When can they be fired. Be ready for anything: for what reason can they be fired from work? Consequences for the worker

The issues of dismissal and reduction are relevant for both parties to the employment agreement. Violation of legislative norms by an employee or employer in the field of registration of the gap procedure labor relations, can cause difficulties in further employment with the employee, as well as his financial losses due to payments not in full. For violation of the law, the employer may be held administratively or criminally liable, the consequences of which may be litigation and accrued financial sanctions. It is important for both parties to the agreement to know for what reason an employee can be fired legally?

Possible reasons for dismissal

The list of all circumstances that are the cause of the rupture of labor relations is considered in the Labor Code of the Russian Federation. An employee may 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 due to certain reasons. Gap employment contract relevant when an employee refuses to work on translation in another region, as well as to another workplace for health reasons or in connection with reorganization measures in the company or force majeure.

The 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 further cooperation sides. Termination of the agreement can be carried out in connection with the inconsistency of the employee with the position held, as well as due to non-fulfillment by him job duties without good reason. The dismissal of an employee is issued in case of violation of the rules work schedule, labor protection and when committing immoral acts, including when using alcohol or drugs at the workplace. Fake papers provided to the employer during employment are grounds to consider the employment contract invalid.

What can they get fired for?

The termination of an employment contract for any reason is carried out under one article or another 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 the article in case of violation of discipline

In the concept of many employers, to violations labor discipline can be attributed to various actions of employees associated with their behavior. However, not all offenses can be fired. Lateness, non-compliance with work and rest schedules, unscheduled breaks, talking with other employees or smoking are not classified as serious violations that could cause the termination of agreements.

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

performance official duties in a state of intoxication;
absenteeism;
absence from the workplace for more than four hours;
theft or embezzlement of property;
disclosure of information related to the category of trade secrets.

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

Dismissal for being in the workplace in a state of intoxication

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 the specific time period identified as working. The employer's claims may acquire an unfounded status if the employee provides a certificate of temporary incapacity for work, 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 an employee in the area of his behavior unacceptable, for which it is impossible to dismiss immediately after a violation is detected, then he needs to establish the fact of the event and document it.

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

Clause 3 of Part 1 of Article 81 of the Labor Code of the Russian Federation provides that you can say goodbye to an employee, revealing a discrepancy with his position. However, everything is not so simple here. In the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2 states that dismissal for such a reason is permissible, provided that the inconsistency of the employee with 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 a 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 professionally suitable. The SC Plenum also clarified that the conclusions attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case. This means that if in the process of parting with an employee a dispute arises that reaches the arbitrators, then the servants of Themis, although they 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 on how the employee fits the position.

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

Please note: dismissing a person for his unsuitability is allowed only if it is impossible to transfer the employee to another job, for example, a vacant position that matches the qualifications of the employee 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 Resolution No. 2 of the Plenum of the RF Armed Forces. 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 indicating that the employee refused to transfer, or the company was not able (for example, due to lack of vacancies) to “transfer” the person with his consent to another position.

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

Thus, saying goodbye to an employee for his inconsistency with the position is quite problematic.

What can they get fired for?

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

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

Absenteeism

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

It is not easy to dismiss for absenteeism, because you will need to confirm the absence of an employee at the workplace. In firms where the arrival time is recorded in magazines or with the help of turnstiles, it is quite easy to check the presence 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 absenteeism will be, for example, witness testimony.

Another feature: absenteeism can only be applied to cases when an 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 community work day, or to some corporate event that was held on his day off, this is not considered absenteeism.

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 last day will be considered the day before the start of absenteeism.

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 testimonies are also strong arguments.

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 last day before the start of absenteeism will be considered.

For disclosing legally protected secrets, you can also say goodbye to an employee immediately. We are talking about those cases when secret information became known to the employee in connection with the performance of his job duties. I note that the voicing of personal data of colleagues also belongs to such a violation. Attention: only the person who signed the document listing information related to commercial or official secrets can be fired on this basis: the presence of his autograph means that he has acquired access to such information. Documents containing classified data are usually marked with the heading "For official use" (for official use), access to them by employees is carried out against signature.

