When they can be fired under the article. Be ready for anything: for what reason can you be fired from your job? Consequences for the employee

The issues of dismissal and layoffs are relevant for both parties to the employment agreement. Violation of legal norms by an employee or employer in the field of registration of the procedure for terminating labor relations can cause difficulties in further employment with an employee, as well as his financial losses due to payments not in full. For violation of the law, the employer may be brought to administrative or criminal liability, the consequences of which may be legal proceedings and accrued financial sanctions. It is important for both parties to the agreement to know for what reason they can legally fire an employee?

Possible reasons for dismissal

The list of all the circumstances that cause the breakdown of labor relations is considered in the Labor Code of the Russian Federation. An employee can be dismissed after the expiration of the agreement, by agreement between the subjects of legal relations, as a result of transfer to another employer, as well as at the request of the employee or at the initiative of the head of the business entity for certain reasons. The termination of the employment contract is relevant if the employee refuses to work on the transfer in another region, as well as to another workplace for health reasons or in connection with reorganization measures in the company or force majeure.

Dismissal of an employee at the initiative of the employer is relevant in case of violation of the provisions of labor legislation, which excludes the possibility of further cooperation between the parties. The termination of the agreement can be carried out in connection with the inadequacy of the employee for the position held, as well as due to the failure to fulfill his job duties without good reason. The dismissal of an employee is formalized in case of violation of the rules of the labor schedule, labor protection and when committing immoral acts, including when using alcohol or drugs in the workplace. Forged employment papers provided to the employer are grounds for considering the employment contract invalid.

For which they can be fired

The termination of an employment contract for any reason is carried out under one or another article of the Labor Code of the Russian Federation. From a legal point of view, there is no concept of “dismissal under the article”. However, in practice, it is applicable when cooperation is terminated at the initiative of the employer due to gross violations by the employee.

How to dismiss an employee under article for violation of discipline

In the concept of many employers, various actions of employees related to their behavior can be attributed to violations of labor discipline. However, not all faults can be dismissed. Late arrivals, non-compliance with work and rest hours, unplanned breaks, talking with other employees or smoking are not considered serious violations that could cause the agreement to be terminated.

The head of a business entity can dismiss an employee only for:

performance of official duties while intoxicated;
truancy;
absence from the workplace for more than four hours;
theft of property or its waste;
disclosure of information classified as a trade secret.

Each violation must not only be identified by the head of the company, but also documented. In the absence of papers justifying the reason for the dismissal of a negligent employee, the employer's decision can be challenged in court. In such a situation, by a court decision, he will have to pay compensation for wages to the employee, the damage caused to him and cover the costs of maintaining office.

Dismissal for being in the workplace while intoxicated

Each legislative section that interprets the reason for dismissal has hidden nuances that allow you to challenge the decision of the head of the company. It is difficult to convict an employee of absenteeism or absence from the workplace for a set time, if the employment contract does not display information about the exact place of work and about a specific time period identified as a worker. The employer's claims may acquire an unjustified status if the employee provides a certificate of temporary disability, the validity period of which covers the time the person is absent from the workplace.

If the head of the organization considers the actions of the employee in the field of his behavior unacceptable, for which it is impossible to dismiss immediately after the violation is revealed, then he needs to establish the fact of the event and document it.

A commission established by an order for the enterprise may be involved in the procedure. Its representatives record the identified event in the form of an act. The document is the reason for requiring an explanatory note from an employee and drawing up an order to issue a warning, remark or reprimand. If a violation is re-identified, the procedure is repeated with a severe reprimand to the employee. After admitting a third offense, the employer has the right to legally dismiss the offender.

