Termination of an employment contract at the initiative of the employer is possible. Nuances of the procedure in special cases

The general grounds for termination of employment contracts are indicated in Art. 77 Labor Code of the Russian Federation. We have already touched on some of them above.

The general reasons are:

1. Agreement of the parties.

As follows from Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of its parties. It is important not only the desire of the parties to terminate the relationship, but also the agreement on the time (period, date) of termination of the contract.

Article 79 of the Labor Code of the Russian Federation imposes the obligation of the employer to warn the employee about the termination of a fixed-term employment contract in writing no less than three days before dismissal, otherwise the fixed-term employment contract is transformed into an employment contract concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Also in Art. 79 of the Labor Code of the Russian Federation defines the moments of termination of certain fixed-term employment contracts. Thus, when concluding an employment contract for the duration of the certain work, for the duration of the duties of an absent employee, for the duration of seasonal work - such contracts are terminated accordingly: at the end of the work stipulated by the contract, with the replacement employee returning to work, at the end of the season.

In all cases, the employer must warn the employee and issue a corresponding written order, which is delivered to the employee against signature.

3. Termination of an employment contract at the initiative of the employee.

The contract is terminated upon at will employee (Article 80 of the Labor Code of the Russian Federation). In this case, the employee must notify the employer in writing of his desire to terminate the employment relationship at least two weeks in advance. A different period may be fixed by agreement of the parties or specified in the law (for example, the manager must notify the employer at least a month in advance - Article 280 of the Labor Code of the Russian Federation). And if an employment contract is concluded with an employee for a period of up to two months or with a seasonal worker, then the employer is notified of the early termination of the employment contract three months in advance. calendar days(Articles 292, 296 of the Labor Code of the Russian Federation).

If, after submitting a notice of dismissal, an employee changes his decision, he has the right to withdraw his notice at any time before the expiration of the notice period for dismissal. This is always possible, except for the situation when another employee is invited in writing to replace the resigning employee, who, in accordance with Art. 64 of the Labor Code of the Russian Federation or other federal laws cannot be refused to conclude an employment contract.

4. Termination of an employment contract at the initiative of the employer.

This paragraph does not apply independently and refers to Art. 81, which outlines the grounds for termination of the contract at the initiative of the employer. We will consider these reasons further.

In accordance with Art. 61 of the Civil Code of the Russian Federation, the liquidation of an organization entails its termination without the transfer of rights and obligations in the order of succession to other persons.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another area, termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of an organization (Part 4 of Article 81 of the Labor Code of the Russian Federation). Employees must be given written notice of the upcoming dismissal at least two months in advance (Article 180 of the Labor Code of the Russian Federation).

The dismissed employee is paid at the expense of the employer severance pay in the amount of average monthly earnings. In addition, it retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (Part 2 of Article 178 of the Labor Code RF). And upon dismissal from organizations located in the regions Far North, salary retention is possible for the fourth, fifth and sixth months (Article 318 of the Labor Code of the Russian Federation).

With the written consent of the employee, the employer has the right to terminate the employment contract with him without notice of dismissal two months in advance with simultaneous payment additional compensation in proportion to the reduction in the warning period (Parts 2 and 3 of Article 180 of the Labor Code of the Russian Federation).

Temporary workers (those with a contract period of up to two months) are warned about the liquidation and reduction of staff three days in advance, and severance pay may be provided for in the contract (Article 292 of the Labor Code of the Russian Federation), and seasonal workers are warned seven days in advance, and severance pay is not less than two weeks' earnings (Article 296 of the Labor Code of the Russian Federation).

When dismissing employees due to the termination of activities by the employer - an individual, the terms of notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments, are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation). If the contract does not specify these guarantees, the provisions of the law shall apply.

2. Reduction in the number or staff of the organization's employees.

When carrying out these activities, the employer is obliged to offer the employee another available job (vacant positions). All positions (works) that the employee can occupy (perform) must be offered, taking into account his skills and state of health.

If staff reductions lead to the dismissal of workers, then workers with greater labor productivity and (or) qualifications have an advantage.

If labor productivity and qualifications are equal, preference in remaining at work is given to:

• family - if there are two or more dependents (disabled family members who are on full content employee or receiving assistance from him, which is their permanent and main source of livelihood);
• persons in whose family there are no other independent workers;
• employees who received a work injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and disabled combatants in defense of the Fatherland;
• employees who improve their qualifications in the direction of the employer without interruption from work (Part 2 of Article 179 of the Labor Code of the Russian Federation);
• other persons specified in the collective agreement of the organization.

In accordance with Part 1 of Art. 82 of the Labor Code of the Russian Federation about the decision to reduce the number or staff of the organization’s employees and the possible termination of employment contracts with employees on this basis, the employer must also inform the elected trade union body of this organization in writing, and if the decision to reduce the number or staff of the organization’s employees may lead to mass layoffs of workers - no later than three months before the start of the relevant activities.

When dismissing workers who are members of a trade union, it is necessary to coordinate the decision with the trade union.

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

By this basis an employee may be dismissed if it is impossible to transfer him to another job with his consent. In order to protect the rights of workers, members of the certification commission in mandatory a member of the commission from the corresponding elected trade union body is included (Part 3 of Article 82 of the Labor Code of the Russian Federation).

4. Change of owner of the organization’s property.

When an employment contract with the head of the organization, his deputies and the chief accountant is terminated in connection with a change in the owner of the organization, the new owner is obliged to pay compensation to these employees in the amount of not less than three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation). They also cannot be deducted from them for unworked vacation days used in advance, etc. (Article 137 of the Labor Code of the Russian Federation).

Points 5 to 10 art. 81 of the Labor Code of the Russian Federation are disciplinary dismissals (penalties - Article 192 of the Labor Code of the Russian Federation), therefore the procedure for their application must strictly comply with the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

5. Repeated failure by the employee to comply without good reasons labor responsibilities, if he has a disciplinary sanction.

Termination of an employment contract on this basis is possible if the employee has already committed a disciplinary offense for which he is subject to in the prescribed manner a disciplinary sanction was applied and this employee again commits a disciplinary offense, and the previous sanction has not yet been lifted at this time. A disciplinary sanction is lifted automatically one year after application, unless it is lifted earlier by order of the employer.

The general rules for applying penalties are as follows:

• an explanation must be taken or an act drawn up;
• an order for each case of violation is issued 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 necessary to determine the opinion of the representative body of employees, but in any case no later than six months from the date of the misconduct , and based on the results of an audit, inspection of financial and economic activities or an audit - no later than two years from the date of the offense.

6. One-time gross violation of labor duties by an employee.

Single gross violations of labor duties mean:

a) absenteeism, i.e. absence from work for the entire shift or absence from the workplace without good reason for more than four hours in a row during the working day;

b) showing up for work state of alcoholic, narcotic or other toxic intoxication.

Dismissal is possible only when the employee is work time was in a drunken state on the territory of the organization or facility where, on behalf of management, he had to perform labor functions.

