General procedure registration of termination of an employment contract is regulated. This article describes an algorithm of actions that must be followed.

Termination of an employment contract is formalized by order (instruction) of the employer. Commonly used unified form which has been approved.

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

By general rules The day of termination of the employment contract is always the last day of work of the employee, with the exception of cases when the employee did not actually work, but retained his place of work.

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

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

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

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

Grounds for dismissing an employee

1. Dismissal during the probationary period

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

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

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

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

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

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

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

2. Dismissal at your own request

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

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

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

Scroll good reasons- the grounds for dismissal on the day of filing the application may be enshrined in the internal labor regulations of the organization or in the collective agreement.

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

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

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

How to prepare documents?

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

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

3. Dismissal by agreement of the parties

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

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

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

4. Dismissal due to expiration of the employment contract

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

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

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

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

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

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

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

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

7. Dismissal of a long-term absent employee

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

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

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

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

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

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Situations vary. The new top, for whom headhunters fought so hard, cannot cope with its responsibilities or does not suit the management. An old-timer of the company, who has been on the staff for several years, has become a drone and openly neglects his responsibilities. or leaves for meetings with a client and returns with a new manicure. And the programmer suddenly “fell ill” and returned from sick leave tanned.

We are talking about cases where employees know that it would be better to leave, but they take advantage of the fact that the Labor Code has made the official dismissal process quite difficult for the employer. But HR specialists and employers come to the aid of loopholes that are still in the code.

Expensive mistake

Let us say right away that asking or forcing an employee to sign a statement of his own free will is an effective, but absolutely illegal option. Using it is more expensive for yourself. Because even after signing such a statement, the employee can go to the labor inspectorate and sue the company for:

• compensation for moral damage,
• compensation for forced downtime (based on the average employee salary),
• achieve reinstatement in the workplace.

And history knows many examples when an employee won in court.
The company will also have to pay an administrative fine for violating labor laws - up to 50,000 rubles.

Fire an unwanted employee? Legally!

There is no need to invent or contrive! The Labor Code already spells out legal methods of dismissal at the initiative of the employer. They should be used if an employee works dishonestly.

• By mutual agreement

Article 78 of the Labor Code of the Russian Federation consists of just one sentence: “An employment contract may be terminated at any time by agreement of the parties to the employment contract,” and gives huge space to the employer.

This article is the best way for an employer to leave and is suitable if there are no official grounds for dismissal, but there is a reason. This is what is discussed with the employee one-on-one.

However, the employee usually expects compensation for forced dismissal or at least long paid leave. Therefore, the employer needs to prepare for additional material expenses. But by documenting the dismissal by agreement of the parties, the employer minimizes the risk that the employee will go to court.

• He refused himself

Article 74 of the Labor Code of the Russian Federation provides that the employer can change the work schedule and working conditions (for example, introduce piecework wages or transfer production to a 24-hour schedule). Also, the employer can change the location of the company (move from the center to the outskirts) or change the owner, or carry out a reorganization.

The employer’s task is to notify employees about the reasons and changes in a timely manner, namely in writing and no later than two months in advance. And employees can either agree to the changes or quit.

• You are not on the list

You cannot reduce staff by a specific unit without explanations and alternatives. The employer must offer the employee a list of other vacancies and not just any (from manager to couriers or cleaners), but corresponding to his competencies. The employee refused - they documented this and carried out the layoff.

• Unsuitable for professional use

Inconsistency with the position (Article 81, paragraph 3) is another loophole for the employer.

When hired, each employee must sign job description. But the employer has the right to change it over time by warning the employee 2 months in advance. For example, introduce individual work criteria: processing a certain number of documents, fulfilling a sales plan, etc. In an additional agreement to the employment contract, state on the basis of what conditions the employee’s performance is considered unfulfilled, and then fire.

• Didn't pass the certification

Another way to prove an employee’s incompetence is to conduct. But for the employer this is an extreme measure due to labor costs and high cost.

Certification is carried out not only for the unwanted employee, but also for others in a similar position. It is necessary to assemble a commission of people who have a professional understanding of the work of the employees subject to certification. Poor results - the employer has the right to fire an employee, but only if he refuses another vacancy in the company that matches his qualifications.

• Absenteeism and tardiness

One absenteeism by an employee (from 4 hours in a row or during the entire working day) is enough to dismiss him, as this refers to a gross violation by the employee labor responsibilities(Article 81, paragraph 6).

It is more difficult to fire an employee who is constantly late, but it is also possible. You cannot be fired for a single lateness; you will need to collect several explanatory notes about the lateness and impose a disciplinary sanction. At the same time, the work schedule must be specified in the internal labor regulations and in the employment contract.

• Intoxication

One thing is also sufficient for dismissal - alcohol, drugs, another toxic (Article 81, paragraph 6). But the employer will have to call an ambulance to the office before the end of the working day in order to record the employee’s intoxication and have the results of a medical examination in hand.

In addition to the law, there are also rules that the company determines itself. For example, what can you wear to work (); Is it possible to smoke and if so, where? Such rules should be clearly described in one document called “Internal Labor Regulations”. All employees sign up for it when they are hired. If the employee is notified, but violates the rules, then he can be fired.

• Failure to fulfill duties

Clause 5 of Article 81 of the Labor Code of the Russian Federation allows for the dismissal of an employee if he repeatedly fails to fulfill his duties.

Here it is worth mentioning a method that is unethical, but is used by some employers. To fire an unwanted employee, the employer can overwhelm him with tasks that cannot be completed within the specified time, and then ask him to write an explanatory note about the reasons for non-fulfillment.

• Disclosure of secrets

If an employee becomes aware of a secret protected by law (state, commercial, official and other), including the disclosure of personal data of another employee, he can be fired (Article 81, paragraph 6). At the same time, even the phone number of another employee may fall under personal data.

But don’t forget that firing an employee is still not easy. And each of the above loopholes has its own nuances. And dismissal “under article” is an extreme measure, and it should be used when peaceful methods have not helped.

Expert commentary

HR Director of Beta Press Group of Companies

As practice shows, dismissing an employee is far from simple and not as transparent as it seems at first glance. The Labor Code of the Russian Federation does not provide many options, and all of them are aimed at protecting the employee. I will comment on the options described by the author based on practice.

