The company employee violated the terms of the contract or instructions. The company has the right to take disciplinary measures for improper execution job responsibilities. What to consider when imposing a penalty.
The penalty is determined taking into account the Labor Code of the Russian Federation, as well as laws in relation to certain groups of workers
Any company employee has obligations to the employer. For example, perform labor function, obey the rules of the routine and orders of management, etc. The parties agree upon what exactly the employee must do when signing labor agreement. Also, the newcomer is introduced to the job description upon signature, internal rules and other acts. If an employee violates job duties or other requirements, he will be held accountable for improper performance.
An employee who commits violations can be punished. Labor legislation provides for several measures:
- comment,
- rebuke,
- dismissal.
Such measures apply to employees of any organizations (). In addition, the activities of certain categories of employees are regulated by special laws (Article 189 of the Labor Code of the Russian Federation). If the organization has a charter or discipline policy in accordance with the instructions of such law, the document may provide for additional penalties. For violating a job description or other violation, the employee is punished in accordance with these rules.
In particular, a professional athlete can be disqualified (Article 348.11 of the Labor Code of the Russian Federation). A teacher for serious violation of official duties is fired not only under Article 81 of the Labor Code of the Russian Federation, but also under Article 336 of the Labor Code of the Russian Federation. If failure to fulfill duties allowed executive, the rules apply. And in some cases, the actions of the violator are qualified as a criminal offense in accordance with. Negligence is punishable by a fine, labor, arrest or imprisonment - depending on the circumstances and the severity of the consequences.
By general rule You will not be fired for improper performance of your job duties if it happened once. The company has the right to dismiss for a repeated similar violation if it was committed less than a year after the first. But for a gross violation you are fired, even if it is a one-time violation.
For example, an organization terminated a contract with the head of a branch for a gross violation (clause 10, part 1, article 81 of the Labor Code of the Russian Federation). He drank alcoholic beverages with subordinates after hours on company premises. In a state of severe intoxication, the employee left the crowd, one of whom subsequently died. The company determined that the employee's actions caused an accident. The courts refused to satisfy his claim for restoration ().
Improper performance of official duties must be proven
The measures that threaten an employee for improper performance of duties or failure to perform them depend on a combination of several factors:
- Reasons why the employee made a mistake.
- Creatures of violation.
- The consequences it entailed.
The employing company must find out what happened and how serious the consequences will be. This necessary stage when choosing a punishment for the violator (Article 193 of the Labor Code of the Russian Federation). For example, if the improper performance of official duties was minor, this is not a reason to fire the employee. Such dismissal would be a mistake; the employee would be able to challenge the company’s decision. The court will find that the penalty is disproportionate to the misconduct and will not only reinstate the employee, but also seek compensation in favor of the employee.
The court overturned the unjustified dismissal for improper performance of official duties
The court reinstated the employee in her position and ordered average earnings for forced absence. The employee was fired for repeated violation of work duties. In her office they found an item that had not been written off, although it should have been done. They were reprimanded for this. She then failed to ensure that the expired merchandise was removed from the store. The company considered this a repeated violation and fired the employee.
The court found that the employer violated the rules of holding liable:
- The company fired the employee for violating instructions that were not in effect at the time the offense was committed.
- The employee supervised the staff, but only she was punished, and the direct culprits were not brought to justice.
- The company did not present evidence of violation in court.
The court ruled in favor of the employee, since the company did not confirm the failure to fulfill obligations ().
If you punish for failure to perform work duties, follow the procedure
An employee’s performance of his official duties is considered improper if he committed a violation without good reason, intentionally or through negligence. The Plenum of the Armed Forces of the Russian Federation, in resolution No. 2 dated March 17, 2004, indicated that the employee will have to be held accountable for violations:
- legal requirements;
- obligations under an employment contract;
- internal regulations;
- job descriptions;
- regulations that apply to the company;
- employer orders;
- technical rules, etc. (resolution No. 2).