The employee’s presence of alcohol, drugs or other toxic intoxication and the fact of his appearance in this state at work must be proven by the employer. The evidence will be a medical report or other evidence (for example, witness testimony);

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, as well as disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;

e) violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

7. Commitment of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of trust in him by the employer

Workers to whom this basis can be applied are persons servicing monetary and commodity assets. On this basis, watchmen, cleaners, etc., who do not service (storage, processing, manufacturing) monetary and commodity values, although they can use them in the process of work, cannot be fired.

The application of this basis does not depend on other types of liability and on the existence of an agreement on full liability. In this situation, the guilt of the employee is established by the employer himself on the basis of the evidence available to him.

8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.

There is no definition of immoral offense in the law. It seems that it should be understood as offenses that violate accepted legal norms, directly related to morality, committed by an employee both at work and at home and that do not correspond to the moral qualities required for positions held or for the work performed by him related to the education of minors.

On this basis, only employees performing educational functions can be dismissed, i.e. teachers, social educators, educators, etc. Persons performing only technical duties cannot be dismissed on this basis.

9. Making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property.

10. One-time gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties.

A manager can be dismissed for general one-time gross violations (Article 81 and 6 of the Labor Code of the Russian Federation), as well as for other gross violations that must be specified either in an individual contract with the employee or in local regulations with which the manager is familiar with painting.

11. Submission of false documents by the employee to the employer when concluding an employment contract.

In accordance with the Labor Code, the employee presents a whole package of various documents (Article 65 of the Labor Code of the Russian Federation), which can be legally expanded in some cases, taking into account the specifics of the work.

Forgery of documents can be in form (when the entire document is fake) and in content (when a valid document contains false entries).

12. This paragraph - termination of access to state secrets - was moved by the legislator to Art. 83 TK.

13. Cases provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization.

Termination of the contract due to circumstances beyond the control of the parties

In accordance with Art. 83 of the Labor Code of the Russian Federation, an employment contract is subject to termination due to the following circumstances beyond the control of the parties:

1. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.

Upon termination labor rights Based on the specified basis, the employee is paid severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is carried out on the basis of an application from the employee upon presentation by the employee of a summons from the military registration and enlistment office to appear at the recruiting station for service. Only in this case does the Federal Law “On the Status of Military Personnel” guarantee the right of a serviceman who worked at a state (municipal) enterprise before conscription to return to his previous job within six months from the date of demobilization.

2. Reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court.

Termination of an employment contract on this basis is possible only if it is impossible to transfer the employee with his consent to another job. At the same time, in in this case the employee is paid severance pay in the amount of two weeks' average earnings (Article 178 of the Labor Code of the Russian Federation);

3. Not being elected to office.

Logically, this paragraph applies in the event of non-re-election of an employee holding a certain position, new term. Since in the competitive filling of a position, in addition to such an employee, persons filling other positions can participate, and if they are not elected, they remain in their positions and there is no need to dismiss them. Also, an applicant from the street, i.e., not an employee of the organization, can participate in the competitive selection, and if he is not elected, he also does not need to be fired, since he did not become an employee.

4. Conviction of an employee to a punishment that precludes the continuation of previous work in accordance with a court verdict that has entered into legal force.

In accordance with Art. 392 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force is mandatory for all authorities state power, organs local government, public associations, officials, other individuals or legal entities and is subject to strict execution throughout the Russian Federation.

If the punishment chosen in the sentence prevents the employee from continuing his work labor activity(for example, deprivation of liberty, deprivation of the right to hold a certain position or engage in certain activities), then in this case the employment contract is subject to termination by issuing an appropriate order by the employer.

According to Part 3 of Art. 77 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work. If the employee was under arrest before the trial, then the day of his dismissal will be considered the last day of his work. This is one of the few cases of dismissal of an employee since last month.

5. Recognition of the employee as completely disabled in accordance with a medical report.

In this case, the employer is obliged to terminate the employment relationship with the employee. The basis for issuing an appropriate order can only be a medical report from authorized experts of the MSEC (medical and social expert commission).

6. Death of an employee or employer - individual, as well as the court recognizing an employee or employer - an individual as deceased or missing.

If the first half of this basis is clear enough, then the issue of recognizing a person as missing or deceased is extended in time and also leads to dismissal in the past after the person is recognized as such in judicial procedure.

7. The occurrence of emergency circumstances that prevent the continuation of labor relations (military actions, catastrophe, any other disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a government body of the relevant subject of the Russian Federation.

Not only an event must take place, but also a decision to recognize it as an emergency by the relevant authority.

8. Disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract.

9. Expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right) in accordance with federal laws and other regulations legal acts Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract.

10. Termination of access to state secrets if the work performed requires such access.

In Art. 23 of the Law of the Russian Federation dated July 21, 1993 No. 5485-1 “On State Secrets” defines the conditions for termination of access official or a citizen to state secrets.

If, for one of the reasons given therein, the employee’s access to state secrets is terminated and as a result he loses the opportunity to further carry out his labor functions, then the employment contract can be terminated by the employer under clause 12 of Art. 81 Labor Code of the Russian Federation.

Dismissal is allowed under clauses 8-10 if it is impossible to transfer the employee with his written consent to another job available to the employer (either a vacant position or a job corresponding to the employee’s qualifications, or a vacant lower position or lower-paid job), which the employee can carry out taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

11. Cancellation of a court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

12. Bringing the total number of employees who are foreign citizens or stateless persons in accordance with permissible share such workers, established by the Government of the Russian Federation for employers carrying out certain types of economic activities on the territory of the Russian Federation.

13. The emergence of restrictions on occupation established by the Labor Code, other federal law and excluding the possibility of an employee fulfilling his duties under an employment contract certain types labor activity.

Such dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

Additional grounds for termination of contracts with certain categories of employees.

The current labor legislation provides for a significant list of grounds for termination of an employment contract. They are contained directly in the Labor Code of the Russian Federation, as well as in other federal laws.

In Art. 278 of the Labor Code of the Russian Federation are given additional reasons to terminate an employment contract with the head of the organization. In Art. 288 of the Labor Code of the Russian Federation contains an additional basis for terminating an employment contract with persons working part-time. In Art. 336 of the Labor Code of the Russian Federation specifies additional grounds for termination of an employment contract with teaching worker. In Art. 241 of the Labor Code of the Russian Federation indicates additional grounds for dismissal employees in the Russian mission abroad. In Art. 248.11 provides additional grounds for the dismissal of athletes.

There are special grounds for dismissal from service of civil servants, law enforcement officers, resignation of judges, etc.

Today, anyone understands how important various nuances related to employment. In the labor sphere, everything is clearly regulated by the provisions of the law, and a long-standing system has developed.

During the work process, no problems may arise, and questions arise even when one of the parties wants to terminate the employment relationship and is looking for grounds for this. In such situations, difficulties can arise for both employers and employees.

The dismissal procedure is a rather complicated process.

In the legal field, dismissal is complete, and this process requires certain actions from both sides.

The dismissal procedure has many features and details that are prescribed in current legislative acts regulating relations between people in the field of labor law.

What is an employment contract and its termination?

Features of termination of a previously concluded employment contract by the employer

Most often, dismissal occurs at the initiative of the employer.