• By mutual agreement– this mutual agreement is difficult to achieve, because if an employee has a conflict and does not want to leave, he will ask for considerable compensation, or simply does not want to lose workplace. The method is available if you have the budget for it.
• He refused himself– for the sake of firing one careless employee, this is too labor-intensive an option. As practice shows, in reality, changes made (moving, changing work schedules, etc.) lead to the opposite problem, namely, employees who worked stably and were completely satisfied with the employer scatter.
• You are not on the list– a rather complicated option, because if we are talking about a negligent employee, then we obviously want to replace him, which is impossible in this option. The second point is that, as a rule, the employer is not ready to shell out for compensation, especially for those whom they want to get rid of.
• Unsuitable for professional use– a complex system that requires constant recording of indicators that the employee regularly gets acquainted with. In the event of a sudden change in requirements, as well as dismissal in a short period of time (as in the example of 2 months), this may become a “red rag” for the court.
• Didn't pass the certification– legal and effective way, which allows you to get a lot of additional advantages (diagnosis of the level of knowledge of employees, recommendations for training, recommendations for promotion, changes in salary levels, etc.). If carried out by the HR Department, the costs are minimal. There are risks of legal appeals, but if deadlines are met and a complete package of documents is available, the risks are minimal.
• Absenteeism and tardiness- It’s quite difficult to fire, but it’s possible. You need to remember about pitfalls in the form of sudden sick leave, etc.
• Intoxication– I’ll add that there are certified breathalyzers that can detect alcohol intoxication, so for some companies it’s cheaper to purchase them. Another option is to offer to resign yourself or go for an examination (as a rule, in such cases, the employee leaves on his own).
• Failure to comply with internal labor regulations- it’s not so simple here, and this kind of dismissal will require a lot of acts, explanatory notes, etc. It will be quite difficult to prove in court that an employee came to work wearing a blouse that is too transparent.
• Failure to fulfill duties– a difficult item to fulfill, since tasks must be given in a fixed form and contain certain performance criteria. The employee must have the resources necessary to complete the task, etc. Situations can be extremely controversial.
• Disclosure of secrets- a difficult reason to prove for dismissal, but business is business, and occasionally such situations do occur. The main thing is that the reason for dismissal should not be the employee’s phone number, since such little things clearly qualify as forced dismissal.

Despite the apparent variety of dismissal methods, most employers strive to agree on voluntary dismissal, since for the employee this is a “clean” story instead of an article, and the employer does not need to collect a package of documents in order to confirm the article in the event of a trial. Proving that an employer forced you to resign is just as difficult as the opposite. But, of course, you should not resort to this method when there is an open violation of an employee’s rights (

How to fire an employee is a question that is always relevant for the HR department, just like hiring new personnel, however, this matter also has its own nuances. The most serious issue is the issue of painless termination of an employment contract for both parties. Unfortunately, this does not always work out - a person can sue the company or go to competitors and deliberately begin to harm your organization.

How employees are fired: reasons and options

According to the law, there are three types of dismissal:

1. at the initiative of the employer;
2. at the initiative of the employee;
3. by agreement of the parties.

The first type is associated with the unilateral dismissal of an employee for failure to comply with certain company rules. This may include permanent absenteeism. Or such a procedure is carried out in the event of liquidation of an enterprise or reduction of staff.

If we talk about the second option, in this case the employee needs to write a letter of resignation of his own free will. Moreover, the employer cannot refuse to satisfy it.

The third type is suitable if the manager is dissatisfied with the hired employee, but he refuses to leave the company, without giving specific reasons for dismissal.

Option 1.Dismissal at your own request

This type is the most commonly used basis for terminating activities in a particular company. There are only two steps here:

1. The employee submits a letter of resignation indicating the date.
2. The manager must satisfy this request.

Difficulties, if you need to dismiss an employee at your own request, are very rare. Perhaps the only one is the need for work, when within two weeks from the date of filing the application a person continues to perform his functions in the company.

Some groups of employees are given a shorter period of notice to quit. It is important to always remember this, since the unexpected dismissal of such an employee cannot serve as an excuse for the company when it does not have time to calculate and return the work book to the dismissed employee.

Option 2.Dismissal by agreement of the parties

Here, termination of an employment contract takes a minimum of time and is simple. Which employees are fired this way? The law allows termination of an employment contract by agreement of the parties, even with those who are on vacation or sick leave. To do this, the employee submits an application to the manager, and if the employer takes the initiative, he sends the subordinate a proposal to terminate the contract. When the parties have agreed, an agreement is prepared, a dismissal order is issued, and the work book records under what article the employee was fired, that is, clause 1 of Art. 77 of the Labor Code of the Russian Federation.

Option 3.Dismissal at the initiative of the employer

The reasons in this case may be different. So, this could be an attempt by management to reduce the company’s costs, staff reduction, liquidation of the company, a person’s inadequacy for the position held, or the sale of the company to a new owner. However, most often this option is used in cases of violation of discipline: when there is absenteeism, an employee comes to the company in a drunken state, appears in the office later than expected, etc. Since it is now clear why you can fire an employee, let’s talk about how to do this without mistakes.

Option 4. Dismissal due to violation labor discipline

Before you decide to punish an employee under this clause, check whether his employment contract clearly states the mode, place of work, etc. It may seem incredible, but a number of companies do not include the place of work in the contract, because their activities, that is, their personnel , requires presence at several sites. And they cannot be included in the contract already upon hiring. How to fire an employee for absenteeism if his contract is drawn up this way? This is impossible, because the papers do not record a specific place in which a person must be. But if the conditions are defined, if they are not met, the employer can impose disciplinary punishment on the subordinate. Of course, you can fire a person for just one violation, but then it must be quite serious.

The reason for such a tough decision by the manager may be showing up at work drunk (or under the influence of drugs), theft, embezzlement, damage (accidental/intentional) to someone else's property, disclosure of commercial or state secrets. You can also be fired for absenteeism or absence from work for four hours. But before doing this, we advise you to make sure that there is no certificate of incapacity for work. For minor violations, such as being late, disciplinary action is permitted. In this situation, the employer does the following:

• finds a misdemeanor(this is done within the established time frame in accordance with Article 193 of the Labor Code of the Russian Federation);
• records this violation;
• receives from the employee a handwritten statement of the reasons for the misconduct- the employee must provide explanatory note on this fact;
• issues an order to impose disciplinary liability(announcement of warning, remark, reprimand);
• brings this information to the attention of the employee.

If discipline is repeatedly violated, a severe reprimand is usually issued, accompanied by deprivation of bonuses, and only after the third offense can the manager decide how to fire the employee.

Option 5. Dismissal due to staff reduction

The law clearly establishes the procedure and rules for terminating an employment contract in such a situation. So, if one of the equivalent positions is cut, you should retain a more qualified employee (provided that the people working here have equal social status). With the same level of qualifications, but different life circumstances, it is prohibited to fire: single mothers, the sole breadwinner, a person injured at work, disabled people, veterans of the Second World War, labor and combat, women with children under 3 years of age, pregnant women, participants in the resolution of collective disputes, employees undergoing on-the-job training. Remember, if a person is fired due to staff reduction, he must be notified two months in advance and, if possible, offered a different post. If he agrees, it is issued internal transfer, if not, it is necessary to obtain a statement from him with a request to relieve him of his position due to staff reduction. After which the employee leaves the company, having received all the necessary payments to the dismissed employee.

Option 6. Dismissal upon liquidation of the enterprise

Obviously, if the company ceases to exist, all employees must receive a paycheck. How to properly fire employees in such a situation? It is necessary to notify all personnel in writing two months in advance in accordance with Art. 180 (part 2) of the Labor Code of the Russian Federation. This rule applies to main employees and part-time workers. Each of your subordinates should receive the notification, and attach the second copy with the signature of the person being dismissed to the order. After two months, the administration of the organization prepares an order for the dismissal of personnel in the T-8 form, pays severance pay, compensation for unused vacation, salary for hours worked. The calculation is carried out on the last working day, an entry is made in the work book. We also note that people whose employment contract was terminated due to the liquidation of the company have the right to expect payment of average monthly earnings while searching for a new job, but for a maximum of three months. This rule does not affect part-time workers, seasonal staff, as well as those operating under a fixed-term employment contract (for a period of up to two months).