To comply with the rules, the company needs to establish the degree of guilt of the employee and other circumstances. Therefore, prosecution for improper performance of official duties is possible only after an investigation.
The general algorithm looks like this:
- Draw up a document stating that you received information about the violation.
- Order a trial. Set a commission or responsible persons. Create a document about the results.
- Study the facts that were revealed during the investigation. Including pay attention to the reasons for the misconduct. The employee could be forced to violate his duties, and in this case he should not bear responsibility for improper performance. A valid reason cannot be ignored. Also evaluate the consequences of the offense.
- Request written explanation. If the employee does not give it, draw up a statement of refusal.
- Choose a penalty taking into account all the circumstances.
Failure to fulfill or improper performance of job duties can be a reason for dismissal in the same way as a single or repeated gross violation by an employee of his duties under an employment contract. The relevant legal norms are enshrined in Article 81 (clause 5, part 1) Labor Code RF.
The main difficulty here is that the formulation itself - “failure to fulfill work duties” - is quite vague and allows for different interpretations. This means that for dismissal under an article for failure to fulfill official duties, the employer must have very compelling reasons. Otherwise, the employee will be able to be reinstated to his previous place of service and in the same position through the court without much difficulty, and it may very well be that he will also have to pay compensation.
Let's figure out how to correctly formalize dismissal at the initiative of the employer for violation labor discipline.
What is considered a violation?
Not a single legislative act provides examples of what is clearly considered a violation of official and/or labor duties. The Labor Code, as well as decisions of courts of various instances, determine only the general range of responsibilities of the employee. That is why, when hiring, the rights and responsibilities of an employee or worker in any position, from director to “cleaning manager” and janitor, should be as detailed as possible.
The Labor Code contains the following responsibilities that are characteristic of all groups of workers without exception:
- conscientiously fulfill the duties specified in the employment contract and specified in the service instructions;
- comply with the requirements of official discipline and internal regulations;
- treat labor safety responsibly;
- immediately inform management about any factors that could pose a threat to property and/or the life and health of other employees;
- treat government property with care, including equipment, buildings, issued tools, etc.
Particular attention should be paid to the first point. Specific job responsibilities must be defined in the employment contract and explained in detail in the job description. The texts of both documents relating directly to the functional and general disciplinary responsibilities of the employee (even if they seem obvious) should not allow for inaccuracies or the possibility of double interpretation.
The employee must familiarize himself not only with the employment contract, but also with the instructions against signature. Only his personal signature on each sheet of instructions can serve as proof that he has read it.
It is impossible to fire someone who was not familiar with it for violating a job description. Any court will rule to restore the dismissed person to his previous position, even if the offense he committed was significant.
The same applies to official discipline and labor protection. The employee, upon signature, must be familiarized with the labor regulations (this clause is usually included in the employment contract) and with the requirements for labor protection, fire and electrical safety, for carrying out special work, etc. As a rule, in this case, the instruction is carried out verbally, but in fact its completion is certified by the employee in a special journal.
Please note: it is also impossible to fire someone for violating safety regulations without a signature in the log stating that the training was carried out.
It should be noted that you cannot be fired for any of these points. Dismissal for failure to fulfill job duties, including repeated failure, must always be preceded by disciplinary sanctions - a reprimand or reprimand. There is no difference between them; in fact, both serve as a warning to the employee - if he continues to commit violations, he will be fired.
Moreover, if after receiving a reprimand or reprimand the offender did not commit any violations for a year and there were no complaints against him, then the penalty is considered lifted or extinguished. And a penalty can be imposed only no later than a month after the discovery of the offense.
Violation of internal regulations
These are violations, most of which are not directly related to any shortcomings in the employee’s work, mistakes he made in production process and so on.
Violation of labor discipline is failure to comply with the daily routine established at the enterprise, and basic rules by discipline. These may include:
- Absence from work for a period of 15 minutes to 4 hours (more than 4 hours inclusive is absenteeism). The workplace is understood as any place where an employee must perform his official duties, including not on the territory of the enterprise, but in another place according to the order of management.
