal and a work book form with the corresponding entry. For many reasons former employee strives to reduce this time. The problem is easily solved if the parties (employee and employer) mutually agree. You can quit your job without working time by filling out an application accordingly or by signing a separate agreement. The resignation letter indicates the date of termination of the contract desired by the employee. If the manager signs it, the order is issued within the specified period. For the employee, the main task is to correctly justify the need urgent dismissal and the presence of a person who can begin to perform his duties in a short time. Objective reasons may include illness, emergency family circumstances etc. If the head of the enterprise does not agree with the employee’s arguments, then he will have to work out the full time required by Article 80 of the Labor Code of the Russian Federation. Therefore, the question of how to quickly quit a job is relevant for many workers, especially for those who are afraid of missing out on a more promising job that seems very attractive to them.

Calculations upon dismissal

After terminating the contract and signing the corresponding order, the employee must receive all required types of payment, and compensation is also paid. Upon dismissal, the accounting department makes an accrual wages based on actual time worked for the current month, regardless of the end date of work. As a rule, problems do not arise with this type of payment; the calculation is carried out in the standard mode. Most often, questions regarding accrual arise when issuing compensation for unused vacation. Upon dismissal, the calculation of this amount may cause controversy. Vacation pay is accrued to employees in accordance with Article 121 of the Labor Code of the Russian Federation annually, while many employees actually do not go on vacation at their own request or on the initiative of their immediate supervisor. Information about this payment is collected for the entire period of work, i.e. for each year, regardless of the fact of using vacation. Compensation upon dismissal is regulated by Article 127 of the Labor Code of the Russian Federation. If, due to the type of activity, an employee has the right to additional (extraordinary) leave, then his payment is regulated by the internal regulatory documents of the enterprise and the decision of management. For advance payments of vacation pay, this amount is deducted from the calculation. Other types of severance pay and compensation payments depend on the type of activity of the enterprise and the profession of the employee.

Withdrawal of application

Sometimes an employer, when negotiating with an employee regarding dismissal, due to the value of a specialist, tries to interest him more favorable conditions work and leave at the enterprise. This could be a salary increase, career or a more responsible area of work. At the same time, the remaining 14 days of work are left for the employee to carefully consider management’s proposal. The result is not always predictable, but most people, when thinking about the prospects for promotion and the fact that they can remain in their home team, most often withdraw the previously written application. This is usually done in two ways: either after the expiration of 14 days, the employment contract remains in force by agreement of the parties, or an official document is written to invalidate the resignation letter. Unified form the document does not exist, so it can be written in any form. It is invested in the employee’s personal file, and the application for voluntary resignation loses legal force.

Leaving correctly

Regardless of the reason for leaving, the employee must behave very correctly and with dignity, leaving the best impression of himself both as a person and as a specialist. To do this, you need to follow several basic rules. You can’t go “nowhere”; you first need to find a place to work and go for an interview. If the future location is objectively more promising, then you can prepare the team for your departure. Some employers understand that an employee is looking for a new job because they cannot provide prospects for further growth and development. Although most managers and colleagues treat someone who submits a letter of resignation as a traitor.

Diplomacy

It is possible that bright job prospects in new position Your long-awaited position will remain a dream, so you should communicate very correctly with management. No one is safe from mistakes; what if you have to go back? When talking with the director, you must use maximum arguments and a minimum of emotions. The reason for leaving should be formulated in such a way as not to affect the person’s self-esteem. The best way to start a conversation is with gratitude for invaluable experience work under his leadership. If you formulate your request correctly, you may be able to quit your job without working off. But at the same time, it is necessary to provide justification for the completion of all your current affairs. If the diplomatic approach gave a positive result, then you can ask for recommendations for a new job. And then you can even sit down to write a book “How to quit your job the right way.” The basic rule: do not slam the door and shout about what a bad enterprise it is, even if the dismissal of an employee occurs on the initiative of the manager, you must at least “save face.”