Clause 3 of Part 1 of Article 81 of the Labor Code of the Russian Federation provides that an employee can be said goodbye to, revealing the inconsistency of his position. However, everything is not so simple here. The resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 states that dismissal for such a reason is permissible, provided that the employee's inadequacy to his position or work performed due to his insufficient qualifications is confirmed by the results of certification. That is, the subjective opinion of the management that the employee does not correspond to the position, but simply does not cope with the work, is not enough. Therefore, the employer does not have the right to terminate the employment contract with the specialist on the above grounds, if the employee has not been tested for his knowledge, or the certification commission has come to the conclusion that the specialist is professional. The Plenum of the Supreme Court also explained that the conclusions of the attestation commission on the employee's business qualities are subject to assessment in conjunction with other evidence in the case. This means that if, in the process of parting with the employee, a dispute arises that reaches the arbitrators, then the servants of Themis will take into account the opinion of the commission, but it will not be decisive; judges will also take into account, for example, the opinion of the head of the company about how the employee is fit for the position.

Please note: it is allowed to fire a person for his professional incompetence only if it is impossible to transfer the employee to another job, for example, a vacant position.

Please note: dismissing a person for his professional incompetence is allowed only if it is impossible to transfer the employee to another job, for example, a vacant position corresponding to the employee's qualifications or to an open lower vacancy / lower-paid job. At the same time, part 3 of Article 81 of the Labor Code of the Russian Federation obliges the company to offer the employee all positions that meet the above requirements.

Let's go back to the resolution of the Plenum of the RF Armed Forces No. 2. Now let's study the following important clarification contained in the paper. If the employee was dismissed under paragraph 3 of part one of Article 81 of the Labor Code, then the company is obliged to provide evidence that the employee refused to transfer, or the company was not able (for example, due to the lack of vacancies) to “transfer” the person with his consent to another position.

Rostrud in the Letter dated April 30, 2008 No. 1028-s specified that dismissal on the named grounds without certification is not provided.

Thus, it is quite problematic to say goodbye to an employee for his inadequacy to the position.

For which they can be fired

Another reason for dismissal is a single gross violation of labor duties by an employee (clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation). If an employee commits one of the misconduct below, they can be fired without delay. So, we are talking about:

truancy;
appearing in the service (at his workplace or on the territory of an organization or object, where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication;
disclosure of secrets protected by law (state, commercial, official and other);
theft (including petty) property, embezzlement, deliberate destruction or damage established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;
violation by the employee of labor protection requirements established by the commission or the labor protection commissioner, if it entailed serious consequences, for example, an accident, or knowingly created a real threat of such consequences.

Absenteeism

You can also fire an employee if he was absent for four hours during a working day (shift). So, if, for example, an employee went out to lunch and “walked around” the shops, this is a reason for dismissal. Please note that the absence from the office must take place within the specified period and follow in succession. This means that if an employee came to work without delay, and then went about his business and was absent for four hours, this can be considered absenteeism. If an employee goes out several times during a working day, for example, for half an hour, this does not count as absenteeism, despite how much time the person was not in total.

Dismissing for absenteeism is not easy, because you will need to confirm the absence of an employee at the workplace. At companies where the arrival time is recorded in magazines or with the help of turnstiles, it is quite easy to check the availability of a specialist on site. If there is no such control, then problems may arise, but there are options, and in this case: evidence of truancy will be, for example, testimony.

Another feature: absenteeism can only be applied to cases when the employee did not show up for work for no reason or was absent from his place. This means that if a person did not come, for example, to a Saturday work day, or to some corporate event that was held on his day off, this is not considered truancy.

Please note that if a person does not appear at work for several days in a row, and in our country this happens all the time, then upon dismissal, the day before the start of truancy will be considered the last one.

Intoxication and theft

Another reason for dismissal is the appearance of an employee at work in a state of intoxication. For this reason, you can be fired immediately and without any warning. To prove the fact of alcohol or drug intoxication, a doctor's opinion would be ideal, but testimony is also a strong argument.

Please note that if a person does not appear at work for several days in a row, and in Russia this happens all the time, then upon dismissal, the day before the start of truancy will be considered the last one.

For disclosing a secret protected by law, you can also say goodbye to an employee immediately. We are talking about those cases when secret information became known to an employee in connection with the performance of his job duties. I would like to point out that the voice-over of personal data of colleagues also belongs to such a violation. Attention: only the person who signed the document containing information related to commercial or official secrets can be dismissed on this basis: the presence of his autograph means that he has gained access to such information. Documents containing classified data are usually marked with the stamp “DSP” (for official use), employees can access them against signature.