- Refusal to work in connection with the publication of a local act changing labor standards (not contradicting the Labor Code). Note: this does NOT imply a change employment contract on the part of the employer.
- Refusal to comply with a mandatory condition associated with permission to work.
The latter means mandatory medical examination for those categories of workers who are entitled to it, regular medical examinations for drivers, passing an exam on knowledge of safety precautions, rules for operating machines and/or structures and other necessary exams and tests, if they are established for a specific position. Their list is established by various authorities - the Labor Code, orders of the Ministry of Social Development, local regulations, etc.
There is a violation - is that enough?
No. We can talk about dismissal for repeated failure to fulfill duties or any violation only if:
- A violation has been recorded.
- The employee does not have a valid reason that led to this offense.
- He has at least one outstanding disciplinary sanction - a reprimand or reprimand issued in accordance with all the rules.
A violation is documented by a report or memo, filed by one of the employee’s colleagues or his immediate supervisor addressed to higher management, a client’s complaint, an act of the relevant services about refusal to undergo a medical examination, take an exam, etc.
Fixation in itself is not equivalent to an admission of guilt, in particular, with a complaint on the part of the client, it is necessary to find out whether it is justified. But a recorded complaint or specific misconduct - for example, being late for work - forces the employer to conduct an internal check on this matter.
The inspection is authorized to be carried out by a special commission, either permanent or created to examine one specific case. It must include a HR employee. The inspection must show that a violation actually took place, and a corresponding report has been drawn up.
Please note: all stages preceding dismissal for failure to fulfill official duties must be carefully documented. The “event - document” rule applies. The employee was late for work - a document, the commission conducted an inspection - a report on the results, etc.
After this, the employee must be given the right to write an explanatory note. If he committed a violation, having a good reason, then he cannot be fired, although there is an exhaustive list good reasons TK does not lead. It lists only a few, in particular:
- fulfillment of the duties assigned to him by the state - Article 170 of the Labor Code;
- being late due to donating blood as a donor - Article 186 of the Labor Code;
- refusal to work due to the fact that the employer did not notify him of changes in labor standards in a timely manner - Article 162 of the Labor Code;
- refusal to carry out orders from the employer that could lead to harm to other people - Article 220 of the Labor Code;
- lack of access to work due to the fault of the employer - Article 212 of the Labor Code and annexes to the resolution of the Ministry of Labor and the Ministry of Education No. 1/29 of January 13, 2003.
Otherwise, the determination of which reason for the violation in the case of a specific offense is valid is left to the employer. As a rule, a truly force majeure event is recognized as such, in which the employee could not influence the situation in any way (for example, car accident, the need for emergency assistance close relative and so on.). But force majeure must be documented.
The employee has 2 working days to write an explanatory note. It is impossible to fire him earlier without giving him such an opportunity.
If he refuses to write an explanatory note, this is also recorded by a special act of the commission.
Please note: there is only one punishment for one specific offense. That is, if the employee has already received a penalty for culpable act or inaction, then he cannot be fired for the same violation.
If the reason is not valid...
If, based on the results of the consideration of the case, which includes an explanatory note from the employee or an act of refusal, a decision is made that he is guilty of an offense, and there is a previously issued and still valid disciplinary sanction, then only then the employer has the right to issue a dismissal order.
In this case, it is necessary to comply with the deadline for bringing to justice - no more than a month after the disciplinary offense, and ensure that the employee does not fall into the most protected group of employees. In particular, the following categories of employees have “armor” from dismissal for this reason:
- pregnant women;
- persons on vacation or sick leave.
Registration of dismissal is carried out according to the standard procedure. Timing is at the discretion of the employer; As a rule, they are not delayed. The dismissal order is drawn up either according to the T-8 form, or according to the one approved at this particular enterprise. It must be signed by the person being dismissed, after which the HR department draws up a calculation note and makes a corresponding entry in the work book of the person being dismissed. It must contain a link to the article of the Labor Code, part and clause in accordance with which the employee was dismissed.
