The main articles of dismissal of an employee. For what an employee can be fired according to the law - all the reasons and design features. Dismissal during downsizing

The death of an employee at the workplace, or outside it, is an unpleasant circumstance not only for relatives and friends, but also for employers and personnel specialists, who often do not know what to do if an employee dies. First of all, in cases where an employee has died, it is necessary to understand how to dismiss him from the state, because he actually ceases to be in an employment relationship. But it should be understood that in addition to the dismissal itself, there are also a number of other nuances that must be taken into account in cases where an employee of the organization dies.

An employee has died - legal regulations and provisions of the Labor Code of the Russian Federation

First of all, when an employee died at work, the employer and those responsible for personnel records management should familiarize themselves with the provisions of the Labor Code of the Russian Federation. So, in this matter, the following regulatory provisions of the Labor Code of the Russian Federation play a key role:

Art.83. The key standard regarding the situation when an employee died - according to this article, the death of one of the parties to an employment relationship is an ultimatum justification for, regardless of other factors.
Art.84.1. It considers the general principles, according to which the concluded labor contracts are terminated. However, implementing them when an employee has died can be difficult. In this case, it must be understood that the specified obligations of the employer remain in relation to the heirs or manager of the deceased.
Art.127. It assumes the mandatory payment of compensation for all days of unused vacation by the worker and does not provide for death as a basis for the employer's refusal to provide these payments.
Art.141. Considers the specific situation of the payment of a worker's salary after his death to his relatives or dependents, establishing binding deadlines.

However, this issue is considered not only by the provisions of the Labor Code. Also, it is necessary to keep in mind the following regulations that directly consider the main procedural actions when an employee died:

Article 217 of the Tax Code of the Russian Federation. It defines the principles applicable to payments made by an employer in connection with the death of an employee. Including - material assistance, payment of salaries and fulfillment of other obligations of the employer in connection with labor relations.
Article 1183 of the Civil Code of the Russian Federation. Its principles touch upon the issues of inheritance of the payments due to the employee and their distribution among persons close to him.

The norms of the Labor Code and the Civil Code, in the context of receiving payments due to an employee who has died, are in conflict and contradiction with each other, which is another important nuance, which will be discussed separately below.

An employee has died - how to fire him, step by step instructions

First of all, when an employee has died, the main question that worries HR specialists and the employer is how to fire him. In this case, the procedure is quite simple, but mandatory to follow - if it is violated, the employer may be subject to administrative liability. In order to avoid violations of the law when an employee dies, this simple instruction will help:

This procedure is relevant for all situations where an employee has died. However, this aspect of labor relations has many individual nuances and features that should definitely be taken into account by personnel officers.

The employee died - the nuances and features of the actions of the employer

The question of how to dismiss an employee who has died is solved quite simply. But in connection with the death of an employee, a number of controversial situations may arise in which it may be difficult to find an exact solution even for an experienced HR specialist, not to mention cases when the employer himself is involved in the preparation of personnel documentation and does not know all the features of actions in this case. The most common cases will be discussed next.

Filling out the time sheet upon the death of an employee

It is far from always that the employer receives information that an employee has died immediately upon the fact of his death. In most cases, it turns out that the employee does not appear for work for several days and only later does the personnel department learn about his death. It must be remembered that in the absence of an employee for unexplained reasons, absenteeism should not be indicated in the time sheet. You should put the designation HH for each day of absence.

The basis for the dismissal due to the fact that the employee has died can only be a death certificate issued by the registry office. Reporting a death by telephone or mail, or being notified by law enforcement or medical authorities, cannot be grounds for dismissal. If the employee died abroad, then his death must still be first confirmed by the Russian registry office before the dismissal procedure is carried out.

In cases where information about the death of an employee is provided, it is necessary to make an adjustment to the time sheet, because the contract is terminated and the dismissal is carried out on the date when the employee terminated the employment relationship, which means that at the time of his absence from work, he could no longer be in them with the employer . The adjustment is carried out in accordance with the law "On Accounting".

