Labor Code Article 40 p 1 what payments. Dismissal of employees under clause 1, part 1, article 40 of the Labor Code (reduction in the number or staff), algorithm of actions. Signs of "drunk state": speech impediments, lack of coordination, the smell of alcoholic beverages

An employment contract concluded for an indefinite period, as well as a fixed-term employment contract before its expiration may be terminated by the employer only in cases :

  • changes in the organization of production and labor, including liquidation, reorganization, bankruptcy or re-profiling of an enterprise, reduction in the number or staff of employees;
  • discovered inconsistency of the employee with the position held or the work performed due to insufficient qualifications or health conditions that prevent the continuation of this work, as well as in case of refusal to grant access to state secrets, if the performance of the duties assigned to the employee requires access to state secrets;
  • systematic non-fulfillment by the employee without good reason of the duties assigned to him by the employment contract or the rules of the internal work schedule if the employee was previously subjected to disciplinary or social penalties;
  • absenteeism (including absence from work for more than 3 hours during the working day) without good reason;
  • absence from work for more than 4 consecutive months due to temporary disability. (This provision does not apply to maternity leave or sick leave if the law requires more than long term maintaining a job (position) with a certain disease). For employees who have lost their ability to work due to an industrial injury or occupational disease, the place of work (position) is retained until the restoration of their ability to work or the establishment of disability;
  • reinstatement of an employee who previously performed this work;
  • appearance at work in a state of intoxication, in a state of narcotic or toxic intoxication;
  • committing at the place of work the theft (including small) property of the owner, established by a court verdict that has entered into legal force or a decision of an authority whose competence includes the imposition of an administrative penalty or the application of measures of public influence;
  • conscription or mobilization of the owner - individual(employer) during a special period;
  • establishment of discrepancy between the employee of the position for which he was hired, or the work performed during probationary period.

In addition to the above general grounds for termination employment contract, which apply to all employees, are defined additional grounds for termination of the employment contract at the initiative of the employer concerning certain categories workers. According to this article, an employment contract may be terminated at the initiative of the employer in the following cases:

  • single gross violation job duties head of an enterprise, institution, organization (branch, representative office, department and other separate subdivision), his deputies, the chief accountant of an enterprise, institution, organization, his deputies, as well as officials of revenue and fees authorities who have been awarded special titles, officials of the state financial inspection and bodies state control at prices;
  • guilty actions of the head of an enterprise, institution, organization, as a result of which wages were paid to the employees of the enterprise untimely or in amounts below the minimum wage established by law;
  • guilty actions of an employee directly serving monetary, commodity or cultural values, if these actions give grounds for distrust on the part of the employer (dismissal of distrust);
  • commission by an employee performing educational functions of an immoral act incompatible with the continuation of this work;
  • stay contrary to the requirements in direct submission to a loved one;
  • termination of powers of officials in case of repeated violation of the requirements of the legislation on licensing, on the issuance of permits or in the provision of administrative services.

Each of these grounds for dismissal of employees at the initiative of the employer is discussed below. .

Restrictions on the dismissal of employees at the initiative of the employer

Obtaining Consent trade union body to dismiss an employee

If the dismissal of the employee was carried out by the employer without applying to the trade union body, then in the event of a judicial review of the dispute, the proceedings on the case are suspended, the court requests the consent of the trade union body and, after receiving or refusing it, considers the dispute on its merits.

In what cases is the consent of the trade union body to dismissal not required?

Dismissal for systematic non-fulfillment by an employee without good reason of his duties (clause 3 of article 40 of the Labor Code)

Upon dismissal of an employee in the order it is necessary to indicate not only a specific offense , for which he is dismissed, but also all disciplinary offenses previously committed by the employee, for which he was brought to disciplinary responsibility, since this article is the basis for the dismissal of the employee precisely for systematic non-fulfillment of labor duties .

It should be noted that the basis for terminating the employment contract is the absence of the employee at work for a specified period, but the return to work interrupts this period for at least one day, and in the future the four-month period must be calculated anew . At the same time, periods of absence from work lasting less than four months cannot be summed up (see).

The current arbitrage practice permits the dismissal of an employee only when necessary in dismissal, which is understood as such a situation in which the replacement of a disabled employee is necessary, and it is not possible to distribute his duties among other employees or to hire another employee in his place under a fixed-term employment contract.