Another reason for dismissal is theft by the employee. In Resolution No. 2, the Plenum of the RF Armed Forces clarified that any property that does not belong to this employee, in particular values \u200b\u200bbelonging to the company, other employees, as well as persons who are not employees of this organization, should be regarded as someone else's. Keep in mind that in accordance with Article 193 of the Labor Code of the Russian Federation, a disciplinary penalty (and this includes dismissal) is applied no later than one month from the day the offense was discovered, not counting the time of the employee's illness, his stay on vacation, as well as the period required to take into account the opinion of the representative body ...

The Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 clarified that if the dismissal occurs in connection with the theft, which was carried out by an employee, then the established monthly period is calculated from the date of entry into force of the verdict of the arbitrators or the decision of a judge, body, official authorized to consider cases of administrative offenses ...

Marina Skudutis, expert of the magazine "Calculation"

The labor legislation of the Russian Federation is drawn up according to the principle that the priority is to protect the interests of the less protected side of labor relations, that is, employees. Therefore, the dismissal procedure, carried out at the filing of the employer, must be followed exactly so as not to face a possible challenge of this decision and unpleasant sanctions.

Consider the legal basis on which the employer has the right to fire his employee.

General requirements for dismissal articles of the Labor Code

With the changes in the Labor Code of the Russian Federation, there is a tendency to increase and protect employers from unscrupulous workers. So, in 1918, the employer could dismiss his employee on one of 4 grounds, in 1922 there were already 7 such reasons, 1971 provided for 14 dismissal articles on the employer's initiative, and in today's edition of the Labor Code there are already 18 of them.

The main feature of the list of reasons for dismissing an employee from office is his finitude. This means that in the order of dismissal, as well as in the employment contract, there can be no other reason and article of dismissal than one of those contained in the Labor Code. Even if the dismissal occurs by mutual consent.

EXCEPTIONS: special grounds for dismissal are provided for some positions:

leading link (clause 3 of article 278 of the Labor Code of the Russian Federation);
personnel employed by individual entrepreneurs (Article 307 of the Labor Code of the Russian Federation);
hired workers performing home work (Art. 312 of the Labor Code of the Russian Federation);
employees of religious organizations (Article 347 of the Labor Code of the Russian Federation).

Classification of reasons for dismissal

The priority of the employer's desire to dismiss an employee who is unwanted or for some reason not suitable for him is reflected in Art. 81 of the Labor Code of the Russian Federation. Dismissal upon liquidation or reorganization of the company itself is provided for by Art. 180 of the Labor Code of the Russian Federation.

All reasons for termination of employment can be divided on various grounds.

To whom they are applicable. Most of the points (paragraphs 1, 2, 3, 5, 6, 11, 12) of Art. 81 can be fairly applied to almost any category of personnel. Clauses 4, 7, 8, 9, 10, 13 stipulate the dismissal of the special categories listed above in the exceptions. A separate list provides for categories to which the employer's initiative is not applicable as a basis for their compulsory dismissal. It can be:
- any workers (including homeworkers and part-time workers), if they are temporarily disabled and this is documented, or who are on any kind of vacation;
- women preparing to go on maternity leave (they can only be fired when the company is liquidated);
- employees who have not yet turned 18 (they can only be dismissed from a liquidating organization);
- female workers who have young (under 3 years old) children in their care (the reason to fire them may be the same liquidation of the company or a serious misconduct of such an employee with proven guilt);
- single parents whose children have not yet turned 14 (reasons for legal dismissal may be the same as for mothers of three years old);
- parents of disabled children (the same exceptions);
- employees of trade union bodies (they are allowed to be dismissed only on the basis of redundancy, inconsistency of the position, or a recorded violation of their duties);
- members of commissions for the resolution of labor disputes (you can be dismissed if the employee is really guilty of a misconduct, or if the relevant authority has agreed).
Did the employee give a reason. For this reason, all dismissal articles can be classified into:
- the reason for the culpable actions of the dismissed;
- not related to his possible fault.