The procedure for issuing wages of a deceased employee when applying to several persons

The issues of providing wages upon the death of an employee are regulated simultaneously by the provisions of the Labor Code of the Russian Federation and the Civil Code of the Russian Federation, which, taking into account various information in articles 141 of the Labor Code of the Russian Federation and 1183 of the Civil Code of the Russian Federation, can lead to controversial situations. Thus, the Labor Code requires that the calculation be issued exclusively to the relatives or dependents of the employee. While the Civil Code provides for the issuance of funds exclusively to family members who directly lived with the employee.

The legislation does not give direct instructions on what procedure the employer should be guided by. Accordingly, in order to avoid possible problems and disputes, it is recommended to ensure the issuance of the employee's salary and documents to the first person who applies, who is a family member or dependent of the employee. In such a situation, the employer will not bear any responsibility for their actions, and possible disputes over the inheritance of these amounts will become a problem for the relatives of the deceased themselves.

However, there are situations in which several relatives contact the employer at the same time. The legislation in this case does not provide for the possibility of dividing the funds due to the employee, and the refusal of one of the relatives who have the right to receive the payment is also illegal. Therefore, the employer in this case should be offered to pay this amount to relatives in court if they cannot reach an agreement with each other. Or - to give funds to someone who provide the original death certificate.

The employer must keep the funds to provide them to their relatives up to four months from the date of death. It is during this period that they are entitled to receive them directly from the employer. If they are not applied within the specified time, the funds are transferred to the notary and inherited in the manner prescribed by law.

The employee died - to whom to pay wages if there are no relatives

There are situations when an employee has died, and he simply has no relatives, and the employer, as well as the accounting department, do not know what to do in this case. So, the employer cannot appropriate the funds of the deceased, but their presence on his accounts may cause additional questions and claims from the regulatory authorities.

In this case, the solution of the issue involves the procedure for depositing amounts and transferring them to a separate bank account, or providing them to a notary who manages the inheritance of the deceased. In the absence of a relative and a written will, the management of the inheritance will be entrusted to a public notary. Accordingly, he will actually dispose of the funds of the deceased, subsequently transferring them to the legal heirs or to the state in their absence.

If a will was drawn up in the name of a third person who is not a relative, the employer also cannot give him the wages of the deceased and is obliged to carry out the procedure for depositing and transferring funds to a notary who, upon the distribution of the inheritance, will transfer the payment to the heir.

If no one took the work book of the deceased employee, the employer is obliged to place it in the archive and ensure proper storage for 75 years after the death of the worker, and only after this period it can be disposed of.

Taxation of payments when an employee dies

The issues of taxation of payments due to the employee at the time of death are also relevant for Russian employers. The provisions of the Tax Code in this case allow you to get rid of unnecessary problems. It is enough to follow a simple algorithm and basic principles set out in the Tax Code of the Russian Federation:

Accordingly, the employer should note that the full amount of wages without any deductions and fees must be provided to the relatives or the notary.

Death in the workplace and its design

Situations when an employee overtakes are quite rare, but they do occur in labor practice. In this case, many personnel specialists do not know how to properly formalize the dismissal of an employee and carry out the final calculation of the funds due to him.

On the day of death, if the employee has started work, he should calculate the hours actually worked. The final settlement upon the death of an employee is carried out taking into account the time worked by him on the day of death. The day of dismissal is also considered the same day.

If the employee died on the way to work, then on that day it is also necessary to put the designation HH in the time sheet. In the case when an employee dies at the end of the working day, the day of dismissal is also considered the day of death, but it is calculated as for a fully worked working day.

Responsibility for non-payment of benefits due to the employee after death

As in the case of delayed payment of wages or incomplete payment of wages, refusal to fulfill the obligations imposed on the employer leads to incurring by him. So, he can be brought to it under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, which will entail an administrative fine. In addition, compensation is also expected to be paid for each day of delay in payment in accordance with the principles of the Labor Code of the Russian Federation, which consider the liability of the employer.

In the event that non-payment of the salary of the deceased occurs for a long time after the relatives apply for it, and there is mercenary intent in the actions of the employer, then criminal liability for such an offense is also possible.