Option 7. Inconsistency with the position held

This issue can only be resolved by the organization’s certification commission. Let's imagine that an assessment was carried out to check the professional suitability and qualifications of staff, and one of the employees received a bad assessment. Then he may be offered to take a different position. If the specialist does not agree, the manager has the opportunity to refuse his services, since the employee is not suitable for the position. The manager has a fixed period of time for this after the certification, which is 2 months. Further, the order and work book include the wording “due to inadequacy of the position held and refusal to transfer to another position.”

When can you fire an employee?

It will not be possible to fire an employee while he is on leave, whatever it may be: annual paid, childcare, educational or without pay. Violation of this norm is permissible only during the liquidation of the company. In addition, you cannot fire a person who is on sick leave. This applies to key staff, part-time workers and even homeworkers.

There are also some groups of people whose dismissal, in principle, cannot be initiated by the employer, or it will be quite difficult.

How to properly fire an employee: procedure

If you want to avoid unpleasant consequences, it is important to understand how to competently fire an employee in the legal field. A preliminary consultation with a lawyer will help you here; it will be especially useful when your case is related to individual characteristics. It is very important to strictly follow the sequence of actions:

1. Determining the legal grounds for releasing a person from office. Specific reasons will do, or you can fire an employee at your own request.
2. A personal conversation with the employee or a written warning about termination of the contract.
3. Collection of necessary documents(including confirming the legitimacy of the action).
4. Drawing up a dismissal order in form T-8 or T-8a.

5. Entry into the work book.

It is important to use correct wording in the work book. Therefore, we advise you to create a cheat sheet to avoid corrections in the document.

1. Payment of compensation.

Compensation to a dismissed employee is mandatory and is issued regardless of the article of the Labor Code under which the employee leaves. This also applies to dismissal from a position for absenteeism, ignoring production duties and other actions containing elements of guilt. Compensation is not due only to persons hired under civil contracts.

This payment is issued for those days of vacation that the employee did not have time to take off. Also, with the written consent of the person, he may be granted release from work for all unused rest days, replacing material compensation for the dismissed employee. However, when the person leaving in advance was already on vacation, the CCW is withheld in favor of the enterprise.

Expert opinion

How to reduce compensation upon dismissal

Elena Kozhemyakina,

Managing partner of BLS company, Moscow

I think many have heard about “golden parachutes,” that is, severance pay, the amount of which seriously exceeds the minimum guaranteed by the state. Only specialists holding certain positions (general, commercial, financial director, development or advertising director, Chief Accountant, etc.). The amount of the compensation payment is initially fixed in the employment contract, in other words, it is quite difficult to challenge it. The task of the personnel officer preparing the contract is to avoid inconsistency with local regulations and other company documents.

How can you reduce the amount of payments to a dismissed employee? Of course, top managers who have spent a lot of time on the company have the moral right to demand serious compensation. They can ask for an amount equal to two years' salary. But a manager rarely agrees to spend such significant funds. Therefore, when going to negotiations and thinking about how to fire an employee, I advise you to prepare properly. If you can’t reach an agreement, there is always a second option for the development of events, familiarize your interlocutor with it. This is dismissal due to staff reduction, for failure to perform duties, or for committing guilty actions, if the latter have been identified.

Any negotiations will be successful provided that the meeting is prepared and carried out competently. For this reason, the head of the company should not delegate the discussion of the terms of dismissal to a human resources specialist. I advise you to beware of classic mistakes: do not make accusations without reasoning, do not put pressure, avoid quick emotional conclusions. Remember, if the interlocutors do not want to listen and hear each other, negotiations cannot lead to success.

How to fire an employee and avoid problems with the law

Termination of a contract by decision of the employer is legal and justified if the following rules are met:

1. The Labor Code does indeed fix the chosen conditions for dismissal;
2. all necessary procedures are strictly followed: obtaining explanations, delivering notifications, agreeing with trade union body, etc.

The absence or failure to comply with one of these provisions will be the reason for the recognition of the illegality of dismissal if a dispute arises, and will even be the basis for the employee to continue working in this company.

If the staff is being reduced or the company is being liquidated, it is required to announce the planned dismissal at least two months in advance, since it is important to competently dismiss the employee. When delivering the notice, it is necessary to obtain the signature of the employee; if the latter is absent from work for valid reasons, the warning is sent by registered mail to the place of residence.

However, in a situation where an employee refuses to study this document, its text is read aloud and an act of refusal to familiarize is drawn up. Next, it is certified by the signatures of those who notified the specialist.

If low qualifications do not allow a person to work in his position, dismissal is permissible when this fact is established by the certification commission, and solely taking into account the opinion of the trade union organization.

Repeated failure to fulfill official duties makes it possible to dismiss an employee at the initiative of the employer, but this requires documented evidence of previously reported comments or reprimands to the employee. That is, it is required to provide memos, explanatory notes, complaints, etc.

Such dismissal relates to disciplinary sanctions, and therefore can occur in accordance with the standards fixed by the Labor Code of the Russian Federation (Articles 192 and 193). That is, the severity of the offense is considered, and the culprit provides an explanation in writing within up to two working days.

The decision on how to fire an employee cannot be made before the expiration of the period allocated for the person to present his version of what happened. Refusal to provide an explanation, as well as its absence without reason, must be documented in an act.

Please note that it is impossible to apply a disciplinary sanction provided that more than a month has passed since the discovery of the offense, or the violation was committed more than six months ago.

If gross deviation from official duties, such as absenteeism, disclosure of official secrets, violation of labor safety rules, being intoxicated at the workplace, was committed once, dismissal cannot be carried out without taking into account the procedures required by the Labor Code of the Russian Federation (Articles 192 and 193 ).

If, in your opinion as a manager, there has been theft of other people's property, falsification of the documents provided, you need to obtain judgment or a sentence or resolution of an administrative body that established these circumstances. Since you do not have the right to fire an employee after independently identifying such a fact.

That is, for a manager who has decided to terminate a contract with a negligent employee, it is important to document the established violation, assess the severity of the act, so that the punishment in the form of dismissal from office corresponds to it, and the deadlines must be met.

The state labor inspector can verify the legality of dismissal at the request of the employee himself, at the request of the prosecutor, or during a routine examination. In addition, removal from office is controlled by the prosecutor under prosecutorial supervision and by the court in the case of a civil case regarding a claim challenging this fact.

If it is revealed that a person’s deprivation of work was carried out illegally, he will be reinstated, and the company will also have to pay for the time of absenteeism that did not occur through the fault of the employee. The court may award compensation for moral damage in favor of the dismissed person.

It is also important to understand that the Code of the Russian Federation on Administrative Offenses states that detected inconsistencies with the rules may become a reason for imposing penalties on the manager and the company.

The director is subject to a fine of 1–5 thousand rubles, and the company – 30–50 thousand rubles. If violations are repeatedly detected, the manager, in addition to the application of such sanctions, may be deprived of the right to hold office for a period of one to three years.