Another reason for dismissal is the employee committing theft. In Resolution No. 2, the Plenum of the Supreme Court of the Russian Federation explained that any property that does not belong to this employee, in particular, valuables, should be regarded as someone else's. company-owned, other employees, as well as persons who are not employees of this organization. Keep in mind, according to article 193 of the Labor Code of the Russian Federation disciplinary action(and dismissal also applies to them) is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee’s illness, his stay on vacation, as well as the period necessary to take into account the opinion of the representative body.

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 clarified that if the dismissal occurs in connection with the theft committed by the employee, then the established monthly period is calculated from the date the arbitrators' verdict or the decision of the judge, body, official authorized to consider cases of administrative offenses comes into force .

Marina Skudutis, expert of "Calculation" magazine

Labor law Russian Federation drawn up on 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, which is carried out at the suggestion of the employer, must be followed exactly so as not to face a possible challenge to this decision and unpleasant sanctions.

Consider the legislative grounds on which the employer has the right to dismiss his employee.

General requirements for dismissal articles of the Labor Code

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

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

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

management (clause 3 of article 278 of the Labor Code of the Russian Federation);
personnel working for individual entrepreneurs (Article 307 of the Labor Code of the Russian Federation);
hired workers performing home work (Article 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 objectionable or for some reason not suitable for him is reflected in Art. 81 of the Labor Code of the Russian Federation. Dismissal during the 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 relations can be divided into various grounds.

Who is applicable to. Most of the points (clauses 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 forced dismissal. It can be:
- any employees (including homeworkers and part-time workers), if they are temporarily unable to work and this is documented, or who are on any type of vacation;
- women preparing to go on maternity leave (they can only be fired upon liquidation of the company);
- employees who have not yet turned 18 (they are entitled to be fired only from a liquidating organization);
- employees who have young children (under 3 years old) in their care (the reason for dismissing them may be the same liquidation of the company or a serious misconduct of such an employee with proven guilt);
- single parents whose children are under 14 (reasons for legal dismissal may be the same as for mothers of three years old);
- parents of disabled children (same exceptions);
- employees of trade union bodies (they are allowed to be dismissed only due to reduction, non-compliance with the position, or a recorded violation of the performance of their duties);
- members of commissions for the resolution of labor disputes (you can dismiss if the employee is really guilty of a misconduct, or if the relevant body has agreed).
Did the employee give a reason? On this basis, all dismissal articles can be classified into:
- caused by the guilty actions of the dismissed person;
- unrelated to his possible guilt.

Specific dismissal articles of the Labor Code

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

The decisive factor in dismissal is the presence of proven guilt

P. 5 Art. 81 of the Labor Code of the Russian Federation speaks of a justified reason for getting rid of an employee if they have violated their labor duties more than once, which is recorded 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;
- non-fulfillment of duties due to a change in the rules of the labor schedule;
- evasion from passing a mandatory medical examination, special training, certification in labor protection.
P. 6. Art. 81 of the Labor Code of the Russian Federation allows you to fire for gross misconduct (once is enough):
- absenteeism;
- appearing at work drunk or drugged;
- disclosure of 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 legitimacy of dismissal for providing false documentation or knowingly false data during employment (meaning only documents and information that have crucial when hiring).

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

Dismiss an employee who is not at fault

P. 1, Art. 81 of the Labor Code of the Russian Federation- the most comprehensive, it is valid for absolutely any category of personnel. It provides for the termination of the existence of an organization or activity individual entrepreneur-individual.
P. 2 Art. 81 of the Labor Code of the Russian Federation allows the dismissal of "unlucky" employees who have fallen under a reduction in the number or staff. The number speaks of required quantity personnel that ensures the functioning of the enterprise, and the state provides for the number of managers, administration and some individual specialists. Dismissal can take place during the "redrawing" technological processes or change.
P. 3 Art. 81 of the Labor Code of the Russian Federation allows to legally terminate the contract with an employee who turned out to be inappropriate for his position (according to objective reasons health or the results of the certification).

NOTE! Both in the case of a "guilty" reason, 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 following rules proven by practice.