Dismissal on death cannot be recognized as illegal, and payment for involuntary absenteeism, even if the employer fails to fulfill its obligations, is not made and is not taken into account when calculating the amount of the total debt.

Financial assistance in case of death of an employee

Russian legislation allows employers to provide additional guarantees to their employees and their relatives. Including - on payment in case of death of the employee himself. This issue is regulated in various ways. So, if the enterprise has local regulations obliging the employer to provide such a payment, then he is obliged to provide it to the relatives of the deceased in full.

If local documents give the employer the right, but not the obligation to make such a payment, the decision to provide assistance is made by the head himself. In addition, even in the absence of these local documents, the employer can independently initiate the process of providing financial assistance by a separate order.

Taxation of material assistance provided in connection with the death of an employee to his relatives is not carried out, regardless of the amount of payment.

The employee died on vacation or on the weekend

If the employee died on vacation, as well as during a weekend or holiday, then the day of dismissal is considered to be the day of death. However, there are various nuances associated with the payment of vacation pay due to the employee. In the event of his death, they must be recalculated.

If the leave was provided in advance, then it is impossible to withdraw the overpaid funds by deducting them from the salary and payments to the relatives of the deceased.

Severance pay on the death of an employee

If a dismissal procedure has already been initiated with respect to an employee, for example, due to the liquidation of an organization or a reduction in staff, or at the initiative of the employee himself, then upon the death of such an employee, all these procedures are considered invalid.

That is, the employment relationship is terminated precisely because of the death of the employee. Accordingly, all rights to receive severance pay from the employee are lost, and it should not be accrued, regardless of other circumstances.

Sometimes the relationship between employer and employee ends. That is, the employee is fired. This can happen both at the request of the employee and at the initiative of the employer. How to dismiss an employee and properly execute all the documents?

What are the exit options?

To begin with, the law provides for three options for dismissal:

at the initiative of the employer
at the initiative of the employee
by agreement of the parties

It is clear that the first option involves unilateral dismissal for some violations on the part of the employee, for example, systematic absenteeism, as well as during or downsizing. As for the dismissal at the initiative of the employee, then there is a statement of resignation at his own request, which the employer is obliged to satisfy. And dismissal by agreement of the parties can be used if the employee does not suit the employer, but he does not want to leave of his own free will, but formal reasons for dismissal.

Dismissal by agreement of the parties

Termination of an employment contract by agreement of the parties is a quick and concise procedure. It takes place on the basis of Article 78 of the Labor Code and can be carried out at any time. By agreement of the parties, even those employees who are on vacation or on sick leave can be fired. To start the procedure, the employee must submit an application addressed to the manager, and if the employer is the initiator, he sends the employee a proposal to terminate the contract. Then (if the parties have come to an agreement), an Agreement is drawn up, an order for dismissal is issued, and the entry in the work book indicates that the dismissal was made on the basis of clause 1 of article 77 of the Labor Code of the Russian Federation.

Dismissal at the initiative of the employer

The basis for the dismissal of an employee at the initiative of the employer can be various reasons. For example, the desire to reduce the company's costs, downsizing, the inconsistency of the employee with the position held, or a change in ownership. But the most common reasons for such a dismissal are violations of discipline by an employee - absenteeism, appearing at work in a state of intoxication, being late and other violations. Now that it’s clear why you can fire an employee, let’s figure out how to do it correctly.

Dismissal due to violation of labor discipline

Before punishing an employee for violating discipline, you should make sure that his employment contract clearly spells out the mode of work, place of work and read the points. It may seem strange to some, but there are companies that do not indicate a specific place of work, since the activities of the company and, accordingly, the work of employees are related to the performance of duties at different facilities that cannot be specified in advance when hiring a person. How to dismiss an employee for absenteeism if he works under such an agreement? No, because the papers do not indicate a specific place of work. But if the working conditions in it are clearly regulated, then if they are violated, the employer can bring the employee to disciplinary responsibility. Of course, it is possible to dismiss an employee for a single violation of labor discipline. But only if it's serious enough.