In many cases, the initiative to stop labor relations comes from the company, and the manager (or a representative of the HR department) must become familiar with the reasons that may be grounds for terminating the employment contract. Among these reasons:

1. Termination of activities of an employer individual entrepreneur or companies;
2. number of employees at the enterprise;
3. Insufficient skills and knowledge of the employee to perform his job duties;
4. Change of ownership of property used by the employer;
5. Failure to fulfill the labor duties specified in the contract on the part of the employee, which occurred more than once and for which the employee has already been subject to disciplinary liability;
6. A one-time violation of work rules or various duties, which is expressed in:
7. Absence of an employee throughout the entire shift without any reason;
8. Appearing at the workplace drunk or under the influence of drugs;
9. Dissemination of statements that are state, commercial or other secrets protected by law;
10. Theft of organization property and various;
11. An immoral act on the part of a person who must perform educational functions.

How does the legal termination of an employment contract occur at the initiative of the employee?

The Labor Code will clarify all issues!

The termination of the employment relationship between a company employee and his employer must be carried out in strict accordance with current legislation so that the citizen does not have to bear responsibility for unlawful actions.

The procedure depends on what exactly the employment relationship will be terminated, and each case should be considered separately. An employee, under certain conditions, can provide the employer with a statement clearly indicating his desire to resign.

Such a document must:

1. Name of the parties;
2. Main text of the statement;
3. Reasons for dismissal;
4. Signature.

In the middle of the sheet there should be the title of the document - “Application for resignation of one’s own free will.” The reasons must comply with legal norms, preferably with a direct reference to the article and subclause of the normative act.

When the document is completely ready, it is submitted directly to the employer or to the organization’s human resources department. After filing, a special period begins where the parties have new rights and obligations.

The employee must go to work and perform his work duties for 14 days, and for this time he is paid at the same rate that existed before filing the application for severance of the employment relationship. At the end of the period, the employer gives the employee other documents that he submitted when hired.

In addition, within a two-week period, the employee can withdraw his application at any time, and the employer cannot refuse him and must continue the employment relationship as usual. It will not be possible to withdraw a submitted application if during these two weeks the employer has already hired a person who has the prerogative to get a job, but an official agreement must be concluded with this person.

At the same time, for certain categories of persons the employer provides the opportunity to change the decision after 14 days. Thus, an officer of the armed forces who wrote a letter of resignation from his work position of his own free will in connection with retirement can return to his position within three months, and the workplace must be no worse than before.

How to terminate an official employment contract at the initiative of the employer?

The reason for dismissal is indicated in work book

This type of termination of an employment contract has its own characteristics, which are primarily related to the administrative functions of the employer. The termination procedure is provided for by law and includes:

1. Agreeing with a certain category of employees the conditions for terminating work contacts;
2. Studying those categories of workers who cannot be fired by law;
3. The need for real payment of severance pay as compensation for the breakdown of labor relations.

In a number of situations, it is difficult for an employer to resolve the issue of terminating cooperation with a citizen, and then consultation from the Trade Union is needed. Such cases include:

• , associated with a general reduction in the number of employees in the company;
• Termination of an existing employment contract due to poor performance of duties and low level competencies;
• Termination of cooperation after the employee commits a disciplinary offense or all kinds of violations of the internal regime of the enterprise and rules of conduct.

In such cases, there is even a special trial procedure, and until the Trade Union’s verdict is made, the employer cannot break off the labor relationship with its employee.

Most often, legal proceedings are associated with attempts to fire pregnant women, since enterprises of any form of ownership do not have the right to fire such people, except in the case of a complete cessation of the company's activities.

Upon termination of the company's employment relationship with the employee, a special notice is issued that the previously existing employment contract will be terminated. The document must contain information about the person being fired, the reason for the dismissal and the date the notice was accepted.

According to the law, dismissal can occur no earlier than 2 months after informing the employee about his dismissal, and all this time the work must continue as usual. On the last day, the employee receives a work book and other documents necessary to conclude an employment contract.

If an employee considers the employer’s decision to be illegal, then he can sue him at any time and begin to fight for justice. On initial stage labor relations contracts are often drawn up incorrectly, and employees begin to appeal against incorrect contracts.

The timing of termination on the initiative of both parties may vary, and this must be taken into account, since such cases very often become the reason for litigation. The court may recognize the unlawfulness of termination of an existing employment contract if the parties do not adhere to legally defined terms.

What are the features of terminating a fixed-term employment contract?

Termination of an employment contract at the initiative of the employee is a standard procedure

According to current legislation, such contracts must be concluded for a maximum of five years, and they regulate only certain aspects of labor relations.

Such agreements also contain certain order termination. If the contract is concluded exclusively for three years, then at the end of this period it becomes invalid, and the employer must warn the employee about this in advance.

There are contracts concluded only for the duration of certain works, and they are completed just after their completion. Some contracts are designed to completely replace another employee who is temporarily unable to perform his or her duties.

Thus, fixed-term employment contracts have a clear time frame and are therefore terminated automatically. At the same time, the parties have the right to use other types of dismissal specified in the previous sections of the article.

Expert lawyer's opinion:

The article is devoted to the issues of termination of an employment contract at the initiative of the employee. The presence of other material in the article contributes to the most complete informing of readers. However, there is a small inaccuracy that cannot be ignored. Readers probably noticed that the article contains a phrase that the employee is obliged to go to work for 14 days. This is wrong. There is no such obligation in the Labor Code.

He has the obligation to notify his superiors about his upcoming dismissal no later than 2 weeks in advance. If we take the law literally, then you can give a warning one month, two months, or three months in advance. The obligation to go to work arises only when there is no reason not to go to work. But there are quite a lot of such reasons: another vacation, study leave, due to illness, etc. There is an opinion that there is a so-called working off.

Based on the above, this is false information. The reality is that if you decide to terminate your employment relationship, you can always find a convenient moment for this and notify management 2 weeks in advance without any work. Do not forget that it is always possible to agree in advance on the date of dismissal.

It all depends on you and your manager. We also remember about constitutional law for labor, which is guaranteed to us in Art. 37 of the Constitution of the Russian Federation.

The following video will familiarize you with the nuances of terminating an employment contract at the employee’s initiative:

Unlike the employee, the employer’s freedom to terminate the employment contract at the employer’s initiative is limited by a number of strictly formal rules:

The dismissal of an employee must be carried out for specific circumstances, the list of which is according to general rule is established in federal laws, mainly Article 81 and, as an exception, in the employment contract itself, which is permissible for certain categories of workers (homeworkers, managers and others)

Dismissal at the initiative of the employer is carried out in a strictly established manner, that is, the law provides for a specific dismissal procedure for a specific reason for dismissal, for example, the rule for notifying the employee, taking into account the opinion of the VOPPO.

It must be taken into account that in the event of a labor dispute regarding the reinstatement of an employee dismissed at the initiative of the employer, the obligation to prove the existence of a legal basis and compliance with the established procedure for dismissal rests with the employer.