Specific dismissal articles of the TC

Consider the reasons for dismissal on the initiative of the employer, set out in the articles applicable to most categories of personnel, dividing them into groups based on the actual culpability of the employee.

The decisive factor in dismissal is the presence of proven guilt

Item 5, Art. 81 of the Labor Code of the Russian Federation speaks of a reasonable reason for getting rid of an employee, if they have committed a violation of labor duties more than once, which is fixed by a disciplinary sanction. Simply put, the second reprimand is goodbye. Violations that can only be forgiven once can be:
- unjustified absence from work or workplace for less than 4 hours;
- failure to fulfill obligations due to a change in the rules of the labor schedule;
- evasion from the compulsory medical examination, special training, certification in labor protection.
Item 6.Art. 81 of the Labor Code of the Russian Federation allows dismissal for gross misconduct (just once is enough):
- absenteeism;
- being drunk or drugged at work;
- divulging secrets;
- bad consequences of violation of labor protection rules or the threat of their occurrence.
P. 11 Art. 81 of the Labor Code of the Russian Federation speaks of the legality of dismissal for providing false documentation or knowingly false data during employment (this means only documents and information that are decisive when applying for a job).

IMPORTANT! Each clause provides for compliance with specific conditions and a mandatory dismissal procedure for the employer.

Firing an employee who is not at fault

Item 1, Art. 81 of the Labor Code of the Russian Federation - the most comprehensive, it works for absolutely all categories of personnel. It provides for the termination of the existence of an organization or activity of an individual entrepreneur-individual.
Item 2, Art. 81 of the Labor Code of the Russian Federation Allows the dismissal of "unlucky" employees who have fallen under the headcount or staff reduction. The number indicates the required number of personnel, which ensures the functioning of the enterprise, and the staff provides for the number of managers, administration and some individual specialists. Dismissal can take place when "redrawing" technological processes or changes.
Item 3, Art. 81 of the Labor Code of the Russian Federation allows you to legally terminate the contract with an employee who turned out to be inappropriate for his position (for objective health reasons or the results of the certification carried out).

NOTE! As in the case of a “guilty” basis, and without the presence of the employee's fault, upon dismissal, the employer is obliged to adhere to the regulations established by law.

To avoid all sorts of troubles associated with the initiative to dismiss, we recommend that you follow the following proven rules.

Accurately and strictly follow the dismissal procedure typical for each of the dismissal articles of the Labor Code of the Russian Federation:
- comply with the deadlines for advance notice;
- do not neglect written confirmation of the facts of misconduct;
- take timely care of the employee's signature on getting acquainted with all types of dismissal documents, and in case of refusal to sign - on the corresponding act;
- on time and in full pay the funds due to the employee upon leaving;
- promptly return to him the work book with the dismissal notes made in accordance with the protocol.
If possible, use the phrase "of your own free will" when dismissing. If the person being dismissed has committed a misdemeanor, such a reason, indicated in the documents, will not cast a shadow on his further reputation. For the employer, the plus of this article is. That it cannot be used to contest the dismissal.
If it is important for the employer to record the employee's guilt upon dismissal, one should very closely follow the letter of the Labor Code of the Russian Federation when making a dismissal.
If we consider the judicial practice on challenging the grounds for termination of labor relations, the following articles of dismissal are the most problematic for the employer:
- for disclosing secrets protected by law (subparagraphs in paragraph 6 of article 81 of the Labor Code);
- for a decision by an employee of a managerial level without reason, which resulted in a loss, misuse or violation of the safety of assets (clause 9 of article 81 of the Labor Code).

These grounds can be ambiguous so that the employee can more easily prove that the dismissal was wrong. This creates additional problems for the employer, since in case of an ambiguous interpretation, the court usually gives preference to the “weaker” side, that is, the staff representative.

Often an employment relationship ends in dismissal. How to properly fire an employee? What if you are fired against your will? We will consider these questions and many others in this article.