Very often in practice, an employer has a question: if an employee is negligent in his job duties, and as a result, the company loses a Client, how to properly bring the employee to disciplinary action, and is it possible to fire him after that?
Disciplinary sanctions are applied when an employee fails to perform or improperly performs his duties (Article 192 of the Labor Code of the Russian Federation). In this case, these responsibilities must be recorded in the employment contract, job description or in local regulations employer. Required condition the fact that the employee has familiarized himself with such instructions or local acts(employee signature on familiarization). That is, if an employee works with the company’s Clients, and his actions led to the loss of the Client, the responsibilities for working with Clients should be included in his direct responsibilities, as specified in the employment contract and/or job description.
For committing a disciplinary offense, i.e. for culpable failure or improper performance by an employee of his labor duties, three types of penalties can be applied to him (Article 192 of the Labor Code of the Russian Federation):
- comment;
- rebuke;
- dismissal.
The specified list of penalties is exhaustive, therefore the employer does not have the right to apply other types of punishment to employees (fines, etc.).
In addition, it should be remembered that according to Part 5 of Art. 192 of the Labor Code of the Russian Federation, the severity of the offense and the circumstances under which it was committed must be taken into account when imposing disciplinary action. So, for example, in judicial practice of our Company, in representing the interests of the employer in court when reinstating an employee who was dismissed due to a reduction in the number of staff and the recognition of the illegality of bringing the employee to disciplinary action, the court found that reprimanding the employee was disproportionate. A disciplinary sanction was imposed on the employee based on the results of an audit of the employee’s performance of work duties, and, from the employer’s point of view, significant shortcomings were identified in the employee’s work (gross errors in working with clients, outdated and incorrect information on clients). The court considered that the employer should subject the employee to a more lenient punishment for such violations, for example, a reprimand.
Bringing an employee to disciplinary liability consists of several stages:
1. Detection of a disciplinary violation
This may be the result of an inspection or a complaint from the company’s Clients. One of the options for registering the discovery of a fact of failure by an employee to fulfill his official duties may be to issue a memo from the immediate supervisor addressed to general director Companies. (Only the head of the Company can impose a disciplinary sanction).
Sample note text:
General Director of LLC "____"
From the Head of Customer Relations Department
I hereby inform you that on “__”_____ date I discovered the following:
employee __full name__ did not do the following..., the following was allowed... (indicate the specific situation)
“___”_____ 2011, the general director of our Client – LLC “____” __ Full Name__ called me and said that the contract with our company was terminated because:_____________ (state the reasons and their connection with the actions of the employee).
Thus, as of today the contract has been terminated, our company has suffered the following losses:
- return/not received Money under contract;
- loss of a client;
- a blow to the image of our company;
I believe that the damage caused is a consequence of the failure of the employee ____Name____ to fulfill his direct job duties, in connection with which, I ask you to look into the situation and bring ____Full Name_____ to disciplinary action.
Date, signature
The employer's further actions may have several options. If necessary, the employer can create a work commission to verify the employee’s compliance with his job duties. The creation of a commission and the conduct of an inspection are formalized by appropriate orders. In the case where such a check is not required, for example, the Client has received a complaint about rudeness and rudeness on the part of the service manager, the employer can proceed with next stage bringing an employee to disciplinary liability:
2. Requesting an explanation from the employee
It is necessary to draw up a letter on behalf of the general director of the company addressed to the employee, which indicates the circumstances stated above and the requirement to provide explanations within 2 working days (Article 193 of the Labor Code of the Russian Federation). The specified letter must be handed over to the employee against receipt, indicating the date and signature of the employee’s receipt on the copy of the letter. If the employee refuses to receive such a letter, the employer must make such a demand orally and, in the presence of three company employees, draw up a Statement that explanations have been requested from the employee. The employee is given 2 (two) working days to provide explanations. This period must be waited, even if the employee immediately refused to give an explanation.