Dismissal at the initiative of the employer for certain reasons entails payment to the employee according to statutory compensation

General guarantees established for employees in cases of dismissal at the initiative of the employer. They are general not because they apply to everyone, they apply for a group of reasons, and for certain categories of workers:

Dismissal of an employee is not allowed, with the exception of dismissal under paragraph 1 of part 1 of Article 81 during the period of temporary disability and while on vacation, in relation to pregnant women, as well as women with children under 3 years of age, single mothers raising a child under 14 years of age, if he is disabled, then up to 18 years of age and other persons raising such children without a mother, with the exception of dismissal under paragraphs 1.5-8, 10, 11 of part 11 of article 81 and part 2 of article 336

Termination of an employment contract with employees under 18 years of age is allowed at the initiative of the employer, in addition to the general procedure, only with the consent of the state labor inspectorate and the commission for minors.

The dismissal of employees who are members of trade unions on the grounds of clauses 2,3,4 of part 1 of Article 81 is carried out taking into account the opinion of the VOPPO (trade union committee) in accordance with Article 373.

Representatives of employees participating in collective bargaining during the period of their introduction cannot be dismissed at the initiative of the employer without prior authority of their authorizing body, with the exception of dismissal for culpable reasons (dismissal related to a disciplinary offense)

Representatives of workers and their associations participating in the resolution of a collective labor dispute cannot be subject to disciplinary action during the dispute, transferred to another job or dismissed at the initiative of the employer without the prior consent of the body authorizing them (405)

Grounds for dismissal Article 81

Termination of an employment contract in the event of liquidation of an organization or termination of the activities of an individual entrepreneur (clause 1 of part 1 of Article 81).

The basis for dismissal under this clause may be a deprivation of liquidation of a legal entity, that is, a decision to terminate its activities without the transfer of rights and obligations through succession. If the employer is an individual entrepreneur, then the contract under this clause can be terminated when the activities of the individual entrepreneur are terminated on the basis of his own decision, as a result of his being declared insolvent (bankrupt) by a court decision, due to the expiration of certificates or permits. In case of a dispute, the burden of proving the fact of termination of activity falls on the employer.

Is it always logical to say that the dismissal of employees due to the liquidation of an organization is dismissal at the initiative of the employer?

In the event of termination of the activities of a branch, representative office or other separate division located in another area, the dismissal of employees of such divisions occurs according to the rules of liquidation of the organization.

Guarantees and dismissal procedure:

The employee is notified in writing against signature two months before dismissal. In practice, this occurs either by reading the order against signature, or by delivering a special notice to the employee. In case of refusal to certify the fact of familiarization with the order or receipt of notification, a corresponding act of refusal is drawn up which is confirmed by the signatures of at least two witnesses.

The rules for drawing up acts will be the same for all cases in labor law (the rules are indicated above).

The employer has the right, with the written consent of the employee, to terminate the employment contract with him on this basis before the expiration of the two-month notice period, while paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice period.

In addition to notifying the employee himself, when deciding to liquidate the organization and possible dismissal of the employee, the employer is obliged to inform the employment service authorities in writing no later than two months before the start of the relevant measures. The notice must indicate the following: profession, specialty, position, qualifications and level of remuneration for each specific dismissed employee. If the liquidation leads to the mass dismissal of workers (and the criterion for mass dismissal is established in industry agreements or territorial agreements), then notification of the employment service authorities is made no later than three months in advance.

The dismissed employee is paid severance pay in the amount of average monthly earnings, and also retains average earnings for the period of employment but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary may be retained for the third month by decision of the employment service authorities, provided that the employee applied to this authority within two weeks from the date of dismissal and was not employed by it. For employees of certain categories, separate periods for maintaining average earnings are established, for example, up to 6 months for persons dismissed from organizations in the regions of the far north, as well as ZATO - Article 317 of the Labor Code of the Russian Federation (forgot about individual entrepreneurs).

On this basis, it is possible to dismiss employees during their vacation or during a period of temporary incapacity for work.

Clause 2 of part 1 of Article 81 reduction of the number or staff of employees of an organization or individual entrepreneur. The right of the employer to determine its own structure and manage personnel, including taking measures to reduce them. In this regard, the courts, when considering disputes about dismissal under this clause, do not have the right to check the feasibility or economic justification of a reduction in headcount or staff, but are obliged to check whether the reduction was actually carried out (whether such a reduction was not fictitious), and whether all requirements were met labor legislation. A reduction in headcount differs from a reduction in staff in that in the first case the number of staff units is reduced, and in the second the number of positions, specialties and professions in the state. A reduction in numbers may coincide with a reduction in staff. A fictitious reduction is a reduction of any unit that is carried out for the purpose of dismissing a specific employee without economic justification, usually after a short time in staffing table a similar position is being restored.

Guarantees and dismissal procedure:

The employer is obliged to notify the following entities in writing about this decision (reduction) and the upcoming dismissal:

VOPPO no later than two months before the start of the relevant activities, and if this may lead to mass dismissal no later than three months

Employment service body, just like in VOPPO

The employee himself can be terminated personally and against signature no later than two months before the dismissal, before the expiration of this period, with the written consent of the employee, subject to additional payment. Compensation under Article 180 of the Labor Code of the Russian Federation

When reducing numbers or staff, the rules on the preferential right to remain at work must be observed; it is provided to employees with higher labor productivity and qualifications; if these indicators are equal, the following must be taken into account:

Having two or more dependents in the family

Absence of any other persons in the family with independent income

The fact of receiving a work injury or occupational disease while working for this employer

Disabled status during the Second World War, or during military operations to defend the fatherland

The fact of improving the qualifications of workers without interruption from work

Dismissal of employees of trade union members takes into account VOPPO

Dismissal on this basis is allowed only if it is impossible to transfer the employee to another job. of this employer. The employer is obliged to offer the employee, during the entire notice period, as soon as they appear, all vacancies corresponding to the employee’s qualifications and lower vacancies that the employee can fill, taking into account his state of health. He is obligated to offer vacancies available to him in a given locality; existing vacancies in another locality are offered only if this is provided for by the Code of Conduct. The employer must obtain evidence that he offered available vacancies, for example, have a notice of the availability of vacancies for which the employee signs to confirm the fact of familiarization.

Payment of severance pay and preservation of average monthly earnings occurs according to the rules of paragraph 1 of part 1 of Article 81

Clause 3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications established by the certification. Dismissal under this clause is permitted provided that the qualification discrepancy is confirmed by the written result of certification, which can be carried out in the manner established:

1. Labor legislation (for example, on the dismissal of rescuers on the status of laws)

   Other legal acts in the field of labor law (RF Government Decree 1997 on the certification of emergency rescue services)

   Local regulations. Any employer has the right, in order to verify the employee’s compliance with qualification requirements, to provide rules on certification at the local level; most often, the corresponding local regulatory act is called a regulation on certification.

When conducting certification, which may serve as a basis for dismissal of employees, a representative of the VOPPO must be included in the certification commission.

The employer does not have the right to terminate the contract with the employee under this clause if certification was not carried out in relation to this employee or was carried out in violation mandatory rules, or the certification commission came to the conclusion that the employee corresponds to the position held or the work performed, unconditionally or even with reservations, while the conclusions of the certification commission (in the event of a legal dispute) about the employee’s business qualities are considered in conjunction with other evidence presented in the case. The certification commission is usually entitled to make three conclusions:

On the employee’s suitability for the position held and possibly on recommendations for promotion of the employee

About inconsistency with the position held

On suitability for the position held, subject to the elimination of comments

Dismissal under this clause is permitted if it is impossible to transfer the employee to another job available to the employer with the written consent of the employee. The rules for providing vacancies are the same.