Expert opinion

Consequences of dismissal without reason

Alexander Zhbankov,

lawyer, European Law Bureau

If, after you decide to dismiss an employee, all the procedures recorded in the Labor Code of the Russian Federation were not followed, the citizen has the right to apply to the court and, having won, will be reinstated in his position. That is, it is very important for the employer, when refusing to continue cooperation with a specialist, to prepare evidence of violation of labor duties.

When a dismissed person decides to challenge the sanctions imposed on him in court, the manager must prove the fact of committing a disciplinary offense, while justifying the chosen type of penalty. It is important for the court to make sure that the employer took into account the severity of the subordinate’s guilt and its circumstances, as well as the previously noted behavior and the person’s attitude towards his own activities. If the court finds that a violation actually occurred, but the dismissal was carried out without taking into account these provisions, the claim for reinstatement may be satisfied.

If you have a conflict with a person whom you want to fire, prepare evidence in advance that you are right, do not wait to go to court. Collect all reports office notes to substantiate evidence of inappropriate behavior by the employee.

According to Art. 237 of the Labor Code of the Russian Federation moral damage caused illegal actions, due to the inaction of the manager, must be compensated to the employee in financial equivalent in amounts determined by agreement of the parties to the TD. If a dispute arises, the fact of causing moral damage and the amount of compensation for it are determined by the court, regardless of the property damage being compensated.

“Guilty” grounds for termination of an employment contract at the initiative of the employer are provided for in Art. 81 of the Labor Code of the Russian Federation.

How to fire an employee legally: examples of judicial practice

Example 1.Dismissal due to unsatisfactory results of the probationary period

State Labor Inspectorate in Krasnodar region carried out an investigation into violation of the procedure for dismissing a specialist after a probationary period from Stroy-Investment LLC (Article 71 of the Labor Code of the Russian Federation). In accordance with the results of the audit, the employment contract was terminated on October 28, 2011, but the plaintiff was not notified of this in in writing no later than 3 days in advance. Such a document was prepared directly on the day of termination of the contract. It turns out that the employer did not want to comply with the deadlines for the dismissal procedure specified in the legislation (Article 71 of the Labor Code of the Russian Federation). It is also important that this warning was marked that it was not given to the employee, since the latter was absent from the workplace from 10/29/2011 to 11/01/2011. But as the documents showed, it was possible to fire the employee even before this deadline, on October 28, 2011. In other words, as of October 29, 2011, he was no longer one of the company’s personnel. Also, the employer did not take the exhaustive measures necessary to notify the plaintiff of the termination of the TD, that is, he did not send a warning about this fact by registered mail with notification or by telegram. The above violations made it possible to cancel the dismissal order. In addition, the company must reimburse the employee for the wages he lost due to his illegal deprivation of the opportunity to work. The manager was also presented with a mandatory order to eliminate the violations.

Example 2. Dismissal due to the employee’s refusal to continue activities due to a change in the terms of the employment contract determined by the parties

The Volzhsky District Court reinstated the plaintiff in the position of accountant at LLC “222” after she was dismissed under clause 7 of part 1 of art. 77 of the Labor Code of the Russian Federation. The court found that the specialist had been performing the duties of an accountant in the organization since August 29, 2006, with a salary of 15 thousand rubles per month and a monthly bonus of 3 thousand rubles. On March 20, 2008, she was notified of a salary reduction to 10 thousand rubles. due to changes in organizational working conditions and a reduction in the volume of work. However, the employer was unable to provide evidence capable of confirming that the new circumstances were caused by changes in organizational and technological working conditions. The latter include changes in technology and production technology, structural reorganization of the enterprise, as well as other reasons. Let us note that, among other things, while the employer tried to dismiss the employee without his desire, he did not offer the specialist another job in writing, that is, he violated Part 3 of Art. 74 of the Labor Code of the Russian Federation.

Example 3.Reduction in number or staff of employees

The Sovetsky District Court reinstated the plaintiff at work, since during her dismissal the employer did not comply with the requirements of Part 6 of Art. 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer (except for the liquidation of the company) during the period of his temporary incapacity for work and while on vacation. The court found that the laboratory where the plaintiff worked was closed by order of the rector. The employee submitted a written request to be given unused vacation days with subsequent dismissal in accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation. She was given unused vacation days from November 3, 2007 to January 16, 2008, with further dismissal due to staff reduction, but she was dismissed from work by order of November 5, 2008 under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation from January 16, 2008. In addition, it was established that the plaintiff was ill during her vacation (from 01/09/2008 to 01/24/2008). On January 13, 2008, she informed her manager about her incapacity for work and the right to extend her leave in accordance with Art. 124 of the Labor Code of the Russian Federation. However, this was not done, and the employee was illegally dismissed under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation during vacation and temporary disability, that is, in violation of Part 6 of Art. 81 of the Labor Code of the Russian Federation.

Example 4.Dismissal due to non-compliance

The employee filed a lawsuit against the Municipal Unitary Enterprise for Housing and Communal Services for reinstatement at work and payment for absenteeism, which was not his fault. The employee held the position of electrician and was dismissed under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation for non-compliance with the position held. The reason for this step by the employer was the lack of documents allowing this person to hold the post of electrician on duty.

The court found that before being hired, the employee was tested for knowledge of the Labor Code of the Russian Federation, PB of electrical installations, traffic rules, PPB 01-03, POTRRM, as a result of which he was assigned Group III in electrical safety and was issued a document confirming this. The employer neglected the dismissal procedure: did not create a certification commission, did not conduct certification. As a result, he did not have in his hands confirmation issued by the commission that the plaintiff was not suitable for the position held. The employer did not offer the citizen in writing the vacancies available at this enterprise, since he decided to simply fire the employee, although this in this case is considered a mandatory condition. The court came to the conclusion that the dismissal from office was illegal, and the claims were fully satisfied (decision of the Uletovsky District Court of the Trans-Baikal Territory dated April 19, 2011 in case No. 2-79/2011).

Example 5.Repeated failure to fulfill duties

The Sovetsky District Court declared the dismissal of an employee illegal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation. It was established that management reprimanded him for violating production discipline. But the plaintiff challenged the reprimand order, and the magistrate ruled it illegal. However, the plaintiff was fired due to the employee’s repeated failure to fulfill his job duties without good reason. Since the previously applied disciplinary sanction was declared illegal, there was no repetition factor, which means there were no grounds for dismissing the employee under clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation.

Example 6.Termination of relations with the manager

The Samara District Court considered the case regarding the reinstatement of a dismissed employee as a director. The woman challenged her dismissal from her position, the reason for which was ineffective work on the basis of clause 13 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. It was found that the parties signed an employment contract for a period of one year, which provided for the possibility of early termination under Art. 81 of the Labor Code of the Russian Federation according to additional reasons dismissal, including failure to comply with certain provisions affecting financial indicators companies. After 54 days of work, the plaintiff was fired. The reason was the act of a comprehensive documentary audit and balance sheet, which became evidence of a deterioration in the financial and other indicators of the enterprise. The court indicated that grounds for dismissal may be considered improper execution terms of the TD during its validity, and not in the previous period. The defendant failed to provide evidence of the employee’s violation of the provisions of the contract during the designated period, and therefore she was reinstated in her previous position. Also, her salary for the period of forced absence was collected in her favor.