For example, going to work drunk (or in a state of drug intoxication), theft, embezzlement, damage (accidental or intentional) of someone else's property, disclosure of commercial or state secrets. It is also possible to be dismissed for absenteeism or absence from the workplace for four hours. But if an employee is absent from work before dismissing him, it is better to make sure that he does not have a certificate of incapacity for work. As for minor violations, such as being late, then only the onset of disciplinary liability is possible. In this case, the procedure for the employer is as follows:

detection of a violation (this is done within the established time frame in accordance with Article 193 of the Labor Code)
fixing this violation
obtaining an explanation from the employee regarding the violation (the employee must write an explanatory note on the fact of the violation)
issuing an order of the head on bringing to disciplinary responsibility (announcement of a warning, remark, reprimand)
bringing the order to the attention of the employee

If a repeated violation of discipline follows, then, as a rule, a severe reprimand is announced (such punishments are still associated with the deprivation of bonus payments), and for the third time the employee is threatened with dismissal.

Dismissal during downsizing

If we are talking about downsizing, the law clearly regulates the procedure and rules for the dismissal of employees. For example, when reducing one of the equivalent positions, a more qualified employee should be left at work (provided that their social status is equal). And if the qualifications of the workers are the same, but the social status is not, then the management does not have the right to dismiss: single mothers, the only one working in the family, an employee who was injured or injured at the workplace, disabled people, veterans of the Second World War, labor and hostilities, mothers, having children under 3 years old, pregnant women, participants in the resolution of collective disputes, as well as those employees who receive on-the-job training from the enterprise. The same employees who fall under the layoff for staff reduction, the management is obliged to notify about this two months in advance and offer (if possible) another job. If the employee agrees to move to a new job, this is documented by an internal transfer, and if not, then he writes a statement asking him to dismiss him due to a reduction in staff and he is fired with all the due payments.

Dismissal upon liquidation of an enterprise

If there is a liquidation of the enterprise, then all employees are subject to dismissal. How to dismiss an employee during liquidation? First, you need to warn all employees two months in advance in writing in accordance with Article 180 (part 2) of the Labor Code. This applies to both main workers and part-time workers. The notice of dismissal is issued to each employee, and the second copy, brought against signature, is filed with the order. After two months have elapsed, the administration of the enterprise issues an order to dismiss employees in the T-8 form, pays severance pay, compensation for unused vacation and wages for the time actually worked. The calculation is made on the last working day, and a corresponding entry is made in the work book. In addition, employees dismissed in connection with the liquidation of the enterprise are entitled to the payment of average monthly earnings for the period of employment, but not more than three months. This rule does not apply to part-time workers, seasonal workers, as well as those with whom a fixed-term employment contract was concluded (for a period of not more than two months).

Job inconsistency

The issue of compliance or non-compliance with the position held is decided by the attestation commission of the enterprise. If the result of the certification, which is carried out at enterprises in order to check the professional suitability and qualifications of employees, is unsatisfactory, then the employee may be offered to move to another position. If he refuses, the employer has the right to dismiss the employee as inappropriate for the position held, but no later than two months after the certification. In the event of dismissal, both the order and the work book indicate the wording "due to the inconsistency of the position held and the refusal to transfer to another position."

Who can't be fired by an employer?

An employer cannot dismiss an employee on vacation, regardless of what kind of vacation he is on: annual paid leave, parental leave, educational or unpaid leave. The only exception is the liquidation of the institution. It is also impossible to fire an employee on sick leave. This applies to both essential workers and those who work part-time, as well as home-based workers.