Clause 4 of part 1 of Article 81 termination of an employment contract in the event of a change in the owner of the organization’s property

This reason is special since only the head of the organization, their deputies, and the chief accountant can be dismissed under this clause (heads of branches cannot be fired). However, this reason for dismissal was included in the list of general ones due to the fact that for managers, deputies and chief accountants there are not many specific features for the formation of a separate chapter.

Deadline for dismissal - no later than three months from the date of transfer of ownership, you can dismiss. Employees are provided with compensation upon dismissal (Article 181 of the Labor Code of the Russian Federation) of at least 3 average monthly earnings.

Clause 5 of Article 81, termination of an employment contract in the event of repeated failure by an employee to fulfill work duties without good reason if he has a disciplinary sanction. This type dismissal in itself refers to a disciplinary sanction; therefore, in addition to the general rules of dismissal, the norms of Chapter 30 of the Labor Code of the Russian Federation (labor discipline, this will also apply to all other types of disciplinary dismissals, which we will consider below) must also be taken into account. Failure by an employee to fulfill labor duties without good reason means both non-fulfillment and improper fulfillment by an employee of the labor duties assigned to him, which may manifest itself in violation of the requirements of the law, obligations from the employment contract, PVTR, due instructions, regulations, orders of the employer, technical rules and so on. The concept of valid reasons is an evaluative one and will be determined depending on the circumstances of a particular case.

The employer has the right to terminate the contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to fulfill his work duties without good reason, it has not been lifted or extinguished.

A disciplinary sanction is extinguished if within a year from the date of its application the employee is not subjected to a new disciplinary sanction. Before the expiration of a year, the employer has the right to lift a disciplinary sanction from an employee on his own initiative, at the request of the employee, at the request of his immediate supervisor or trade union body. Application of a new disciplinary sanction to an employee, including dismissal under this clause, is also permissible if failure to perform or improper performance of job duties continued despite the imposition of a disciplinary sanction, for example, in the case of an employee’s continued evasion from undergoing a medical examination which is mandatory in his profession, continued evasion from passing the safety exam and others.

The employer has the right to apply a disciplinary sanction to the employee in the form of dismissal even when, before committing the offense, he submitted a letter of resignation of his own free will, since the employment relationship in this case terminates only after the expiration of the notice period for dismissal. Examples of failure to fulfill labor duties are absence from work without good reason or from work at all.

Note: if the employment contract concluded with an employee or PVTR does not stipulate a specific place for the employee, then when a question arises about its determination, Part 6 of Article 209 of the Labor Code of the Russian Federation should be applied, according to which the workplace is understood as the place where the employee should be or where he needs to arrive in connection with with his work and which is directly or indirectly under the control of the employer.

Example: refusal of an employee to perform job duties without good reason due to a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation). Labor standards are production standards, for example, which can be revised by the employer. It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (Article 74 of the Labor Code of the Russian Federation) cannot be a violation of labor discipline, but serves as grounds for dismissal under clause 7 of part 1 of Article 77 of the Labor Code of the Russian Federation.

Example: refusal or evasion without good reason from a medical examination for workers of certain professions, or refusal to undergo special training during working hours and pass an examination on occupational safety and health, if this is prerequisite permission to work

Example: paragraph 36 of the resolution of the plenum No. 2 separately considers the situation of an employee’s refusal to conclude a written agreement on full financial responsibility - independently

And others.

A number of points are indicated by Resolution of Plenum No. 2, in particular, an employee’s refusal to comply with the employer’s order to go to work before the end of his vacation cannot be considered as a violation of labor discipline, since the employee’s recall from vacation is possible only with his consent.

In the event of a dispute, the employer must have evidence showing that:

The violation committed by the employee, which was the reason for dismissal, actually took place and could be grounds for dismissal

The employer complied with the terms and procedure for bringing to disciplinary liability established by Article 193 of the Labor Code of the Russian Federation (learn).

The day the misconduct is discovered, from which the month period for bringing disciplinary action begins to run, is considered the day when the person to whom the employee is subordinate became aware of the commission of the misconduct, regardless of whether he has the right to apply a disciplinary sanction. This period does not include the employee’s time of illness, his stay on vacation, as well as the time spent by the employer on the procedure for taking into account the opinion of the VOPPO (373), as well as the employee’s absence from work for other reasons.

Clause 6, termination of labor rights in the event of a one-time gross violation by an employee of his duties is also a type of disciplinary dismissal. Unlike paragraph 5, paragraph 6 does not have an abstract formulation, but a closed list of types of violations:

1. Absenteeism, that is, absence from the workplace without good reason during the entire working day or shift, regardless of their duration, as well as more than 4 hours in a row during the working day or shift. Absence from the workplace means a situation where either the employee did not go to work at all, or went out but was outside his workplace, for example, in other premises, with colleagues, on the territory, and so on. An employee’s absence from the workplace due to the employee’s suspension or exclusion from work cannot be regarded as absenteeism (76), because the initiative in these cases comes from the employer himself, although it may be associated with unjustified reasons related to other work. The situation when an employee is at his workplace but refuses to do his work, then this is also not absenteeism. Also, the absence of an employee from the workplace in the event of suspension of work due to a delay in payment is not considered absenteeism. wages for a period of more than 15 days, provided that he previously notified the employer about this in writing (about the suspension of work). The validity of the reasons for absence is determined in each specific case by the employer based on the employee’s explanations. Of course, valid reasons include: emergency circumstances that prevent the employee from being at work, employee illness, the need to provide assistance to third parties.

Examples of absenteeism:

Abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without notifying the employer about this within the established time frame. There should be a local regulatory act - the obligation to notify the employer about changes in your personal data and a note that in the event of a long absence, the employer has the right to request an explanation for the absence by mail.

Abandonment of work without a valid reason by a person who has entered into a fixed-term employment contract until the expiration of this contract or the period of notice of early termination

Unauthorized use of time off, unauthorized going on vacation, it must be taken into account that the use of rest days by an employee is not absenteeism if the employer, in violation of the duties provided for by labor legislation, refused to provide them, and their use did not depend on the discretion of the employer. For example, Article 176 (donors).

Leaving a job by an employee for another job function if the employee was transferred legally by the employer. For example, Article 72.2. The time an employee is absent from the workplace must be recorded by the employer; in practice, this is done in an absenteeism report drawn up by an authorized person in the presence of witnesses, as well as in a work time sheet

Appearance by an employee at work or at a place specified by the employer or facility where, on behalf of the employer, the employee must perform his work function in a state of alcoholic, toxic, narcotic or other intoxication. For dismissal, the mere fact that the employee is in such a state at work during working hours is sufficient. If an employee comes to work on a weekend or holiday, or if intoxication occurs after the end of the working day, dismissal is unacceptable.