Accurately and strictly follow the dismissal procedure, characteristic for each of the dismissal articles of the Labor Code of the Russian Federation:
- observe the terms of advance notices;
- do not neglect written confirmation of the facts of misconduct;
- timely take care of the employee's signature on familiarization on all types of dismissal documentation, and in case of refusal to sign, on the relevant act;
- timely and in full to pay the funds due to the employee upon departure;
- timely return to him a work book with records of dismissal made in accordance with the protocol.
If possible, use the wording "by own will". If the dismissed person has committed a misconduct, such a reason indicated in the documents will not cast a shadow on his future reputation. For the employer, the plus of this article is that. That the dismissal cannot be challenged in court.
If it is important for the employer to fix the fault of the employee upon dismissal, the letter of the Labor Code of the Russian Federation should be followed very precisely when registering the dismissal.
If we consider the jurisprudence on challenging the grounds for termination of labor relations, the following articles of dismissal are the most problematic for the employer:
- for disclosure of secrets protected by law (clauses in clause 6 of article 81 of the Labor Code);
- for the adoption by an employee of a management team of a decision without reason, which caused a loss, misuse or violation of the safety of assets (clause 9 of article 81 of the Labor Code).

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

Often, employment relationships end in dismissal. What is the right way to fire an employee? What to do if you are fired against your will? These questions and many others will be discussed in this article.

Disliked 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 in cases where the employment relationship actually continues and none of the parties has demanded its termination;
termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code);
termination of the 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 at the initiative of the employer is usually called dismissal "under the article", although officially there is no such concept in the Labor Code, and is most often used by unscrupulous managers to get rid of objectionable employees.

How does it happen? Most likely, at first you will 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 work book. But is the employer's threat so significant? Is it so easy to dismiss "under the article"? Let's turn to the law.

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

in connection with the unsatisfactory test result (Article 71 of the Labor Code);
liquidation of an organization or termination of activity by an individual entrepreneur (clause 1, part 1, article 8);
reduction in the number or staff of employees of an organization, an individual entrepreneur (clause 2, part 1, article 8);
Attention: The employer is obliged to notify the employees of the enterprise against receipt 2 months in advance of the dismissal due to a reduction in staff (as well as in the event of liquidation of the organization) and to bring to the attention of local authority employment services data on the upcoming release of each specific employee indicating his profession, specialty, qualifications and salary; in writing inform the trade union body about this, and if there is a mass dismissal - three months before the upcoming events.
Other categories of employees have the preferential right to retain their jobs, other things being equal: family citizens - in the presence of two or more disabled family members; workers who are the only breadwinners in the family and other categories - disabled people of the Great Patriotic War etc. (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 Labor Code Russian Federation"). According to Article 179 of the Labor Code of the Russian Federation, when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications.
non-compliance of the employee with the position held or the 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, attestation must be carried out in the manner established by labor legislation or other regulatory legal act; or in the manner prescribed in the local regulatory act of the organization, but in fact the certification procedure is not regulated by law (with the exception of certain categories workers - librarians, aviation workers, rescuers, heads of unitary enterprises, etc.). So most organizations are guided only by local regulations. The results of the attestation for each employee are drawn up in a relevant 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 a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (as amended of December 28, 2006) "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation") .
change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant) (paragraph 4 of part 1 of article 81);
Attention: The Plenum of the Supreme Court of the Russian Federation reduces the change of the owner of the property of an organization 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 the 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 senior employees within three months from the moment the ownership right arises. If new owner will decide on the termination of 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 a direct employer (Article 20 of the Labor Code), so this rule should not be interpreted literally.
repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 8);
Attention: Such dismissal is subject to 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 absence of an explanation is not an obstacle to the application of a disciplinary sanction. It is important to remember that a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as 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 commission of the misconduct, and based on the results of an audit, audit of financial and economic activities or audit- later than two years from the date of its commission. These terms do not include the time of criminal proceedings. Only one disciplinary sanction may be applied for each disciplinary offense.
a single gross violation of labor duties by an employee (subparagraphs "a", "b", "c", "d", "e" of paragraph 6 of part 1 of article 81):
a. absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in 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 the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;
c. disclosure of legally protected secrets (state, commercial, official and other), which became 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 small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e. a violation by the employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;
commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (paragraph 7 of part 1 of article 81);
commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (paragraph 8 of part 1 of article 81);
making an unreasonable 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 of part 1 of article 81);
a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81);
submission by the employee to the employer of false documents when concluding an employment contract (clause 11, part 1, article 81);
Attention: Documents on education (if the work requires special skills), work experience, identity documents (passport) can be considered false documents.
stipulated by the employment contract with the head of the organization, members of the collegial executive body organizations (clause 13, part 1, article 81);
in connection with the conviction of the employee to a punishment that excludes the continuation previous work, in accordance with a court verdict that has entered into force (clause 4, part 1, article 83);
in connection with the expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights), if this entails the impossibility for the employee to fulfill the obligations under the employment contract (paragraph 9 of part 1 of article 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 (clause 11, part 1, article 77);
in other cases established by this Code and other federal laws(clause 14, part 1, article 81).