Undesirable employees

agreement of the parties (Article 78 of the Labor Code);
expiration of the term of the employment contract (Article 79 of the Labor Code), except for cases when the employment relationship actually continues and none of the parties demanded their termination;
termination of the employment contract on the initiative of the employee (Article 80 of the Labor Code);
termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code);

If everything is clear on the first three points, then the last one causes a huge number of labor disputes.

Dismissal on the initiative of the employer is usually called dismissal "under the article", although there is no such concept officially in the Labor Code, and is most often used by unscrupulous managers to get rid of unwanted employees.

How does this happen? Most likely, you will first be offered to resign "of your own free will", and in case of refusal, they will threaten you with dismissal "under the article. In most cases, the employee agrees to the first option in order to avoid conflicts and unpleasant entries in the work book. But is the employer's threat so significant? Is it so easy to dismiss "under the article"? Let's turn to the legislation.

According to the Labor Code, the employer can terminate the employment relationship in the following cases:

in connection with an unsatisfactory test result (Article 71 of the Labor Code);
liquidation of an organization or termination of activities by an individual entrepreneur (paragraph 1 of part 1 of article 8);
reducing the number or staff of employees of an organization, an individual entrepreneur (paragraph 2 of part 1 of article 8);
Attention: On dismissal due to staff reduction (as well as upon liquidation of the organization), the employer is obliged to notify the employees of the enterprise on receipt 2 months in advance and, at the same time, inform the local employment service about the forthcoming release of each specific employee, indicating his profession, specialties, qualifications and wages; inform the trade union body about this in writing, and if there is a mass dismissal - three months before the upcoming events.
All other things being equal, certain categories of employees have the preferential right to preserve their jobs: family citizens - if there are two or more disabled family members; workers who are the only breadwinners in the family and other categories - invalids of the Great Patriotic War and others. ... According to Art. 179 of the Labor Code of the Russian Federation, when the number or staff of workers is reduced, the priority right to remain at work is granted to workers with higher labor productivity and qualifications.
inconsistency of the employee with the position held or work performed as a result of insufficient qualifications, confirmed by the results of certification (paragraph 3 of part 1 of article 81);
Attention: According to Part 2 of Article 81 of the Labor Code, certification must be carried out in the manner prescribed by labor legislation or other regulatory legal act; or in the manner enshrined in the organization's local regulatory act, but in fact the certification procedure is not regulated by law (with the exception of certain categories of workers - library workers, aviation workers, rescuers, heads of unitary enterprises, etc.). So most organizations are guided only by local regulations. The results of attestation in relation to each employee are drawn up by an appropriate conclusion, which gives the employer the right to terminate the employment contract on its own initiative. It is also worth noting that dismissal on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can carry out taking into account his state of health. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the area (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended on December 28, 2006) "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation") ...
change of the owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant) (paragraph 4 of part 1 of article 81);
Attention: The plenary session of the Supreme Court of the Russian Federation reduces the change of ownership of the organization's property mainly to a change in the form of ownership (from state to private and vice versa; during privatization and nationalization, as well as from federal to property of the subjects of the Russian Federation or municipal and vice versa). The new owner has the opportunity (but is not obliged) to exercise the right to dismiss the specified categories of executive employees within up to three months from the date of ownership. If the new owner decides to terminate the employment relationship, in accordance with Art. 181 of the Labor Code, he is obliged to pay compensation to the dismissed employee (not less than three average monthly salaries). In fact, this does not take into account that the new owner may not be the direct employer (Article 20 of the Labor Code), therefore this provision should not be interpreted literally.
repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary sanction (paragraph 5 of part 1 of article 8);
Attention: Such dismissal is a disciplinary action. The employer must ask the employee for a written explanation before applying the penalty. If such an explanation is not provided within two working days, then an appropriate act is drawn up. The lack of an explanation is not an obstacle to the application of disciplinary action. It is important to remember that a disciplinary sanction is applied no later than one month from the date of discovery of the offense, not counting the time of the employee's illness, his stay on vacation, and the time required to take into account the opinion of the representative body of employees; but not 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 - later than two years from the date of its commission. These time limits do not include the time of criminal proceedings. For each disciplinary offense, only one disciplinary penalty may be applied.
a single gross violation of labor duties by an employee (subparagraphs "a", "b", "c", "d", "e", clause 6, part 1 of article 81):
a. truancy, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;
b. the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication;
c.disclosure of secrets protected by law (state, commercial, official and other) that have become known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d.committing at the place of work theft (including minor) of another's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;
e. violation of labor protection requirements by the employee established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;
the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer (paragraph 7 of part 1 of article 81);
the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (paragraph 8, part 1 of article 81);
the adoption of 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 property of the organization (paragraph 9, part 1 of article 81);
one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (paragraph 10, part 1 of article 81);
submission by the employee to the employer of forged documents when concluding an employment contract (clause 11, part 1 of article 81);
Attention: Forged documents can be considered documents on education (if the performance of work requires special skills), on seniority, identity documents (passport).
stipulated by an employment contract with the head of the organization, members of the collegial executive body of the organization (clause 13, part 1 of article 81);
in connection with the conviction of the employee to a punishment excluding the continuation of the previous work, in accordance with the court verdict, which entered into legal force (paragraph 4 of part 1 of article 83);
in connection with the expiration of the validity period, suspension of validity for a period of more than two months or deprivation of the employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special right), if this entails the impossibility of the employee to fulfill his obligations under the employment contract (clause 9 h. 1 art. 83);
in connection with a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (paragraph 11, part 1 of article 77);
in other cases established by this Code and other federal laws (clause 14, part 1 of article 81).