How to fire an employee without damaging his psyche

Dismissal is an unpleasant matter for both management and the employee. A person who has been asked to leave an enterprise always perceives this as stress, and as a result he experiences negative emotions, even anger and aggression. If, after a company has decided to fire an employee, the employee believes that he was unfairly fired, his actions can lead to serious problems for the company.

A dismissed employee is capable of taking revenge: transferring classified information to other market representatives (customer databases or data on a product that has not yet been released), revealing the financial condition of the company to the tax service, or suing his former manager for unfair dismissal. All these actions will cause difficulties for the company, caused by a damaged reputation, which will take a long time to restore. But let’s say the dismissed specialist worked with finances and passed the information to the relevant authorities, then more serious problems may arise.

Management mistakes during dismissal can affect the rest of the team: people will fear that they may not be treated better. This kind of atmosphere will negatively affect work productivity, motivation will decrease, and there may be a desire to change jobs.

To avoid all these troubles, every manager should use psychological rules layoffs employee. The task of a manager when displacing a subordinate is to carry out this procedure with minimal discomfort for the employee. It is important to reduce stress and other negative emotions. Any manager who tells an employee that he will have to leave the company needs to learn how to use the correct termination procedure so that the person does not become angry and decide to harm the company.

It may seem strange, but men are much more sensitive than women to dismissal and are more prone to subsequent revenge. This is due to the fact that the stronger sex is initially tuned to career, which means that its representatives have greater expectations of social success. Women show themselves to be more flexible in this matter; they adapt more easily to new conditions. Therefore, once you have decided to fire a male employee, it is important to carefully prepare for the conversation and take a more gentle approach.

A manager can give a subordinate certain tasks for a fixed period. If he fails to cope with this work, or only manages part of it, it will be clear to him that this fact may be a reason for dismissal. That is, the employee will be mentally prepared for an unpleasant conversation with management, and the loss of the position itself will no longer be a shock to him.

True, here the reason for the employee’s nervous state may be the fact that the person is constantly waiting for management to demand him in the near future. But leaving the company will turn into an option for getting rid of continuous psychological stress. True, it is difficult to say what reaction awaits you after you decide to fire an employee. For this reason, it is very important that the manager records on paper all the tasks given to the employee and the progress of their implementation. This document will be useful in the event of litigation.

There is another option by which you can prepare a person for dismissal: you need to organize a professional certification and report the receipt of an unsatisfactory assessment.

When suspended from work, it is sufficient important role be given building a conversation with an employee who is fired. Psychology offers a very well-known principle of conversation, which is called “positive - negative - positive”. He is most suitable for such a difficult dialogue. The point here is this: it’s better to start a conversation by talking about positive qualities ah of the interlocutor (and they definitely should be), then it is necessary to explain the reason for his removal from position and, in conclusion, once again emphasize the dignity of the dismissed employee. Now let's discuss this technique in more detail.

First part conversation is positive. Its main goal is to create as many comfortable atmosphere communication free from psychological stress. You must make it clear to your interlocutor that you respect him as an employee and as a person.

Second part conversation is negative. Of course, this stage is more difficult than the others, because this is where you must report the fact of dismissal. All people react to it differently. If a person is emotional, he is capable of losing his temper, starting to scream, accusing you, women may cry.

Many managers make the mistake of suppressing the outburst of emotions of their interlocutor. Let him speak. Do not allow yourself to additionally point out to the employee his lack of professionalism, laziness, non-compliance with the work schedule, or his other mistakes. This will only further ruin the attitude towards you, as a result the person will be ready to start hostilities. But there is no need to console and sympathize either, since it was you who decided to fire the employee. Be polite and calm.

Let's say the interlocutor expressed everything that was boiling over. Now we can return to constructive dialogue. Remember that the emotional outbursts of a fired team member are quite likely to benefit the company. After all, there are usually things that they don’t tell you to your face, they keep silent or try to embellish. In addition, the manager does not always have the opportunity to control all stages of the staff’s work, especially if the company is large. Therefore, listen carefully to what the fired person says, there is a chance that he will point out weak spots in the activities of the organization.

It is important to understand that people who flare up quickly calm down just as quickly. If you let them cry it out, after a few days they will stop thinking about this unpleasant episode and will make further plans.

With calm and restrained employees, everything is much more complicated. They will not raise their voice at you, but will calmly accept your dismissal. It would seem that this makes me happy. But in fact, it only seems to you that the employee does not experience emotions. Internally, he experiences the loss of his job much more strongly. It happens that such people accumulate negativity for a long time and eventually begin to take revenge on the offender. What can you do to avoid facing the negative consequences of this behavior? It is incredibly important for such workers to adapt and get used to new conditions. This means that as soon as you decide to fire an employee, you need to inform him about it, that is, at least two to three weeks in advance. This will give him time to get used to the idea that he will have to leave his job. This step will help you reduce your stress levels and negative consequences after immediate dismissal.

The third part conversation is positive. So, you have informed the specialist about your dismissal, now it is important to allow him to digest the information and come to his senses. But there is no need to end the dialogue on this note. Be sure to point out the strengths of the interlocutor, assure him that his career will definitely be brilliant in the new company. Tell him about the severance pay he is entitled to.

When touching on the topic of reasons for dismissal, talk about external circumstances, and not about the person’s qualities. You can inform us that the company does not currently have better times, so you have to downsize. Or at this stage you need people with other knowledge and skills. But emphasize that your interlocutor is an excellent specialist in his field. There are managers who like a different method. Thinking about how to politely fire an employee, they explain their decision by saying that the person is too good for the company, his knowledge is much more extensive than what is required for this position. The effectiveness of this approach is debatable, but we can say for sure that this way you will be able to stroke the vanity of the fired person.

But what to do if you have nothing to praise your interlocutor for? Use the same “positive – negative – positive” method, but in a slightly different way. When you need to talk about good things, emphasize not professional qualities, but the characteristics of the employee as an individual.

Let's look at a conditional example of such a speech from a leader: “Dear Ivan Ivanovich! You are decent, kind, and I respect you very much as a person. But if you don't improve your efficiency soon, we'll have to say goodbye to you. I give you two weeks to improve your performance. If in such a period you manage to achieve more High Quality, you will continue to work for us. Otherwise you will have to start looking for another place. In the meantime, I will always be happy to help you and advise you if any difficulties arise during the work process. You can contact me at any time."

Now you need to keep your promise and support the employee in certain situations. If after the expiration of the period specified to you, no changes have occurred, then you will do as planned - you can fire the employee.