It should be noted that the dismissal of an employee is the right of the employer, not his obligation (See the newspaper "Work and salary" No. 44 (672) of November 25, 2009, p. 17). Therefore, if the employer does not have a production need, he is not obliged to dismiss the employee in the event of his prolonged illness and absence from work for more than four consecutive months.

Labor contract cannot be terminated with an employee who lost his ability to work due to injury or occupational disease. He retains the place of work (position) until the restoration of working capacity or the establishment of disability.

Dismissal in connection with the reinstatement of the former employee (clause 6 of article 40 of the Labor Code)

Termination of an employment contract on the basis is possible in the event that a previously dismissed employee is reinstated to his previous job by a court decision, the initiative of the employer, or the requirement of the relevant body for supervision of compliance with labor legislation. However, such dismissal of an employee is permissible only if it is impossible, with his consent, to transfer to another job (position).

Reinstatement at work is allowed if the former the employee was dismissed without legal grounds , including without the consent of the trade union body, if obtaining such consent in accordance with the law is necessary, as well as in the event if the employee was dismissed from work due to unlawful conviction .

At the same time, it should be borne in mind that the work (position) performed by him earlier is provided to the person no later than one month from the date of application at the place previous work if such an appeal was received within 3 months from the date of entry into force of the acquittal or the issuance of a decision (determination) to close the criminal case due to the absence of corpus delicti or the failure to prove the participation of the accused in the commission of the crime.

At the same time, the Supreme Court of Ukraine considers impossible reinstatement of an employee in the position previously occupied by him, not only in the event of the liquidation of the enterprise, institution, organization and reduction of the position, but also in the presence of other reasons that prevent the restoration of the employee, for example, if the position is occupied by an employee who, according to current legislation cannot be dismissed (see the newspaper "Practice and salary" No. 48 (772) of December 28, 2011, p. 12). In this case, such person must be provided with another equivalent job (position).

In addition, the legislation of Ukraine it is not possible to terminate the employment contract with a newly hired employee due to the return of an employee who resigned in connection with the election to an elective position at the end of the term of office. An exception is the case when a newly hired employee was hired only for the period of the specified employee's elective position. It should be noted that dismissal on the basis of will be recognized as legal only if it is impossible to transfer the employee with his consent to another job .

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The article also highlights the following questions:

    • Dismissal for appearing at work in a state of intoxication, in a state of narcotic or toxic intoxication (clause 7 of article 40 of the Labor Code)
    • Dismissal in connection with the commission of theft at the place of work (clause 8 of article 40 of the Labor Code)
    • Dismissal of an employee in case of conscription or mobilization of an employer - an individual during a special period (clause 10, article 40 of the Labor Code)
    • Dismissal in case of establishing the inconsistency of the employee with the position for which he was hired, or with the work performed during the probationary period (clause 11, article 40 of the Labor Code)
    • Dismissal due to a single gross violation of labor duties (clause 1, article 41 of the Labor Code)
    • Dismissal of the head of the enterprise due to late payment of wages or payment in the amount below minimum wage(clause 11, article 41 of the Labor Code)
    • Dismissal due to loss of confidence (clause 2 of article 41 of the Labor Code)
    • Dismissal for committing an immoral offense (paragraph 3 of article 41 of the Labor Code)
    • Dismissal of employees who, contrary to the requirements of the Law of Ukraine "On the Prevention of Corruption", are directly subordinate to a close person (clause 4, article 41 of the Labor Code)
    • Dismissal in connection with the termination of powers of officials (clause 5 of article 41 of the Labor Code)
    • Dismissal of officials in case of repeated violation of the legislation on licensing, on the issuance of permits and on the provision of administrative services (part 2 of article 41 of the Labor Code)

Andriy Bodnarchuk, Legal Counsel of the Law Firm "Law Company "Sokolovsky and Partners"

This publication covers the issues of dismissal under clause 1, part 1, article 40 of the Labor Code (reduction in the number or staff of employees)

During the preparation of the publication, the following legislative and other regulatory legal acts were used:

2. Law of Ukraine "On employment";

3. Law of Ukraine "On wages";

4. Law of Ukraine "On trade unions, their rights and guarantees of activity";

5. Decision of the Plenum Supreme Court Ukraine "On the practice of considering labor disputes by courts".

In the activities of any enterprise there are white and black stripes. With the onset of the financial crisis, most entrepreneurs have reduced production volumes, sales of goods, and therefore it is impossible to maintain a pre-crisis staff of employees, so the management of such business entities quite often decides to reduce the number or staff of employees. We have developed an approximate algorithm for the actions of the owner of the enterprise, who decided to dismiss employees under clause 1, part 1, article 40 of the Labor Code.