It is unlawful to dismiss an employee during his period of incapacity for work and during vacation (part 3 of article 81 of the Labor Code of the Russian Federation), as well as the dismissal of pregnant women, with the exception of dismissal during the liquidation of an 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 severance pay in the amount of the average monthly earnings in case of dismissal of employees for health reasons or the results of certification, in case of liquidation, as well as in case of reduction in the number or staff of the organization.

If you have undergone a procedure illegal dismissal at the initiative of the employer, you should apply to the district court for legal address organizations and write an application 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 reinstatement cases

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

the dismissal was made immediately for several different reasons;
the dismissal was made contrary to the norms of the Labor Code, which prohibit the dismissal of employees for some reason, if it is possible to transfer them to another job, as well as dismissal at the initiative of the employer during the period of 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 norms establishing the pre-emptive 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 requirements for warning 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, with the exception of cases of liquidation of the organization, as well as in connection with the expiration of the fixed-term employment contract before she has the 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 guilty behavior of the employee, except for the complete liquidation of the organization or termination of activity by the employer - individual, as well as in connection with the inconsistency of the employee with 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 at the initiative of the employer (except in cases of liquidation of the organization), carried out without the consent of the state labor inspectorate 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 when 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 contrary to the prohibition and restriction (i.e. without observing the guarantees established for them), in particular, the dismissal of a trade union member under paragraph 2; sub. "b" p. 3; paragraph 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 elected trade union collegial bodies and their deputies who are not released from their main work, without the prior consent of the relevant higher elected trade union body (Article 373 of the Labor Code of the Russian Federation). 374 of the Labor Code of the Russian Federation) and former leaders 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, except in 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 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 legal basis, for example, upon dismissal for absenteeism, and comply with the established procedure for terminating the employment contract is the responsibility of the employer. But the duty of proving the validity of the reasons for the absence of the judges is assigned to the employee.

So, according to the Decree 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 the inadmissibility of abuse of the right, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal temporary incapacity for work at the time of his dismissal from work or the fact that he is a member trade union or the head (his deputy) of the elected collegial body of the primary trade union organization, an elected collegial body of the trade union organization structural unit organization (not lower than the shop and equivalent to it), not released from the main job, when the decision on 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, accordingly, with the prior consent of the higher elected trade union body.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee.

Getting fired for drunkenness

What should an employer know in order to properly fire a drunkard? First of all, the procedure for the employer's actions when an employee appears at the workplace in a state of alcoholic (narcotic / toxic) intoxication:

Suspend an employee from work on the basis of the order of the head (wages are not charged);
Draw up an act on this fact indicating the date, time of compilation, a description of the external signs of intoxication, the signatures of several witnesses and the head. If possible, get an explanation from the employee in what is happening or fix the refusal of explanations;
Send an 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, you need to obtain the consent of the state labor inspectorate and the commission on minors;
you can not fire a pregnant woman in a state of intoxication;
it is impossible to dismiss an employee in a state of intoxication if he appeared at work in non-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" may be legitimate if the employer complies with all the formalities. Otherwise, it is necessary to apply to the court for reinstatement and recovery of wages or changing the entry in the work book. If the employer, by threats of dismissal “under the article”, inclines the employee to leave “of his own free will”, it is important to seek legal assistance in time in order to correctly defend your 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 an employee not to bring such a situation to the point of updating a resume on HeadHunter - hh.ua, and, in case of conflict situations, always be ready to change jobs.

Link

Recently, Russian Insurance companies adopted the Western practice of job loss insurance. In most cases, such insurance is not carried out voluntarily, but at the insistence of banks, along with life insurance when issuing a loan. Depending on the concluded insurance contract, the risk of dismissal at the initiative of both the employer and the employee is covered.

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