Expert opinion

What to do if fired employees take revenge on the company

Victor Nechiporenko,

CEO OOO Information Service "Red Telephone", Moscow

• Dissemination of information that spoils the reputation of the company. Through the press and the Internet, laid-off workers can tell you that things are going extremely badly for you. As soon as you see this kind of publication, immediately issue an official refutation (it is better to support it with arguments, facts, and figures).
• Compromise of leading specialists to the CEO. Always check the information you receive from former employees, there is no point in immediately making decisions based on them. For you, a complaint is neither true nor false until you get the exact facts and gather all the information on the issue. The data distributor is waiting for your emotional perception of the news.
• Luring colleagues away to another company. We have encountered such situations. A quitting employee opened a company and took over his former colleagues. The possibility of such transitions negatively affects the climate in the team, working conditions, and the level of interest of specialists in their work. You are required to structure personnel activities in such a way that no area depends on just one person. Useful to have on hand ready plan actions in case half of the team leaves you at once.
• Theft of customer database. You need to develop confidence in customers that not only one employee in the company can help them. I advise you to divide all interaction with the client into three or four successive stages so that they are held accountable for them different people, as this is important if you fire one of your employees. That is, the customer will communicate with several representatives of the company.
• Disclosure of commercial information. Through the fired person, information about orders, suppliers, and company plans can leak to competitors. A number of companies sign agreements under which the employee is responsible for disclosing trade secrets. In fact, it's not the best option, because you will have to prove that it was this person who disclosed the data. The best defense is to limit the amount of information available to each employee.
• Damage to software, introduction of viruses. To protect your software, run anti-virus programs and prepare backup copies of all important files. Information that employees often use in the process of work is best duplicated on paper. Once our company was forced to work without electricity for several days, that is, all computers were turned off. But we were ready: operators answered customer questions using pre-made printouts from the database with a minimum amount of information. Most customers did not notice problems in their work then.
• Hacker attack on the site. Often such an attack is carried out by people responsible for the development and support of the portal. If your site is run by individuals, choose them in such a way that they have increased responsibility to you. Sign an agreement with an organization that will be responsible for any failures.
• Sabotage. There is only one rule here: always be prepared for such behavior as soon as you decide to fire an employee. When our communication line was damaged, we decided to disguise it by drawing additional false lines. The pests did not stop cutting the wires, but they could no longer find the real one.
• Initiation of inspections by relevant authorities. Regulatory authorities usually detect a number of violations. The solution is simple: monitor the accuracy of paperwork and changes in legislation.
• Complaints, lawsuits. A lawyer should deal with these types of problems. It would be great if he can resolve them out of court.

Expert opinion

Rules for constructing a conversation during dismissal

Marina Melia,

General Director of the company "MM-Class", Moscow; professor of psychology

Rule 1.Nothing personal

Firing and hiring are normal processes in professional life. No company provides lifetime employment to its staff, and few people want to devote their entire life to a particular company. Immediately after hiring a person, the manager must imagine how to fire an employee, for example in 2017, with legal and psychological point vision. This mindset will help you approach the conversation about leaving your position more easily.

Rule 2.Doubts away

Before you start a difficult conversation, think carefully about the current situation, make sure that this is justified and the only possible way out. Eliminate doubts and clearly articulate why you made this decision.

Rule 3.Ready for any reaction

Think ahead about the person's first reaction. If your specialist is so able to control his emotions that it is unclear whether he heard you, ask additional questions. Another is capable of showing aggression - remain calm, be emphatically businesslike, do not argue. Another one will wilt or even cry - show sympathy. The latter will try to bargain, demand compensation - provide a clear calculation.

Rule 4.Ready calculation

Even before starting a difficult conversation, decide what compensation you are willing to give. Prepare your arguments for the amount of payments in advance. If an employee sees how the amount is formed, and the manager can justify it, no one will bargain.

Rule 5.Right moment

Set aside a time in your schedule when no one will disturb you, since it is important for you to fire an employee as painlessly as possible. Performing this procedure on the go or between your conversations on the phone, with incoming colleagues, etc. can really hurt the former employee.

Rule 6.Conversation plan

The key in a conversation about dismissal are the first five phrases (I emphasize, not minutes, but phrases!). They are given to you in order to clearly formulate the notice of dismissal and the objective reason. And only after this can you remember pleasant episodes of cooperation and the positive qualities of your interlocutor. Pause to allow the person to speak. Listen carefully, calmly and respectfully. The more specific the conversation, the less negative consequences for the person being fired and those with whom you will still have to cooperate.

Rule 7.Farewell form

Anyone wants to leave work with their head held high - help your subordinate. However, it is important to find a middle ground between “come in any time” and coldness. Show respect and be sincere.

Information about the experts

Elena Kozhemyakina, managing partner of BLS, Moscow. Law firm Since 1998, BLS has been protecting the interests of employers in the field of labor law and providing clients with HR services. BLS specializes in Russian labor legislation and acts only in the interests of employers.

Alexander Zhbankov, lawyer, European Law Office. Alexander Zhbankov graduated from the Moscow State Law Academy, graduate school "Rosnow" in the department of theory of state and law, his specialization is judicial protection of organizations in labor conflicts and personnel security. Teacher at the Russian School of Management, Candidate of Legal Sciences, member of the Association of Legal Education. The European Law Bureau is a Moscow Bar Association, registered by the Ministry of Justice of the Russian Federation and included in the register of the Moscow Chamber of Lawyers. It was created in 2003, when a stable creative group of lawyers and journalists was born at the intersection of journalism and law, focusing their efforts on providing legal assistance to citizens and legal entities, as well as on their legal education. The team included lawyers from different parts of the country and journalists from such publications as Economics and Life, EZh-Lawyer and the Labor Disputes magazine.

Victor Nechiporenko, General Director of OOO Information Service “Red Telephone”, Moscow. "Red phone" Field of activity: organization of call centers; information and registration services for exhibitions; conducting marketing research, seminars and trainings on telephone communication, telephone sales; consulting activities on organizing business processes of call centers and marketing services, product promotion. Form of organization: LLC. Location: Moscow. Number of staff: 10. Number of exhibitions organized annually: 50–60. General Director's length of service: since 1996 (since the company was founded). Participation of the CEO in the business: co-owner.

Marina Melia, General Director of the company "MM-Class", Moscow; professor of psychology. Graduated from the 2nd Moscow Order of Lenin State Medical Institute named after. N. I. Pirogova. Engaged in coaching consulting for top officials of Russian business. Previously, she worked as a psychologist in national sports teams of the USSR, and headed the laboratory of psychology of elite sports at the All-Union Scientific Research Institute of Physical Culture. Author of the best-selling books “Business is Psychology”, “How to Strengthen Your Strength? Coaching", "Success is a personal matter" and "The main secret of the first year of life." LLC "MM-Class" Field of activity: coaching. Number of employees: 23.

Dismissal of a director (Sample form P14001 when changing director).docx

08.05.2014 78907

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself - nerves and time. But why sometimes, knowing that a break in relations is inevitable, do we postpone the decision for months?

The dismissal process can be divided into three stages: making a decision to dismiss, informing the employee, and legal registration of dismissal.

Decision-making

The decision to dismiss arises in the head of the manager at first unconsciously, implicitly and matures for some time. As a rule, from the moment the thought appears that an individual employee has no place in the company or department, until the announcement to him decision taken months pass. Often managers delay dismissal because they are not ready to say it out loud. The most common reasons for such delay can be identified.

• “If I admit the need for dismissal, I actually admit that I made a mistake when I conducted the interview, I didn’t see it, I didn’t recognize it, I taught the wrong thing, I didn’t pay enough attention.”
• “I feel sorry for dismissing him; he has a difficult financial situation.”
• “It’s so frustrating to report this. I hope the situation will resolve itself."
• “Staffing problem! I’ll fire this one, but where is the guarantee that the next one will be better? Who will work?