In order to dismiss an employee on the basis of clause 1, part 1, art. 40 Labor Code of Ukraine, it is necessary:

1. The owner or a body authorized by him to issue an order to reduce positions. With the specified order, against receipt, all employees who may be dismissed in the future should be familiarized.

Based on the proposed changes to staffing(meaning the reduction of certain positions), it is necessary to determine specific workers who hold redundant positions and are subject to dismissal.

2. Each employee who is subject to dismissal must be notified against receipt, no later than 2 months before the date of dismissal, of the future dismissal.

When determining the circle of employees who are subject to dismissal due to job cuts, it must be taken into account that the prevailing right to stay at work is granted to employees with higher qualifications and labor productivity (taking into account the fact that the employee has higher education, work experience, advanced training courses, etc.) (Article 42 of the Labor Code).

If there are “open” vacancies at the enterprise, the employee is offered to take vacant position. If the employee refuses to be transferred to another position, an appropriate act of refusal is drawn up.

3. In order to dismiss an employee of the enterprise, it is necessary to notify the primary trade union organization about this. For the dismissal of employees, in connection with a reduction in the number or staff of employees, the trade union organization (enterprise), of which the employee is a member, must give consent. The owner or the body authorized by him has the right to terminate the employment contract no later than one month from the date of receipt of the consent of the primary trade union organization(trade union representative).

4. Not later than two months before the dismissal of employees, the enterprise sends public service employment report on the planned layoffs of workers.

5. At the final stage, the owner, or a body authorized by him, on the basis of an order to reduce positions (see clause 1), issues, in the prescribed manner, an order (orders) to dismiss specific employees (in accordance with the number of employees who are dismissed) .

On the day of dismissal, the employee is given: employment history with a record of dismissal and a copy of the dismissal order.

On the day of dismissal, a full settlement is made with the employee, including debts for wages, compensation for days unused vacation And severance pay, the amount of which is determined by Art. 44 Labor Code of Ukraine.

6. The personnel department, at the request of the employee, must issue the latter a certificate of his work at the enterprise, indicating the specialty, qualifications, position, working hours and wages.

7. After the dismissal of the employee, the personnel service must provide the employment center, for ten calendar days, counting from the day of dismissal, a list of actually dismissed employees.

It should be noted that this algorithm actions are approximate and may not take into account the nuances of dismissal under paragraph 1 of part 1 of article 40 of the Labor Code at a particular enterprise, therefore we advise you to contact specialists in labor law.

Lawyers and advocates of the Sokolovsky & Partners Law Firm have extensive experience in providing comprehensive legal services to companies that are reducing the number or staff of employees. We have "worked out" the documents (orders, notifications, protocols, acts, etc.) that are used personnel service companies when they lay off employees. The courts have repeatedly confirmed the legality of the dismissal of employees, under clause 1, part 1, article 40 of the Labor Code, who worked at enterprises to which our law firm provided legal assistance.

Not so often, but still, the trade union committees receive representations from the administration about giving consent to dismissal for the employee’s systematic failure to fulfill, without good reason, the duties assigned to him by the employment contract or internal labor regulations, if the employee has previously been subjected to disciplinary or social penalties ( paragraph 3 of Article 40 of the Labor Code of Ukraine).

According to labor law, such dismissal can be made only under certain conditions:

  1. The employee does not perform or improperly performs his labor duties arising from the employment contract, internal labor regulations. I draw your attention to the fact that in each insert to the map functional duties(for workers) and official duties(for PCC) there are two sections linked to each other. It is a "duty" and a "responsibility". In other words, for every obligation there may (under certain circumstances) be responsible. That is punishment. In the form of a disciplinary sanction (reprimand) or partial deprivation of the bonus. The Labor Code does not contradict the simultaneous application of a disciplinary sanction and a reduction in the size of the bonus.
  2. Failure to perform or improper performance of labor duties without good reason (intentional or negligent). In order to avoid incrimination by the administration of this, one should act in full accordance with the duties prescribed in normative documents(inserts or instructions). If, for example, the team that arrived to carry out the PPR cannot start work at the set time due to the fact that the technological unit did not stop at the specified time, then both the management of their workshop and the customer’s workshop must be notified of this fact. Or, for example, in the process of work it turns out that for its execution it is necessary additional tool. Then you need to notify your leader (foreman, foreman) about this and receive certain instructions. But in no case, do not wait for how and who will solve the problem. For both in the map of functional duties and in the internal labor regulations, an obligation is written out to act in problem situations.
  3. Non-performance or improper non-performance must be systematic. Those who systematically violate labor discipline include those employees who previously had penalties for violation labor discipline and violated it again within a year from the date of application of the penalty for the first violation. Let's say March 17, 2014. the employee was reprimanded for being late for work, and in September of the same year, through his fault, the production of defective products was allowed. In this case, two actions of the administration are possible:

Reprimand or initiate dismissal for systematic violation of labor discipline. Although, as a rule, the system begins to be applied in the presence of two reprimands. But exceptions are quite possible and acceptable.

  1. The imposition of a disciplinary sanction is allowed only within a month from the moment the offense was discovered.

For disciplinary action officials, endowed with the right to use it, are obliged to request a written explanation from the violator of labor discipline. This action should be emphasized. The fact is that quite often employees mistakenly believe that by refusing written explanations, they deprive the administration of the possibility of applying a disciplinary sanction. Quite the contrary, and rather. Refusal of explanations, firstly, makes it impossible for the employee himself to state the reasons and arguments that prevented him from performing the assigned work, and secondly, the fact of refusal will be formalized by an act without fail. That will give grounds for issuing an order or an order for punishment.

You should both know and remember that for each violation of labor discipline, only one disciplinary sanction can be applied. Let me remind you once again that partial or complete deprecation does not apply to disciplinary action. This requirement(one penalty for one violation) indicates that having reprimanded the employee for a misconduct, the owner no longer has the right to talk about dismissal for what he did. For according to the Labor Code of Ukraine, both reprimand and dismissal are disciplinary punishments.

And the last. When choosing the type of penalty, no doubt, the severity of the misconduct committed and the harm caused by it, the circumstances under which it was committed, as well as the previous work of the employee, must be taken into account.

A worker was involved in an accident and was injured as a result. She was issued a certificate of incapacity for work, the term of which is about four months. She can't go to work and doesn't want to quit. Is it possible to dismiss her under paragraph 5 of article 40 (Further- Labor Code)?

The dismissal of an employee at the initiative of the owner is not allowed during the period of his temporary disability. Paragraph 5 of Article 40 of the Labor Code is an exception to general rule under certain conditions. Dismissal under this item is possible if the employee, as a result of temporary disability, is absent from work for more than four consecutive months or more established by law a long period during which he retains his place of work (position) in case of certain diseases, such as tuberculosis.

Dismissal under paragraph 5 of Article 40 of the Labor Code is the right, and not the obligation of the employer, he may not dismiss an employee who has been sick for more than four months.

Article 40 of the Labor Code defines the grounds for dismissal at the initiative of the employer, and therefore, accordingly, the consent of the employee is not provided. In the event that the dismissed employee later disputes such a decision, the employer must be prepared to prove that the dismissal of the employee is caused by the interests of production and that it is impossible to replace the absent employee with another one or redistribute his work among other employees.

To dismiss an employee on this basis, the prior consent of the elected body of the trade union that operates at the enterprise and of which the employee is a member is required.

Therefore, the employer, the day after the expiration of four months of the employee's absence from work, can issue a dismissal order, having previously obtained the consent of the trade union. On the same day, you need to properly calculate and issue a work book.

You should first make sure that the cause of the injury is not an industrial injury, the injury was not received at work or on the way home from work. In this case, the employer does not have the right to dismiss the employee until the restoration of working capacity or the establishment of disability.

Another restriction on dismissal on this basis is if the employee belongs to the category of persons defined by Article 184 of the Labor Code (pregnant women and women with children under the age of three (up to six years - part six of Article 179), single mothers with a child in under the age of 14 or a disabled child), whose dismissal at the initiative of the owner is not allowed.

If a sick worker starts work for at least one day, and then again opens a disability certificate, the four-month period must be counted again.

 

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