It is illegal to dismiss an employee during the period of his disability and during vacation (part 3 of article 81 of the Labor Code of the Russian Federation), as well as dismissal of pregnant women, with the exception of dismissal during the liquidation of the organization (part 1 of article 261 of the Labor Code of the Russian Federation).

It is important to remember that the organization is obliged to pay a severance pay in the amount of the average monthly earnings upon dismissal of employees for health reasons or the results of certification, upon liquidation, and also upon reduction of the number or staff of the organization.

If in your relation the procedure of illegal dismissal was carried out at the initiative of the employer, you should contact the district court at the legal address of the organization and write a statement within a month. After proving the illegality / illegality of the dismissal in court, the decision will be in your favor - the company will be obliged to pay the necessary compensation.

Common cases of recovery to work

The largest number of court decisions in favor of reinstating an employee who was dismissed at the employer's initiative in the workplace is associated with the identification of a violation of the dismissal procedure provided for by law. For example:

the dismissal was made on several different grounds at once;
the dismissal was made contrary to the norms of the Labor Code, which prohibits the dismissal of workers on some grounds, if their transfer to another job is possible, as well as dismissal at the initiative of the employer during the vacation or temporary disability (Article 81 of the Labor Code of the Russian Federation);
dismissal to reduce the number or staff of employees was made without taking into account the rules establishing the preemptive right to remain at work (Article 179 of the Labor Code of the Russian Federation);
the dismissal was made without the participation of an elected representative trade union body of workers, if such is recognized as mandatory (Article 82 of the Labor Code of the Russian Federation);
the employee was dismissed without complying with the warning requirements upon dismissal due to the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation);
dismissal of a pregnant woman at the initiative of the employer, except in cases of liquidation of the organization, as well as in connection with the expiration of the term of a fixed-term employment contract before the onset of her right to maternity leave (Article 261 of the Labor Code of the Russian Federation);
dismissal of a woman with a child under the age of 3, a single mother with a child under the age of 14 (a disabled child under 18), other persons raising children without a mother, on grounds not related to the culpable behavior of the employee, with the exception of the complete liquidation of the organization or the termination of activities by the employer - an individual, as well as in connection with the employee's inadequacy for the position held or the work performed for health reasons (Article 261 of the Labor Code of the Russian Federation);
dismissal of an employee under the age of 18 on the initiative of the employer (except in cases of liquidation of the organization), made without the consent of the state labor inspection and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). This applies both to cases where the dismissal is made contrary to the opinion of these bodies, and to cases when the employer did not apply to these bodies at all;
dismissal of certain categories of workers in spite of the prohibition and restriction (i.e., without observing the guarantees established for them), in particular, dismissal of a trade union member under item 2; sub. "B" p. 3; clause 5 of Art. 81 of the Labor Code, without taking into account the reasoned opinion of the elected trade union body (Article 373 of the Labor Code of the Russian Federation), as well as the dismissal on the indicated grounds of the heads of the elected trade union collegial bodies and their deputies, who are not released from their main job, without the prior consent of the corresponding higher elected trade union body (Art. 374 of the Labor Code of the Russian Federation) and former heads of elected trade union bodies and their deputies within 2 years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);
dismissal, at the initiative of the employer, of representatives of employees during the period of collective bargaining without the prior consent of the body that authorized them to represent them, except for cases of dismissal for disciplinary violations (Article 39 of the Labor Code of the Russian Federation), as well as dismissal of representatives of employees participating in the resolution of a collective labor dispute, without the prior consent of the body that authorized them to represent them (Article 405).