3. After 2 working days:
two options are possible:
- employee's explanation in writing received by the employer;
- no explanation was received from the employee. An employee’s refusal to provide explanations is not an obstacle to imposing a disciplinary sanction. The fact of the employee’s refusal to give explanations is documented in the Act on the employee’s refusal to give explanations.
After receiving explanations from the employee, they must be reviewed, and if the employer finds these explanations unconvincing, disciplinary action is imposed on the employee.
4. Imposition of disciplinary action
An order regarding the imposition of a disciplinary sanction is issued, with which the employee must be familiarized with signature within three working days from the date of its issuance. If the employee refuses to sign to familiarize himself with the specified order, then the order is read out or otherwise brought to the attention of the employee and, in the presence of three employees of the company, an Act on the employee’s refusal to sign to familiarize himself with the order is drawn up.
It must be remembered that disciplinary action is applied 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 (Article 193 of the Labor Code of the Russian Federation).
So, if an employee goes on sick leave, the employer cannot take disciplinary action against him. In this case, the period established for its application is suspended, and, when the employee returns to work, continues.
An employee can be dismissed for a one-time violation of his job duties only if he has committed an exceptionally gross violation of his job duties. The list of such violations is established in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation (for example, absenteeism or showing up at work in a state of alcohol intoxication etc.), and this list is closed. The situation in question does not fall into this list.
According to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, dismissal of an employee is possible in the event of repeated failure by the employee to fulfill his work duties without good reason, if he has a disciplinary sanction. Repeated usually means two or more times. However, here too it is necessary to take into account that any penalty imposed on an employee may be recognized as not corresponding to the gravity of the violation committed, canceled by the court, and, therefore, the criterion of repetition is lost, which means the employee may be reinstated at work by the court.
If an employer decides to fire an employee for committing a violation, the employer needs to take into account many nuances. The most important thing, of course, is to take into account the severity of the offense committed - is it commensurate with such a punishment as dismissal, and will the employer be able to prove this proportionality, if necessary judicial procedure. Also, it is necessary to arrange everything perfectly personnel documents about repeated application of a disciplinary sanction to an employee and the subsequent imposition of a penalty in the form of dismissal.
In addition, it is necessary to take into account that the court, as a rule, in such matters stands on the side of the employee, and when considering a dispute about reinstatement at work, there is a high probability that the court will consider the penalty applied to be inconsistent with the severity of the violation committed, and reinstate the employee at work .
Often in practice there are situations when an employee “declares war” on the employer, does not carry out instructions, violates subordination and there is no longer any strength to tolerate him at work. In this case, we invite employers who turn to us for help to approach the issue of dismissing an employee as carefully and seriously as possible. It is necessary to consider the entire existing situation as a whole, since there are some other, more reliable ways to fire a negligent employee, and, of course, the most the best option is the dismissal of an employee at his own request.
If you still can’t part with the employee on good terms, you need to clearly document everything Required documents, strictly follow all the procedures established by the Labor Code, and for this we always recommend contacting a specialist in order to subsequently avoid morally and financially costly disputes and litigation with the employee for the employer.
For the first offense of the employee
1. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the job duty that he violated (failed to fulfill). An employee can be held accountable for committing a violation (non-fulfillment) of some job duty established by a paragraph of the job description, Internal Rules labor regulations, employment contract, etc. Violation is legal Not
2. Upon the first violation, a report is drawn up by the person who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, or other document. In the report, you can make references to documents confirming the violation (audit report, document about defects in work, imposing a fine on the organization for a violation committed by an employee, etc.)
3. It is necessary to establish the absence of valid reasons for the employee’s disciplinary offense, to make sure that the employee certainly will not be able to justify it in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.
For the first violation, a written explanation is taken from the employee ( explanatory note) to find out its circumstances and reasons. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the management’s assignment for a good reason, then the explanatory note is registered, placed in the file and cannot be considered as a basis for applying a disciplinary sanction or taken into account when dismissing under clause 5. .1 art. 81 Labor Code of the Russian Federation. If it follows from the explanatory note that the employee does not have a valid reason for committing the offense (i.e., there are no supporting documents or other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.