Team

How to quit your job correctly so as not to cut off friendly ties and have the opportunity to return? The recipe is simple - be open and friendly. The work team is big family- if you explain correctly, they will understand and support you. Required condition upon dismissal is the delivery of all current projects, the completion of the work begun. It will be very good if an employee brings a qualified specialist to his place, whose training will not take much time. Then the work process will not suffer, which will greatly please the management of the enterprise and colleagues at work. After submitting the dismissal document and if it is signed by the director, it is necessary to notify all contractors with whom work and personal contacts have been established. This will help you not to lose useful connections and establish them if necessary, and it will also make the work of the person who will work with them in the future easier.

The final stage

After receiving the entire settlement amount and due compensation, do not forget to say a warm goodbye to your colleagues, a small tea party will leave Nice memories. But in the holiday bustle it is necessary to collect everything Required documents. The work book must contain a record of termination of the employment contract at the initiative of the employee, i.e. Art. 80 of the Labor Code of the Russian Federation. If you manage to get a letter of recommendation from management, it will be very useful both for the employee and for the image of the employer’s company. From the accounting department you must obtain a certificate in form 2-NDFL (income tax) for the last 6 months. It will be needed at the new place of work to calculate sick leave or vacation. Do not try to take with you everything that has been developed; colleagues will be grateful if the developed pivot tables or you will leave the indicator charts to them and teach them how to make the same ones themselves.

In fact, any dismissal in any organization, regardless of whether it is a commercial structure or government agency, is carried out in accordance with the norms of the current Labor Code. Termination of relations with workers for reasons not specified in the law is not permissible. Today we will try to consider the most common reasons dismissal under an article of the Labor Code of the Russian Federation.

Reasons for dismissal

Under what article can one be fired? All grounds for dismissal can be divided into three large groups:

There are many reasons for dismissal at the initiative of the boss. All of them found their expression in Article 81 of the Labor Code of the Russian Federation. Let's get acquainted with them in detail.

For violations of labor discipline

All violations by a specialist of labor discipline rules can be divided into:

systemic and individual;
not rude or rude in nature.

Systemic failure to perform functions, if the worker has disciplinary action, threatens with dismissal. This reason does not mean a single fact of refusal to fulfill one’s immediate duties, but systemic violations. It is imperative that the employee has already been punished for the violations committed. Verbal reprimands are not taken into account. To prevent failure to fulfill your direct duties, you should thoroughly read your job description. No one local act will not talk about this in as much detail as the job description. It is important to have time to familiarize yourself with its provisions within three working days from the date of the crime to duty. The manager, for his part, must take care of the timely development of instructions for the new employee and familiarize him with it in writing, preferably on each page with a date.

Assumption of gross violation

If for other violations one fact is not enough to fire a person, then for gross violations only one is enough. What do you mean by rude? Why can you be fired?

. Not going to your workplace during the entire working time or more than 4 hours (please note that it is consecutive, and not 4 hours in total during the working day) entails dismissal. If an employee is sick, he should at least call and report his absence from work. It is advisable to do this in advance so that the boss has time to find a replacement. This is most relevant in plants and factories, where there is a stop production process leads to big losses.
. Coming to work drunk or under the influence of psychotropic or narcotic substances also threatens dismissal. In this case, the worker’s workplace is determined in his job description. It is not at all necessary that it should not change. There are professions with a constant change of workplace, an auditor, for example, who is on constant business trips.
Theft. Theft, damage to the company's material assets by an employee, their waste - all these are also reasons for terminating relations with the employer. Important nuance– even conducting an internal audit in in this case is not enough to say goodbye to such an employee. Everything is much more serious. The employee’s guilt is confirmed either by a verdict or a court order.

Loss of trust

There are also reasons for dismissal that contain an anti-corruption component. What does by itself mean?

Failure to provide or misrepresent income. Almost all civil servants today provide information about their own income every year. Moreover, not only in relation to themselves, but also in relation to their wives and children. The submitted certificates contain information about the amount of funds on their bank cards, open accounts, information about apartments, cars, boats, airplanes and garages not only owned, but also in use. Failure to provide proof of all your income or providing distorted information means losing trust. And this is already grounds for subsequent dismissal.
Submitting false documents for employment purposes. We are talking about absolutely any document related to employment: passport, military ID, diploma, license or certificate. When applying for a job in a reputable organization, you need to be prepared for the fact that all copies of submitted papers may be subject to thorough checking. A request can be made to the Information Center about whether the future employee has a criminal record, and to a university - a request about the authenticity of the diploma presented to them. Such verification activities can only be carried out with the written consent of the person in respect of whom they are actually being carried out.
Disclosure of official secrets. Disclosure of any secret: state, medical, official, etc. An employee hired for a job whose nature involves possession of secret information signs a non-disclosure agreement. This also applies to the disclosure of personal data, for which the employee can also be fired.
Violation of safety regulations by a specialist. Violations of labor protection regulations. Such a violation in itself cannot cause dismissal. There must be some serious consequences of this violation: a disaster, harm to other workers, an accident. The harm assessment is carried out by representatives of the occupational safety commission.