Rights and obligations

It is also important to note that the obligation to prove the existence of a legal basis, for example, upon dismissal for absenteeism, and to comply with the established procedure for terminating an employment contract rests with the employer. But the duty of proving the validity of the reasons for absence from work is imposed on the employee by the judge.

So, according to the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended on December 28, 2006) "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation"), the general legal principle of inadmissibility of abuse of rights, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability at the time of his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of the organization (not lower than a shop and equated to it), not exempt from the main job, when the decision of the issue of dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, respectively, with the prior consent of the higher elected trade union body.

When the court establishes the fact of abuse of the employee's right, the court may refuse to satisfy his claim for reinstatement at work (at the same time, at the request of the employee who was dismissed during the period of temporary incapacity for work, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences arising from unfair actions by the employee.

Dismissal for drunkenness

What does an employer need to know to fire a drunkard correctly? First of all, the order of the employer's actions when an employee appears at the workplace in a state of alcoholic (drug / toxic) intoxication:

Suspend an employee from work on the basis of an order from the head (salary is not charged);
Draw up an act on this fact indicating the date, time of drawing up, a description of external signs of intoxication, the signatures of several witnesses and the leader. If possible, get an explanation from the employee about what is happening or record the refusal to explain;
Send the employee for a medical examination to a licensed narcologist;
Receive written explanations from the employee when he comes to his senses, or draw up an act signed by witnesses to refuse explanations;
Issue a dismissal order, familiarize the employee with it against signature within three days and give a copy.

Important nuances:

union consent is not required unless a minor is fired. In this case, the consent of the state labor inspectorate and the commission on juvenile affairs must be obtained;
you cannot fire a pregnant woman while intoxicated;
it is impossible to fire an employee in a state of alcoholic intoxication if he appears at work outside of working hours;
accidental intoxication (for example, toxic intoxication associated with toxic substances present in the workplace) cannot be a reason for dismissal.

conclusions

Thus, based on judicial practice and current legislation, dismissal "under the article" can be lawful if the employer has followed all the formalities. Otherwise, you must go to court for reinstatement at work and collection of wages or change the entry in the work book. If the employer by threats of dismissal "under the article" persuades the employee to leave "of his own free will", it is important to seek legal assistance in time in order to correctly defend his rights. Practice shows that when resolving labor disputes, court decisions are mostly made in favor of the employee. But in any case, it is better for the employee not to bring to such a situation, during the update of the resume on "HeadHunter" - hh.ua, and, in case of conflict situations, always be ready to change the place of work.

Link

Recently, Russian insurance companies have adopted Western employment insurance practices. In most cases, such insurance is not voluntary, but at the insistence of banks on a par with life insurance when issuing a loan. Depending on the concluded insurance contract, the risk of dismissal initiated by both the employer and the employee is covered.

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