If an employee is found to be intoxicated at a checkpoint, he should be escorted to the employer’s premises and a document drawn up there confirming the fact of intoxication at the start of his working day or shift. The state of intoxication can be confirmed both by a medical report (if it is possible to obtain one) and by other types of evidence. For example, witness testimony and a report on the employee’s appearance at work in a state of intoxication. In the act, it is necessary to indicate specific signs by which the state of intoxication is determined (incoherent speech, persistent bad breath, unsteadiness of gait), the time of drawing up the report, and it must be within working hours, the place of drawing up the report (office of such and such) and certify everything with the presence and signatures of witnesses. After drawing up the act, the employer should remove the employee from work; however, this has no legal significance for dismissal

Disclosure of a secret protected by law that has become known to an employee in connection with the performance of job duties, including disclosure of personal data of another employee. State secret is information protected by the state in the field of its military, foreign policy, intelligence, counterintelligence, the dissemination of which could harm the security of the Russian Federation. Information is classified as an official or commercial secret when it has the following characteristics:

1. Information has actual or potential commercial value due to unknown to third parties

   No legal third party access on legal grounds

   The owner of the information takes measures to protect its confidentiality (example: know-how)

According to the Federal Law on Trade Secrets of 2004, information constituting a trade secret is scientific, technical, technological, production, financial, economic and other information, including production secrets, which has the characteristics listed above (signs from 139 of the Civil Code of the Russian Federation) in relation to which the owner of the information a trade secret regime has been introduced. Thus, dismissal of an employee for disclosing a trade secret is possible only if the employer has established a trade secret regime in relation to this information and has also established the employee’s obligation not to disclose this information (the obligation is specified in the employment contract + a non-disclosure agreement). In addition, mandatory elements of the trade secret regime are a list of acts, documentation, information related to a trade secret approved by the employer and placing a mark on the media of this information indicating that it is confidential.

Other types of secrets protected by law are medical, lawyer, notarial, and so on. What law protects the secret of confession?

Personal data of an employee is information that is necessary for the employer in connection with labor relations concerning a specific employee. Disclosure is an action or inaction as a result of which information in any possible form (oral, written, other form, including using technical means) becomes known to third parties without the consent of the owner of this information. The obligation of non-disclosure of information must be stipulated in the employment contract with the dismissed employee.

Assignment for the seminar: a situation where the employer has established an obligation to maintain a trade secret for 5 years, what responsibility does the former employee have for disclosure?

In case of a dispute, the employer is obliged to provide evidence demonstrating the following:

Disclosures of information relate to the indicated types of secrets

The information became known to the employee precisely in connection with the employee’s performance of work duties. Is it possible to fire an employee if secret information became known from a work colleague?

The employee agreed not to disclose this information

committing theft at the place of work, including petty theft of someone else's property, embezzlement, intentional destruction or damage established by a court verdict or a decision of a judge, body, official authorized to consider cases of administrative offenses that have entered into legal force. Theft and other actions must be committed at the place of work, that is, on the territory of the employer or other facility where the employee must perform a labor function. Any property that does not belong to a given employee should be considered as someone else's property, in particular property belonging to the employer, other employees, as well as non-employees (clients, visitors). A one-month period has been established for the application of such a disciplinary measure and comes into force from the date the court verdict or in the case of an administrative offense comes into force. You need to know Article 293.

In the event of a violation by an employee of labor protection requirements established by the labor safety commission or the labor protection commissioner, if this violation entailed serious consequences (work accident, breakdown, catastrophe), or knowingly created a real threat of such consequences. Compliance with labor protection requirements is the general labor responsibility of every employee. Violation of labor protection requirements must be documented by the above-mentioned entities, for example, in a report on an industrial accident, a report on the investigation of an accident at an enterprise. The Occupational Safety and Health Commission is a social partnership body formed by the employer on a parity basis from representatives of the VOPPO or other representative body and from representatives of the employer. This commission is responsible for ensuring labor safety requirements, and also organizes inspections of labor safety conditions at workplaces; sometimes such functions are carried out by labor safety commissioners. The list of grave consequences is closed. If the employee was not properly familiarized with labor safety requirements or, through the fault of the employer, did not undergo training and testing of knowledge in the field of labor protection, then the dismissal of such an employee under this clause is not permissible.

Clause 7 in the event of guilty actions committed by an employee directly servicing monetary and commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer. Clause 7 and clause 8 may or may not be disciplinary sanctions. A special subject under this clause is an employee who directly services monetary or commodity values. Such persons are understood as workers who receive, store, transport, distribute, process commodity or monetary assets, or similar actions. Examples of professions: loader, cashier, seller, receiver, bartender, cook, supply manager. This group of employees includes not only persons with whom agreements on full financial responsibility can be concluded, but also other employees who are directly entrusted with valuables in connection with their work responsibilities. As a rule, actions that give rise to loss of trust by the employer are associated with the commission of selfish acts or gross careless violations. The fact of these actions must be documented. It does not matter whether these actions led to real damage to the employer. Examples of mercenary acts - embezzlement, theft, taking a bribe, examples of gross careless acts - a gross violation by a storekeeper of the rules for storing any goods, which created a threat or led to damage.

If it is established in the manner prescribed by law that such actions have been committed (theft, bribery and other mercenary acts), these employees may be dismissed on this basis even in the case when these actions are not related to their work. In this case, dismissal will not constitute a disciplinary sanction. In the case where guilty actions are committed by an employee at the place of work and in connection with the performance of his job duties, dismissal under this paragraph is a disciplinary sanction. Dismissal of an employee on this basis in cases where guilty actions leading to loss of confidence were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of job duties, is not allowed later than 1 year from the date of discovery of the misconduct by the employer.

Clause 8. In the event that an employee performing educational functions commits an immoral act incompatible with the continuation of this work. An immoral act is an evaluative category, determined in each specific case by the employer himself, focused on the moral norms of society. In practice, these clearly include crimes, as well as some administrative offenses, for example, appearing in a public place in a state of severe intoxication, public foul language, other cases of hooliganism, giving knowingly false testimony, using forged documents, using unauthorized educational measures against pupils and students. . The fact that an offense has been committed must be recorded, although it is not necessary that it be recorded in a court verdict or in a resolution in a case of an administrative offense. This may be information that the employer can trust, written in a certain way (memo). Also, a special subject is employees who are engaged in educational activities, for example, teachers, lecturers educational institutions, masters industrial training, teachers and so on.

Dismissal under this clause can also occur either in the form of a disciplinary sanction if the offense was committed at the place of work in connection with the performance of job duties, or it can be dismissal on a general basis if the offense is committed outside the place of work, or at the place of work, but not in connection with with the performance of work duties. In the latter case, the period for dismissal is one year from the date of discovery of the misconduct.

Clause 9 Making an unjustified decision by the head of the organization (branch, representative office), his deputies, the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property. Dismissal under this point is a disciplinary sanction. In deciding whether it was decision unfounded, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of such a decision and whether they could have been avoided if a different decision had been made. When qualifying a decision as unreasonable, the normal degree of business or economic risk acceptable in each specific circumstances of the case must be taken into account. The presence in the employee’s actions of at least a sign of good faith (that is, acts flawlessly) and reasonableness (adequacy) should already exclude the possibility of dismissing the employee on this basis.