Inconsistency between a specialist and his position

Compliance with the employee's qualifications, knowledge, skills and abilities is determined exclusively by certification commissions. By himself, alone, a manager cannot make a decision regarding his subordinate about his unsuitability for official duties. For this purpose, an entire certification commission must be convened.

The commission is created in the organization by order with mandatory familiarization with the signature of the persons included in its composition. As a rule, these are the most trained employees, deputy heads, heads of departments, experienced employees who are able to adequately and objectively assess the abilities of the person being certified. During certification, the employee is asked questions about his work, the answers to which allow him to be given a fair description. Following the results, an open vote takes place. A majority vote renders a verdict on the person being certified - whether he corresponds to the position or not. The basis for the commission is a protocol signed by all participants, and most importantly - by the person being certified as a sign of familiarization with the conclusions. One of the results of such certification may be.

Termination of the company

For this reason, when dismissing a worker, the identity of the worker is not taken into account at all. Everyone is subject to dismissal: employees who are positively characterized, who work honestly for the benefit of the company, as well as those who work carelessly and have not distinguished themselves in any way. better side employees. The basis for terminating the relationship for this reason is the same order for all to liquidate the enterprise. At the same time, it is clear that no other positions are offered to anyone, since, strictly speaking, there is nothing to offer.

Staff reduction

Downsizing happens in all organizations: private firms, state-owned enterprises, factories and factories. The basis for dismissal is the order of the number of work units. At the same time, it precisely indicates which positions are subject to reduction. Important Feature– the worker is notified of the upcoming layoff at least two months in advance. From the point of view of the legislator, this time will be enough for the employee to find a new, suitable job.

The law also defines the circle of persons who have some immunity to remain at work during layoffs. Who can management not fire for this reason:

First of all – pregnant women. If an employee whose position has been reduced brings a certificate of pregnancy, then it will be impossible to fire her. The employer will simply have to offer her a worthy alternative in the form of a similar position or similar type of activity, with a salary not lower than that received.
Those workers who, for various reasons, retain their jobs. For example, those on maternity leave annual leave, a business trip, even a long one or in a different area.
Employees released from their work duties due to ill health. The basis is the certificates of temporary incapacity for work presented to the employer;
Employees who are raising children under three years of age.
Employees raising children alone. The age of the children of such mothers is up to 14 years, and if the child is disabled, then up to 18 years.

Representatives of trade union organizations enjoy a special position. They can be reduced only with the permission of the trade union leadership.

Sometimes in a work team it can develop difficult situation when one position out of two is laid off staffing units. Let's say one of the two driver positions must be reduced. In this case, the manager must leave at work the driver whose qualifications, rank and labor efficiency are higher. But what if the drivers are equal in terms of professionalism? In this case, preference is given to the one who has a larger number of dependents compared to the other, or, for example, to the one who received an occupational injury in this company during the period of work.

Change of company owner

If the property of a company is transferred by right to a new owner, then this new owner legally has the right to change his director, deputies, and chief accountant. To other categories of workers this basis has no relation.

At your own request

Do not forget that the employee himself has the right to terminate his employment relationship with his employer at any time - at his own request. And such a reason is also provided as a basis for dismissal under the article. To do this, the employee submits a statement of his intention to leave to the director of the company. Most often, he is assigned to work for a period of 2 weeks. But, at the discretion of the manager or by mutual agreement with the employee, dismissal can be made without working off. On the appointed day - the day of dismissal - a full payment is made in relation to the employee and issued employment history.