If, after two working days, the employee has not provided the specified explanation, then a corresponding act (on the refusal to give an explanation) is drawn up. It is advisable that the act be certified by three employees.
4. It is necessary to find out whether the deadline for bringing the employee to disciplinary liability has expired. (Disciplinary sanction is applied 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 take into account the opinion of the representative body of employees. Disciplinary sanction cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified period does not include the time of criminal proceedings. Article 193 of the Labor Code of the Russian Federation).
5. An order is issued to apply a disciplinary measure to the employee in the form of a reprimand or reprimand. See an example of filling out an order for disciplinary action. Remark and reprimand according to Art. 192 of the Labor Code of the Russian Federation are penalties. They are not punitive measures and are not counted towards dismissal under clause 5, part 1 of Art. 81 of the Labor Code of the Russian Federation, deprivation of bonus, reduction of category, rank. It is recommended to make an order to apply a disciplinary sanction motivated, justified, with references to the clauses of the contract or instructions that were violated, to documents that confirm this, for example, memos, notifications of the Federal Tax Service of the Russian Federation about the delay in filing a declaration by an accountant, if the accountant is fired.
6. The order is registered in the Order (Instructions) Register. The court can also check this journal in the future if it suspects that the order was prepared “retroactively.”
7. The employer's order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then a corresponding act of refusal to familiarize himself with the order is drawn up. It is advisable that this act be signed by three employees.
For the employee’s second offense
8. Within 1 year from the moment a disciplinary sanction is imposed on an employee for the first disciplinary offense, a second violation (failure to fulfill) of some labor duty follows. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the job duty that he violated (failed to fulfill). An employee can be held accountable for committing a violation (non-fulfillment) of some job duty established by a clause in the job description, internal labor regulations, employment contract, etc. Violation is legal Not assigned duties do not count.
9. Upon the fact of the second violation, a report is drawn up by the person who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, or other document. In the report, you can make references to documents confirming the violation (audit report, document about defects in work, imposing a fine on the organization for a violation committed by an employee, etc.)
10. It is necessary to establish the absence of valid reasons for the employee’s second disciplinary offense, to make sure that the employee certainly will not be able to justify it in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.
For the second violation, a written explanation (explanatory note) is taken from the employee to find out the reasons for it. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the management’s assignment for a good reason, then the explanatory note is registered, placed in the file and cannot be considered as a basis for applying a disciplinary sanction or taken into account when dismissing under clause 5. .1 art. 81 Labor Code of the Russian Federation. If it follows from the explanatory note that the employee does not have a valid reason for committing the offense (i.e., there are no supporting documents or other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.
If after two working days the employee has not provided the specified explanation, then a corresponding act is drawn up (an act of refusal to give an explanation). It is advisable that the act be certified by three employees.
11. It is necessary to find out whether the deadline for bringing the employee to disciplinary liability has expired, because The type of dismissal in question is a disciplinary sanction, therefore the provisions of Art. 193 Labor Code of the Russian Federation. (Disciplinary sanction is applied 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 take into account the opinion of the representative body of employees. Disciplinary sanction cannot be applied later than six months from the date of the commission of the misconduct, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. The specified period does not include the time of criminal proceedings. Article 193 of the Labor Code of the Russian Federation).
12. Next, a dismissal order is issued (on the application of a disciplinary sanction in the form of dismissal for the second violation). Used unified form T-8, approved by resolution of the State Statistics Committee of the Russian Federation on January 05, 2004. See an example of filling out an order.
13. The order is registered in the Order (Instructions) Register.
14. The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction). This is stated in Art. 84.1 Labor Code of the Russian Federation. If an employee refuses to familiarize himself with the order to terminate the employment contract, it is also recommended to act (an act of refusal to familiarize himself with the order), which is certified by the signatures of the originator and two employees. This document may be useful in court as additional evidence that the employer is right.
15. After this, a full settlement is made with the employee, monetary compensation is paid for unused vacation, wages and other payments due.