Examples: the head of an organization has a need to purchase goods and makes an advance payment to an unverified counterparty; it turns out that he is a fraudster. Did the manager have the opportunity to check the activities of this counterparty and adequately assess the behavior of the representative of this counterparty?

Clause 10 in the event of a one-time gross violation by the head of the organization (branch, representative office) and his deputies of their labor duties. Dismissal here is also disciplinary. The question of whether a violation was gross is decided taking into account the specific circumstances of each case. Therefore, the burden of proving the fact of the violation and its gross nature falls on the employer. As such violations in judicial practice It is proposed to evaluate, for example, failure to fulfill the duties assigned to the manager and his deputies, which could result in harm to the health of employees or damage to the property of the organization. Example: submission of false accounting and tax reporting.

Clause 11 in the event that the employee provides false documents to the employer when concluding an employment contract. Dismissal under this clause is not a disciplinary sanction, because it takes place before the establishment of an employment relationship. Question for the legislator: might it be worth expanding the scope of responsibility? Dismissal under this clause is possible when the employee provides the employer with a false document, which must be presented to them when concluding an employment contract.

Clause 12 is no longer valid

Clause 13 in the case of members of the collegial executive body of the organization provided for by the employment contract by the head of the organization. “Grim dispositiveness” within the framework of the law. Example: failure to fulfill the company’s profit plan, reduction in revenue, liquidity indicators, and so on.

Clause 14 in other cases established by the Labor Code and other Federal Laws. This refers to additional or in other language special grounds for dismissal for certain categories of workers

General note in relation to all points: When imposing a disciplinary sanction on an employee who has committed a disciplinary offense, the following must be taken into account - based on the general principles of legal responsibility, such as fairness, equality, proportionality, legality, guilt and humanity, the employer must, among other things, have evidence that that when imposing a penalty, the severity of this offense and the circumstances in which it was committed were taken into account, as well as the previous behavior of the employee and his attitude to work. If, when considering a dispute about reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

Any citizen of the Russian Federation has the right to choose any field of work and profession, while, according to the Constitution of Russia, no one has the right to force him to work. All legal issues are described in the Labor Code, including issues of dismissal. In our article we will look at how termination of an employment contract occurs at the initiative of the employer and for what reasons this can happen.

Conditions of termination and main reasons

Every manager must remember that by dismissing an employee, he is limiting his right to work. That is why legislative and inspection bodies have clearly limited the list of cases when an employee can be dismissed legally - this is spelled out in detail in Article 81 of the Labor Code of the Russian Federation. In addition, the Labor Code provides not only the main reasons for dismissal, which are usually related to the personal qualities of the employee or external circumstances (for example, bankruptcy or liquidation), but also exceptions that should be taken into account when deciding to dismiss an employee.

The general grounds for dismissal are as follows:

Liquidation of a company or closure of an individual entrepreneur

In this case, the enterprise or entrepreneur completely ceases its activities, which means that the rights and responsibilities of the legal entity are not transferred to other persons. As a result, all employees are subject to dismissal.

Staff reduction

If an employee is laid off, the employer must first offer him another position at the enterprise that is suitable both for health and health reasons.

The employee is not suitable for the position he occupies due to his low qualifications

In this case, you can dismiss the employee only after receiving an assessment from a certification commission specially created in this case. It is important to remember that pregnant women, employees who have worked in a position for less than one year, and women who care for a child under three years old are not subject to certification. At the same time, an employee can be fired only after he is offered positions for work for which his qualifications are “enough”.

Systematic violation of labor agreements specified in the contract, without explanation

In this case, management must remember that the most an important condition such dismissal constitutes misconduct in the event of a previous penalty. For example, absenteeism or attendance at work drunkenness etc. In addition, there must be evidence, and not unfounded accusations: conclusions of a medical examination, office notes, orders, etc.

In addition, there are some nuances of dismissal for certain categories of employees, which are discussed in more detail in Article 81 of the Labor Code of the Russian Federation. For example:

• Change of owner of a legal entity. If the head of the company or the chief accountant does not want to continue cooperation with the new owner, this may be the reason for their dismissal. True, there is one here important nuance– there must be a change of ownership, and not just subordination to the company.
• Commitment by a materially responsible employee of acts that undermine trust in him. In order to dismiss such an employee, such actions can be either multiple or multiple in nature; in addition, it is not necessary that the actions of the employee who undermined his or her self-confidence were committed in the workplace. For example, if we are talking about educators and teachers, they should not lead an immoral lifestyle - this could be the reason for their dismissal.
• Making decisions that resulted in material losses. True, in this case only the management team can be punished - such employees always have financial liability for performing any actions. A mandatory point is the presence of proven negative consequences such an offense. This also includes cases where management has proven gross disregard of the Labor Code of the Russian Federation in relation to employees.

In addition to what we have listed above, the legislation has established some other grounds for termination of an employment contract at the initiative of the employer. This:

1. Dismissal of the head of a company that has been declared bankrupt. This is stated in Article 278 of the Labor Code of the Russian Federation.
2. If the employee was unable to pass probation. More details in Article 71 of the Labor Code of the Russian Federation.
3. The owner of the organization or an authorized body made a decision to dismiss the manager - Article 278 of the Labor Code of the Russian Federation.

As written in Article 180 of the Labor Code of the Russian Federation, if an employee is fired due to “optimization”, that is, due to reduction or liquidation of an organization, the corresponding notification must be sent to him no later than 2 months before the proposed action. As noted in Article 178 of the Labor Code of the Russian Federation, a dismissed employee must be paid a benefit, the amount of which depends on his average monthly earnings.

A similar benefit, but in the amount of two weeks' average earnings, must be paid to employees who can no longer perform their work for medical reasons.

At the same time, every manager must remember that it is necessary to inform the trade union body of the organization about the upcoming dismissal. If carried out mass dismissal, then you must contact the trade union at least three months before, be sure to tell them about the reasons for your dismissal.

If we are talking about terminating an employment contract in the presence of proven misconduct or guilt of the employee, everything is much simpler here - the employer, at his discretion, can warn the specialist, whether or not to pay him severance pay is also decided by the head of the organization. If we are talking about imposing a penalty, then it is important to first require the employee to write an explanatory note in which he must describe why he will commit this or that offense. If there is no such document, a special act and a collection order are drawn up. Three such orders may cause dismissal under the article.

On the day of dismissal, the employee is returned his work book and payment is made to the card or at the cash desk in cash.

In what cases can an employment contract not be terminated?

True, the Labor Code of the Russian Federation also provides for cases when it is very difficult to fire an employee, and in some cases, impossible. In case of dismissal and filing a lawsuit, the company management will not only lose it, but will also receive a serious fine.

• Persons with family responsibilities. Such employees cannot be fired if they fail to fulfill their duties or in the event of a one-time violation of the Labor Code of the Russian Federation. These are pregnant women (the contract with them can only be terminated upon liquidation of the enterprise), women raising a child under three years of age, single mothers, if the employee is the only breadwinner in the family.
• Workers under the age of majority (18 years old). In this case, dismissal is possible only with the consent of representatives of the commission for minors or the labor inspectorate. The only option for dismissal without permission from the commission is liquidation of the company.