Due to death

Death is a circumstance beyond the control of the parties labor relations. Of course, in the event of the death of an employee, the employment relationship with him is terminated. In this case, the work book is issued to a loved one deceased. In addition, the family of the deceased employee receives all due compensation, including wages for the time worked by the deceased.

Sample procedure for registering dismissal

What does the dismissal procedure under the article include? Any procedure is a certain sequence of actions. Where should you start, first of all?

Witnessing a fact

This action must be carried out mainly if the specialist commits any violations. For example, a person did not show up for work. To testify to this fact, it is necessary to draw up an act, not about simple absence, but about absence for exactly 4 hours in a row. The key word is consecutive. An employee showed up at his workplace drunk. An act should also be drawn up about this. Any act is drawn up in the presence of at least three members, and they sign it. If you do not promptly record any violations by an employee, then dismissing him in the future will be problematic.

Issuing a warning

You should not immediately take decisive action by announcing dismissal to the offender. In this way, the entire human resources potential of the company can be lost. To begin with, it is enough to warn by making a remark or issuing a verbal reprimand. We can finally have a conversation. And if everything Taken measures preventive measures did not bring the desired result, and the employee again continues to commit previous violations, then the only correct decision is dismissal.

Employee familiarization

An employee who has committed an offense at work must know exactly what he committed. So, when drawing up an act in relation to him, he must be familiarized with it. When declaring a reprimand, it is necessary to familiarize the employee with the order. When announcing a verbal reprimand, it is also necessary to familiarize the employee with the minutes of the meeting at which public reprimand is issued to the offender. In general, the employee who committed the violation is familiarized with any punitive document against signature.

Explanatory

For all cases of violation of discipline in the team, an explanation must be taken from the guilty employee. The leader must know the reasons for what was done. The explanation is always given in writing. It is advisable to initially indicate questions on the form, to which the employee subsequently gives detailed answers.

Order of dismissal

After everything preventive measures and the warnings have expired, the reasons and all the circumstances of the violations committed by the specialist have been fully identified, and a dismissal order is drawn up. The order is drawn up by a HR employee. The order states:

FULL NAME. dismissed;
reasons for termination of relations with reference to the article of the Labor Code of the Russian Federation. A similar entry is made in the labor record;
the amount of cash payments due;
date of termination of the contract. This date does not always coincide with the day the order was issued. The order may be issued earlier than the date of dismissal, but in no case later.

Compensation and benefits

All amounts due to the dismissed person are paid to him on the day of dismissal. If he did not apply for them on that day, then they are paid on the day following the day of his application. Payments include:

compensation for unused rest time during the year of dismissal;
bonus for conscientious performance of duties. As a rule, these are two salaries.

The employer is liable for violation of payment deadlines.

Is it possible to appeal dismissal under the article?

Of course you can. If an employee considers the dismissal to be illegal, he has the right to challenge it in court. The main thing is not to miss the deadline. The law sets a one-month period for appealing a dismissal order. Exceptional cases of extension of this period are illness, business trip, or other circumstances that deprive a person of the opportunity to go to court for restoration of his violated labor rights.

In conclusion, I would like to note that under no circumstances is it possible to fire a person who is on vacation or on sick leave. The only exceptions are cases of liquidation of the company. Remember that it is not enough to fulfill your duties honestly. You also need to periodically read your job description, the provisions of the collective agreement, if the company has one, and also know the provisions of labor legislation.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and others regulatory documents to regulatory authorities.

How can I fire a conflicting employee? My employee is constantly rude to me and my colleagues, arrives from her lunch break at least 15 minutes late every day, constantly demands days at her own expense, and, to put it mildly, her work doesn’t matter. I heard that firing an employee, even one who is lazy and conflict-prone, is not so easy. What do i do? I suggested that she write statements of her own free will, but she also decided to blackmail me: she said that she would go to court and be reinstated to work without any problems. What is the actual process of firing an ineffective, unwilling employee?

Lawyer's answer

Hello!

Unfortunately, you are faced with a difficult but very common situation. Indeed, dismissing an unwanted employee is not as easy as it might seem at first glance. It seems that everything is obvious: one party to the employment contract does not fulfill its labor duties, and the second is not ready to tolerate this. But the courts very often come to the defense of “offended”, unfairly dismissed employees. Therefore, the dismissal procedure must be carried out competently, taking into account all necessary procedures and without violations of the law.