All these reasons are a sign of excessive softness of the leader. By delaying making a decision, you deprive your business of efficiency and face the fact of lost profits due to the fault of a careless employee.

Managers sometimes believe that it is better to have a bad employee than none at all. The directors say: “I can’t get rid of this employee now, because the rest will have to work even more, there are not enough people.” Of course, you need to choose a convenient moment to quit. But there will never be enough time, staffing, and there will always be a reason to say to yourself: “I don’t have time to interview candidates right now” or “Maybe he’ll come to his senses.” If bad employees do not want to improve, they need to be fired.

Perhaps right now there is a person working on your team whom you want to get rid of, but are delaying making a decision. Analyze the employee’s behavior by refuting or agreeing with the following statements:

1. The employee takes a lot of time, energy, money, and his performance does not improve. He does not (does not want to, cannot) fulfill the tasks assigned to him.
2. The employee shows disrespect for you and the team (customers, if the position involves communicating with clients).
3. Personally, you are uncomfortable working with this person; he is unpleasant to you.
4. The employee is disloyal to the company and does not share its values ​​and principles.
5. The employee is conflict-prone and regularly creates difficult situations.

If the answers are ambiguous, then give the person another chance. Give him the opportunity to improve within a certain time frame. If you agreed with 4 statements, decide to break up right now and set a date for the final conversation.

Informing an employee about dismissal

Often in the final conversation, the manager lists what the person did badly and gives negative examples. In such words lies an attempt to prove to both oneself and the employee that he really does not correspond to the position he holds. This serious mistake. When you voice mistakes or shortcomings, be prepared for the person to defend himself - this is a natural reaction. He may not show his resentment, but when he goes outside the office, at every opportunity he will talk about your disadvantages and the problems of the company. Your task is to conduct the conversation so that the employee does not leave embittered and does not discredit the name of the organization.

The dismissal procedure should be an additional reason for feedback and be carried out according to the “plus-minus-plus” formula. Start the conversation by listing the employee’s positive qualities, based on which you once hired him. Then explain why you are unhappy and what caused the dismissal. Finishing the conversation, once again highlight a few advantages that, in your opinion, are his strengths and will be useful to him in his new job. Any person has the right to understand why they want to break up with him.

When conducting the final conversation, it is better to be guided by the following rules. Talk to the person being fired personally and privately, be attentive and polite, but do not sympathize. Stay correct: voice only facts, not emotions. Give the employee the opportunity to speak, do not agree or challenge his words, just listen. Speak firmly, because the decision has already been made. End the conversation on a positive note - every person has something to praise for.

Legal registration of dismissal

It is important to fire an employee legally and without consequences. The Labor Code offers us several options; let’s look at the most common ones.

Classic option - at your own request(Clause 3 of Article 77 of the Labor Code of the Russian Federation). This method is the simplest for both parties: the manager invites the employee to write a letter of resignation in his own hand, the employee agrees. If he refuses to write a statement of his own free will, then you can sympathize with the manager, since he will have to try to force the employee to do it. Each remark must be accompanied by a reprimand and written documentation. When there is a sufficient amount of documentary evidence of the employee’s failure to fulfill his duties, you can talk again with the employee and invite him to voluntarily write a statement in order to avoid dismissal under the article. Most likely, after reviewing the documents and talking with you, the employee will write a letter of resignation of his own free will.

You can go the other way, namely, change the employee’s working conditions: transfer his clients and part of his powers to another employee, do not raise wages, deprive the bonus. In this case, everything depends on the personality of the leader and his moral principles.

But these methods have their drawbacks - they incite war and affect relationships within the team as a whole. Angry, the fired employee may contact tax office, to court, to your competitors or to all at the same time, turning your existence into a nightmare.

Another way to break up - termination of a trade agreement by agreement of the parties(clause 1, part 1, article 77 of the Labor Code of the Russian Federation). This method is convenient to use when both parties are determined to sever the employment relationship. In this case, the date of dismissal is selected taking into account their mutual interests, for example, when a replacement for the employee is selected or when he finds a new job. If it is legally correct to formalize the termination of an employment contract by agreement of the parties, then it is necessary to conclude a termination agreement, which must stipulate the date and conditions of termination. IN real life The parties agree on the terms of departure orally, and when the agreed date arrives, the employee writes a letter of resignation, and the entry in the work book is made on the basis of paragraph 3 of Article 77 of the Labor Code, that is, “at his own request.”

Opportunity dismissal due to failure to complete the probationary period must be provided in advance. The probationary period usually lasts up to three months, and during this period the employment contract can be terminated at any time. Please note that the probationary clause must be included in the employment contract and, preferably, in the order and application for employment. Otherwise, the employee is considered hired without a probationary period, and he cannot be fired on the basis of failure to pass the test. If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test. In this case, it is advisable to confirm the reasons with written evidence.

Termination of a fixed-term employment contract passes easily and simply after the expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before dismissal.

Dismissal based on certification results- a risky step, since in 90% of cases the court decision is made in favor of the employee, regardless of how well the employer’s documents are drawn up. If an employee cannot cope with job responsibilities, then he can be fired based on the results of certification (in accordance with subparagraph “b” of paragraph 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a Regulation on Certification, as well as an approved certification schedule or order, which is created immediately before the certification. The employee must be familiarized with all these documents in advance against signature. It is better for the head of the company not to be a member of the certification commission, since then the employee will not have the opportunity to file a complaint about disagreement with the results, which are issued in a separate order. If the results of the certification are unsatisfactory, it is necessary to give the employee time to correct it and re-certify him. If the results of re-certification are unsatisfactory, it is better to offer the employee another job, and if he refuses, you can safely fire him. Most often, such dismissal involves a conflict between the company and the person, and therefore this measure should be used only in extreme cases. If before the certification the employee did not have written comments or complaints from colleagues, then such dismissal is easily challenged in court, and in most cases the judge takes the side of the former employee.

If an employee is systematically late, then he can be dismiss due to non-compliance with labor discipline(Clause 5 of Article 81 of the Labor Code of the Russian Federation). The most important thing in this case is the clause of the employment contract, which clearly states the start and end times of the working day. In addition, the time sheet must record the time of arrival at work. If an employee’s tardiness is chronic, it is necessary to draw up a report of tardiness, and then require a written explanation from the employee on the basis of Article 193 of the Labor Code of the Russian Federation. If the employee does not want to write an explanatory note, he should draw up a statement of refusal and get the signatures of three other employees on it. If there are three written comments, you can issue a reprimand, after which you can safely dismiss such an employee. I would like to emphasize that if you want to fire an employee under an article, it is important to carefully prepare written documents (memos, comments, orders) so that in the event of a legal dispute you have strong evidence.

Despite the abundance of ways to part ways with an employee, the best is voluntary dismissal. Try to do everything possible to ensure that the employment contract is terminated precisely on this basis, regardless of the presence or absence of a conflict with the employee. The main thing for you is to avoid lawsuits that entail costs. In addition, there is a possibility that you will be forced to reinstate the employee during the trial. It is better not to bring the dismissal to trial and resolve the situation peacefully.

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself – nerves...