There are some restrictions for dismissing employees who are on sick leave or on vacation - they can also be fired only in the event of liquidation of the organization.

By the way, if an employee is a member of a trade union, he can only be fired with the permission of this body by sending him a corresponding request with a reason.

What to do in case of illegal dismissal?

Every employer is obliged to comply with the norms prescribed in the Labor Code of the Russian Federation, but not all of them are in accordance with the law. Let's look at the most common violations and what an employee should do if he believes that he was fired illegally.

The most common cases in practice include the dismissal of a woman who is on maternity leave. As we said above, this is only possible in case of liquidation of the enterprise. To circumvent the law, directors often fire such employees “due to staff reduction,” but this is a direct violation of the law. The same applies to the dismissal of single mothers raising children under three years of age.

At the same time, in order to circumvent the law, they often act in a very unpleasant way. For example, they give three reprimands and dismiss you under an article for a trumped-up reason, without even having any reason for it. Most often, this behavior is associated with minimal knowledge of labor legislation on the part of employees. Another favorite method is to reduce a position and create a new vacancy with similar responsibilities, as a result of which the first employee is forced to resign. This is also a direct violation of the law.

It happens that a fixed-term employment contract is concluded with a specialist, although he performs his duties on an ongoing basis, which also violates the Labor Code of the Russian Federation. Employers find many tricks, but they must remember - in such cases, the employee, by going to court, will quickly restore his rights, and the manager and the enterprise as a whole will face serious penalties.

What should an employee do who is sure that he was fired illegally? According to Article 392 of the Labor Code of the Russian Federation, an employee can go to court within 30 days from the date of receipt of dismissal documents. If this period passes and the plaintiff does not have valid reasons to explain his delay, it will be very difficult to restore his rights at work.

By the way, a labor dispute can be resolved not only in court. If the employee has not yet been fired, but has been notified of the upcoming event, it is first worth collecting evidence that would confirm the violation of his labor rights for further appeal to the labor inspectorate or prosecutor's office.

For example, you can record conversations on a voice recorder, make copies of documents (orders, acts, explanatory notes, etc.). It is important to remember that upon dismissal, you can request copies of any documents, and you do not have the right to refuse to receive them.

If the court or prosecutor's office decides to restore your work rights, then you must be returned to work the very next day, and after that you will decide for yourself whether you should stay in this company or look for another job.

In contact with

The employment contract can be terminated by any of the parties at their personal request. At the same time, it is necessary to take into account some details and legal requirements.

The manager may terminate the relationship if:

1. the citizen does not fit the declared position;
2. low level of completed tasks by the employee;
3. the subordinate's health has deteriorated and he is no longer able to perform;
4. the employee periodically violates the internal work regime;
5. absence from work for unexcused reasons;
6. criminal violations.

The company is being liquidated.

The dismissal of an employee can also occur due to the company. This circumstance is based on the norms of the eighty-second article of the Labor Code of the Russian Federation. This circumstance applies to structural changes, the company is eventually destroyed.

The staff is being reduced.

When the number or staff is reduced (Article 81 of the Labor Code of the Russian Federation), the staff schedule undergoes changes, and the number of vacancies, accordingly, decreases. The process is accompanied by a change approved by the order.

Change of founder.

Produced reorganization, which is associated with the replacement of the founder. The legislation applies here (Part 1, Article 81 of the Labor Code of the Russian Federation) and applies to the following persons:

1. heads of organizations;
2. branch managers;
3. vacancy for chief accountant.

In other circumstances, valid Article 75 of the Labor Code of the Russian Federation.

If the new founder considers it necessary, then previously working citizens will retain their jobs at the newly started enterprise.

The employee does not perform job duties.

This disciplinary sanction is subject to regulation by paragraph 5 of part 1 of Article 81. Of course, before a strict measure there must be the same action with the application of punishment, but in a more loyal form(reprimand or letter of complaint).

This measure is regulated Article 192 and applies in the following cases:

1. the employee does not want to perform his job duties;
2. there are several absences available;
3. going to work drunk.

One-time offense.

An employer has the right to dismiss a subordinate in the following cases:

1. an employee drank alcohol at work;
2. came to work drunk;
3. committed petty theft;
4. revealed state secrets;
5. was at work under the influence of prohibited substances.

In this case, acts of violations must be drawn up. Without accompanying documents and confirmation, dismissal will be impossible.

Immoral act.

This applies exclusively to teachers and educators working with individuals. The case must be heard within one month. It will be necessary to prove in court that the violation falls into the category of immoral acts.

The manager committed a violation or made an unreasonable decision.

A manager may be held accountable if the result of violations is the following:

1. in case of injury;
2. after causing material or moral damage;
3. other.

The founder must file a claim with the court within a month.

Is it necessary to inform the employee in advance, and in what cases?

Notify the employee in advance dismissal is necessary in the following cases:

• Liquidation of the enterprise.

If the company closes its operations, then it is necessary to notify the employee a couple of months in advance in the usual case, and in case of seasonal work - a week in advance. If it was compiled fixed-term agreement, then in three days.

• The employee failed the test. In this case, the employee must be notified three days in advance.
• The staff is being reduced. A couple of months' notice is required.
• The contract has expired. Management is required to notify the employee three days in advance.

No notification required, If:

• The employee did not pass the certification.
• The employee violated his job duties.
• The employee presented false documents.
• An immoral act has been committed.
• The conflict of interest that has arisen has not been resolved.

Procedure

Article 84 of the Labor Code of the Russian Federation streamlines the procedure for terminating an employment contract. The employment contract ends by issuing an order by the employer. The order must be provided to the employee so that he can sign the document.

You can familiarize yourself with the dismissal order form.

If the employee requests, he must be given a certified copy of this order. If the employee does not want to sign the document, then this must be noted on the order.

Further, on the day of termination labor agreement the employee receives his salary, and must also be paid all the accruals due to him. If an employee did not perform job duties on the day of dismissal, then all payments to him will be made no later than the next day.

If disputes arise about the amount of payments, the manager is obliged to pay the undisputed amount within a certain period of time.

If the employee does not have the opportunity to personally receive it, then he is sent a notification about the need to come for it.

From this moment on, the employer is not responsible for the delay in issuing the document.

Termination of relations with a foreign employee

To terminate an employment contract with a foreign employee, the employer must:

• Complete the order and provide it to the employee for review.
• Issue all accruals to the employee.
• Make an entry in the work book and give it to the employee on the day of dismissal.
• Notify the FMS that the contract with this person has been terminated.

If a foreigner patent expired, then you can’t fire him right away. It is necessary to relieve the employee from performing job responsibilities for one month.

If a new document is not ready within one month, the employer has the right to dismiss such an employee. In this case, it is necessary to indicate the reason for dismissal - circumstances beyond the control of the parties.

According to the law, the manager must fire a foreign citizen within a month from the moment the patent expires. If the manager does not have time to do this, he will face a fine.

The employer also faces a fine if he fires a foreigner backdating. This is allowed to be done only by decision of the court.

According to the law, foreign employees can be dismissed for the same reasons as other citizens, or under conditions appropriate to this category of citizens.

What an employer needs to know when dismissing an employee, a lawyer will tell us in a video clip:

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