In your case, there are two options to solve the problem. The first option is to terminate the employment contract with the conflicting employee by agreement of the parties, the second option is to terminate the contract on your initiative. Let's look at the pros and cons of each option.

Termination of an employment contract by agreement of the parties is the most convenient and peaceful way to part with an unwanted employee. This document is a kind of additional agreement to the contract. It specifies the period from which the contract is considered terminated, and this agreement can provide for the amount of compensation upon dismissal of an employee. The advantage of this agreement: having signed it, the employee will not be able to unilaterally terminate such an agreement. It is also possible that the proposed amount of compensation will seem to the employee a significant incentive to part with you without conflict.

The second, more complex, option for separation is termination of the employment contract at the initiative of the employer. The grounds for such termination of labor relations are provided for in Art. 81 of the Labor Code of the Russian Federation. 3 reasons are most acceptable for you: a) reduction in the number or staff of an organization or individual entrepreneur; b) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results; c) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction.

Let's look at each of the above reasons in more detail:

Reduction of the number or staff of employees of an organization, individual entrepreneur

Dismissal of an unwanted employee due to staff reduction is a lengthy, labor-intensive and costly procedure. The employer needs to consistently and clearly carry out the following actions:

1. Make the necessary changes to the staffing table;

2. Warn the employee about the staff reduction personally against signature no later than two months before dismissal;

3. Offer the employee all vacant positions in this organization for which he can be accepted, taking into account his qualifications and health status;

4. Pay the employee severance pay in accordance with Art. 178 Labor Code of the Russian Federation.

When laying off workers, employers very often violate the dismissal procedure, and that is why, with competent legal assistance, laid-off employees can be reinstated to work without any problems. Also, the courts have no problem identifying “imaginary layoffs” aimed at dismissing only a specific, unwanted employee. Therefore, before laying off a poorly performing employee, draw up detailed algorithm action and be patient and persevering.

Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results

At the same time, a mandatory condition for such dismissal is confirmation of insufficient qualifications by the results of the certification. Based on the certification sheet and the decision of the certification commission, the head of the organization issues an order indicating what activities need to be carried out based on the certification results. This order also contains information about which employees have not passed certification and should be dismissed on this basis.

Dismissal of such employees is permitted only if it is impossible to transfer them with written consent to another job available to the employer (the employee’s qualifications and health status are taken into account). The employer must offer the employee all vacancies available in the given area that meet the specified requirements.

Carrying out certification is not as simple a procedure as it seems at first glance. Employers make many mistakes when conducting them, and the courts then reinstate employees who were dismissed due to inadequacy for the position held. You need to prepare very well for certification, appoint someone responsible for its implementation, and study regulations. Certification should be carried out throughout the Company, and not just for a specific, conflicting employee.

Repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction

For this reason, it is also very difficult to fire an unwanted employee. The employer makes many mistakes, such as: several penalties were applied for one offense; the employee’s explanations have not been received or an act of refusal to give explanations has not been drawn up; the employee’s guilt has not been proven; the offense itself is not recorded; the deadline for applying a penalty has been missed; the severity of the punishment is not comparable to the offense (being 15 minutes late should not be a reason for dismissal). The main mistake of the employer: he forgets to record misconduct and apply disciplinary sanctions for them.

How to fire an employee is up to you. Start with negotiations: perhaps the conflict will be resolved easier and faster than you think.

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

At your own request

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

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

Dismissal at the request of management

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

1. Complete liquidation of an enterprise or individual entrepreneur.

2. Reduction of staff or number of employees.

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

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

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

6. One-time gross violation of duties:

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

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

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

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

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

11. Providing false documents when applying for a job.

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

Liquidation of an organization or staff reduction

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

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

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

You are not suitable for us

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

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

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

Violation of labor discipline

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

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

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

How to fire an employee for absenteeism?

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

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

Appearing drunk

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

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

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

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

Dismissal while on sick leave or vacation

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

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

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

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

Other reasons for dismissal

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

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

Special grounds

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

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

Dismissal of unwanted employees

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

Calculations when leaving work

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