How can you fire an employee without his consent? This topic is of interest to many modern employers. After all, termination of an employment relationship is in itself a complex procedure. Violation of established procedures will result in the employee being reinstated. For example, through the court. What should every employer remember about dismissing subordinates? How does this procedure happen?

Ways to terminate a relationship

Is it possible to fire an employee without his consent? We will have to look into this issue further.

First, let's look at several ways to terminate an employment relationship in the Republic of Belarus and the Russian Federation:

• at the personal request of the subordinate;
• at the initiative of the employer;
• due to staff reduction;
• due to liquidation of the enterprise;
• by mutual agreement of the parties.

Usually the first option is considered the most acceptable. But what to do if a citizen does not want to leave work? Is there any way to get rid of it? And if so, how to do it?

Legal basis

To correctly answer such questions, you need to thoroughly study the Labor Code of the Russian Federation.

It states that termination of employment relations in Russia can occur even without the consent of the employee. That is, the theoretically studied operation takes place.

The problem is that bringing your idea to life is not as easy as it seems. The employer will have to follow a certain algorithm of actions. In addition, to terminate an employment contract with a person, you need compelling reasons. You can’t just deprive a citizen of his job.

Main reasons for dismissal

How can you fire an employee without his consent? We have already said that this operation is possible only if there are compelling reasons for it. Simply because “the employer wants” it will not be possible to terminate the employment relationship. This is a direct violation of current legislation.

Most often, the employer's initiative to dismiss comes for the following reasons:

• inconsistency with the position;
• violation of labor discipline;
• closure of the company/reduction of staff.

How can you fire an employee without his consent in the Republic of Kazakhstan or the Russian Federation? The algorithm of actions in both cases will be approximately the same. The difference is that upon dismissal, different articles of the codes will be written down in the work books.

Reduction

First, let's look at a not so common reason - forced dismissal due to staff reduction.

According to current laws, the employer must keep more qualified and experienced employees at work during layoffs. Everyone else is warned in advance about the upcoming event in writing. A decree is issued, with which workers are familiarized.

After a layoff, the employer must pay severance pay to all fired employees. In addition, subordinates are entitled to compensation for time actually worked and for unused vacation.

Liquidation

How can you fire an employee without his consent? The next option is also extremely rare. Therefore, we will consider it without details.

We are talking about liquidation of the enterprise. The employer notifies subordinates about the closure of the company, makes calculations (severance pay, compensation and other payments), and then indicates in the employees’ work books that they were fired due to the liquidation of the company.

Prohibitions on reduction

How can you fire an employee without his consent? budgetary organization and not only? We have already considered several options. But, as already mentioned, they do not occur too often.

It is important to note that management does not always have the right to terminate the employment relationship unilaterally on its own initiative. You cannot be forced to dismiss:

• pregnant women;
• women on maternity leave;
• single mothers with children under 14 years of age;
• minors;
• mothers whose children have not yet reached three years of age.

These categories of citizens cannot be fired when staffing is reduced. Only on personal initiative. But you can get rid of such subordinates by liquidating the enterprise. In practice, such cases do not occur.

Position mismatch

The next option is to terminate the employment relationship due to the subordinate’s inadequacy for the position held. What it is?

Such situations include:

• lack of qualifications (education);
• inadequacy for the position due to health reasons.

The decision on the suitability of the position is made by the commission. In the first case - certification, in the second - medical. The citizen undergoes certification and, if he fails it, the employer has the right to terminate the employment relationship. As in previous cases, this is notified in writing by issuing an order.

Inconsistency with the position held due to health conditions is determined during a medical examination. The employee takes tests, visits certain doctors (their list depends on the person’s place of work), and then receives a conclusion in the established form.

Important: the employer has the right to offer the dismissed person a position for which he or she is suitable. If suitable places are absent or the employee refuses other vacancies, he is allowed to be dismissed.

Violation of discipline

The most common scenario (and the most difficult to implement) is the termination of the relationship between a subordinate and an employer due to violations of labor discipline. If the contract does not specify the specific place of work, as well as the employee’s work schedule and responsibilities, it will be problematic to cope with the task.

According to current laws, an employee must commit 3 disciplinary violations in order for the boss to terminate the employment contract. Before this, the citizen is given reprimands and warnings, and may also be subject to disciplinary action, if provided for by the employment agreement.

Just one time

But that's not all. How can you fire an employee without his consent if you don’t want to wait long? It is recommended to take a closer look at your subordinate. Perhaps he will commit a serious offense. Then just one violation is enough to terminate the employment contract. Using a similar example, we will consider dismissal at the initiative of the employer.

• major damage to company property;
• theft;
• absenteeism;
• being at work under the influence of alcohol or drugs.

These are the most common circumstances in real life. So how can you legally fire an employee without his consent?

Instructions for dismissal

It is necessary to act according to a certain pattern. It will help avoid violating the established rules of Labor legislation. This means that termination of the contract will be fully legal.

As we have already said, we will consider the process of dismissal due to a citizen committing a serious violation. For example, absenteeism.

In this case, the employer must:

1. Establish the fact of violation.
2. Draw up an act of committing a crime/misdemeanor.
3. Gather relevant evidence.
4. Request an explanatory statement from the employee. If a person has not submitted the appropriate paper after 2 days, it is necessary to draw up an act in the prescribed form.
5. Issue an order of dismissal for violation.
6. Familiarize the subordinate with the document. The employee refuses to sign the order? Then you need to draw up an act on such an act.
7. Make an entry in the employee’s work book. In our case, this is paragraph 6 of Article 81 of the Labor Code of the Russian Federation.
8. Give the subordinate a work book and pay slip.
9. Make a settlement with the former employee.
10. Provide the citizen with the necessary certificates. For example, form 2-NDFL.
11. Attach the dismissal order to the employee’s personal file.
12. Send the corresponding package of documents to the archive.

That's all. It would seem that there is nothing difficult about this. The main problem is to prove the existence of violations on the part of the employee. Especially when it comes to absenteeism.

Important: if the dismissed person refuses to sign orders, receive payments and documents, the employer is obliged to record this. As you might guess, this is done by writing the appropriate acts.

Sick leave and leaving work

How can you fire an employee without his consent if he is on sick leave? No way. This is only possible in the event of liquidation of the company.

The law prohibits the dismissal of employees who are incapacitated for work. So you'll have to wait.

The exception is cases of dismissal at the initiative of the employee. Then a person can terminate the employment contract both on vacation and on sick leave.

Pregnancy and dismissal

We found out how you can fire an employee without his consent in the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation. What to do with pregnant women?

It's not easy to get rid of them. Labor legislation, as already emphasized, allows you to terminate relations with such subordinates:

• on their initiative;
• due to the liquidation of the organization.

In addition, a pregnant woman can be fired at the initiative of the employer as an ordinary subordinate, if interesting situation not documented. In such circumstances, it is necessary to use the previously proposed instructions.

Conclusion

We found out how you can fire an employee without his consent. The methods presented to our attention are found in real life more and more often.

Nevertheless, the majority of employers persuade their subordinates to resign of their own free will - by persuading, intimidating, surviving, or simply offering a similar option. Less common is the termination of an employment relationship due to an agreement between the parties.

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