16. A record of termination of the employment contract is made in the work book and personal card. The resignation letter may look like this:
“Dismissed for repeated failure to fulfill labor duties without good reason, paragraph 5 of part one of Article 81 of the Labor Code Russian Federation" Or: “The employment contract was terminated at the initiative of the employer due to the employee’s repeated failure to fulfill labor duties without good reason, paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation.”
The employee certifies with his signature the entries in the work book and the entry in the personal dismissal card.
17. A copy of the work book of the dismissed employee is made for the archive of the enterprise. Issued to the employee work book on the day of dismissal. An entry about this is made in the Book of Accounting for the movement of work books and inserts for them. If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. Notifications are recorded in the Notification Log.
Keep in mind:
If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.
Electronic database “HR Package”. Consulting company "Strategy"
Dismissal of an employee of an enterprise due to neglect of job duties is a fairly common occurrence. The norms and rules of this procedure are provided for in Art. 81 Labor Code of the Russian Federation. How is dismissal carried out for failure to fulfill official duties in accordance with labor legislation Russian Federation, we will tell you in the article.
Basic Rules
When hiring an employee, the manager is required to provide for review job description, which clearly describes the main responsibilities that the new employee will perform in his position (Article 68 of the Labor Code of the Russian Federation). It is necessary to familiarize the new employee with his job description before signing the TD, otherwise, in the event of disciplinary violations, the employer will not be able to legally impose a penalty, much less dismiss the employee under the article for.
If a severe failure to fulfill labor duties has been detected, this is considered a violation of labor discipline and may entail appropriate punishment.
The law allows you to fire an employee for this reason only in two cases:
- If ignoring official duties was seen more than twice.
- If an employee has failed to fulfill his immediate functional responsibilities several times without good reason. This fact must be proven.
Punishment for failure to fulfill labor duties
If an employee has violated discipline and failed to fulfill his job duties for the first time, then the employer can only issue a penalty. However, if neglect of duties is repeated, then management has the right to dismiss such an employee. The Labor Code does not contain clear instructions regarding valid reasons for non-fulfillment of work duties - they are determined by the employer in each specific case. But the manager must justify the reason for dismissal, attaching facts and relevant documents that will serve as evidence of violation of labor discipline.
The dismissal of a full-time employee due to neglect of his official duties must always be at the initiative of the employer. The procedure must be carried out in accordance with the law, otherwise the dismissal may be invalidated in the event of a trial.
Let's fire correctly
The algorithm for dismissing a violator is as follows:
- The first step is to collect facts documenting the employee’s violations of labor discipline at the enterprise. They should be accompanied by excerpts from regulatory documents organizations.
- Check the job description that the employee was previously familiar with. Dismissal for failure to fulfill job duties not listed therein will be considered an illegal action.
- Make sure that the employee is not on the list of persons who are prohibited from being dismissed at the employer’s initiative. This could be a pregnant employee or a woman who has children under 3 years of age (Article 261 of the Labor Code of the Russian Federation).
- It is necessary to clarify the date of the violation (Article 193 of the Labor Code of the Russian Federation), because the employer can impose a penalty on an employee of the enterprise only within one month from the date of his discovery.
- You must have an explanatory note signed by the employee stating the reasons for the violation.
- Analyze the real reasons for violation of labor discipline. Perhaps the employee’s immediate supervisor or working conditions are to blame.
- Draw up an order of dismissal due to failure to fulfill official duties, then familiarize the employee with it and obtain his signature as a sign of consent.
- Next, the personnel employee is obliged to register the order to dismiss the violator in the registration journal and make a corresponding entry in the employee’s work book.
- The completed work report must be issued former employee on the day of his dismissal, as well as make a full settlement with him.
It is not easy to fire an employee due to failure to fulfill job duties, because... An employer can prove a disciplinary violation only if the employee is fully informed and the official documents are in perfect condition. Otherwise, the dismissed employee will be able to challenge his illegal dismissal, and the employer will be subject to administrative responsibility in accordance with