In addition, there are certain categories of workers who either cannot be fired at all at the initiative of the employer, or it is quite difficult to do so. These include:

Category of workers	Measure	Exception	Norm
Pregnant women		Organization liquidation	Part one Art. 261 of the Labor Code of the Russian Federation
Women with children under the age of three	Cannot be dismissed at the initiative of the employer	Liquidation of the organization; employee's wrongdoing	Part four of Art. 261TK RF
Single mothers raising children under the age of 14 or children with disabilities under the age of 18, as well as other persons raising such children without a mother	Cannot be dismissed at the initiative of the employer	Liquidation of the organization; employee's wrongdoing	Part four of Art. 261 of the Labor Code of the Russian Federation
Minor workers under the age of 18	Can be fired only with the consent of the labor inspectorate and the commission on minors	Organization liquidation	269 of the Labor Code of the Russian Federation
Trade union members, elected trade union workers	You can be fired under paragraphs 2, 3 and 5 of the first article. 81 of the Labor Code of the Russian Federation only when taking into account the motivated opinion of the trade union	If the trade union does not provide a reasoned opinion within seven days	Part two of Art. 82, 373, 374 of the Labor Code of the Russian Federation
Representatives of employees participating in collective bargaining and in resolving collective labor disputes	Can be dismissed only with the consent of the body that authorized them to represent	Guilty actions of the representative	Articles 39, 405 of the Labor Code of the Russian Federation

Dismissal at the initiative of the employee

If the employee himself decides to leave the enterprise, he has the right to apply for dismissal of his own free will, regardless of what kind of employment contract (fixed-term or indefinite) he concluded when applying for a job. The application may indicate the reasons for dismissal (enrolling in an educational institution, moving to another locality, caring for a child until he reaches 14), or may not be. In any case, to the question of under which article to dismiss an employee, there is only one answer - under Art. 77 of the Labor Code of the Russian Federation.

In any organization, voluntary dismissal involves working out within two weeks, but this period can be reduced by the employer. At the end of the working period, a dismissal order is issued, which is brought to the employee against signature, an entry is made in the work book and a full payment of wages. In addition, the employee is given all the necessary documents: salary certificates, copies of the order to transfer to another job (if any), the order to dismiss, the 2-NDFL certificate and other documents that the employee requests.

The procedure for dismissal of one's own free will also implies the transfer of cases to another employee, if necessary. For refusal to transfer cases in the prescribed manner, the employer may punish the employee, for example, by depriving him of the bonus, but cannot prevent his dismissal.

When dismissing at will, it is worth paying attention to the fact that the employee has the right to change his mind before the expiration of the term of dismissal. In this case, he may withdraw his application and continue to perform his duties. But if another person has already been invited to his place in writing, who cannot be refused to conclude an employment contract, the dismissal remains in force.

How to fill out work book

The correctness of the wording in the work book matters. So it's a good idea to have a little cheat sheet handy that will help you avoid corrections in the document.

Paragraph and article of the Labor Code	Entry in the workbook
Paragraph 1 of Art. 77	The employment contract was terminated by agreement of the parties, paragraph 1 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 2 of Art. 77	The employment contract was terminated due to the expiration of the employment contract, paragraph 2 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 3 of Art. 77	The employment contract was terminated at the initiative of the employee, paragraph 3 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 5 of Art. 77	The employment contract was terminated due to the transfer of the employee at his request to work in the Limited Liability Company "LLC", paragraph 5 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 6 of Art. 77	The employment contract was terminated due to the employee's refusal to continue working in connection with the change of ownership of the organization's property, paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation The employment contract was terminated due to the employee's refusal to continue working due to a change in the organization's jurisdiction, paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation The employment contract was terminated due to the employee's refusal to continue working in connection with the reorganization of the organization, paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 7 of Art. 77	The employment contract was terminated due to the employee's refusal to continue working due to a change in the terms of the employment contract determined by the parties, paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation
Clause 8 of Art. 77	The employment contract was terminated due to the employee's refusal to transfer to another job, necessary for him in accordance with the medical report, clause 8 of part 1 of article 77 of the Labor Code of the Russian Federation
Paragraph 9 of Art. 77	The employment contract was terminated due to the employee's refusal to be transferred to work in another locality together with the employer, paragraph 9 of the first part of Article 77 of the Labor Code of the Russian Federation
Paragraph 11 of Art. 77	The employment contract was terminated due to violation of the rules for concluding an employment contract established by the Labor Code, paragraph 11 of the first part of Article 77 of the Labor Code of the Russian Federation
Article 71	The employment contract was terminated at the initiative of the employer due to an unsatisfactory test result, part one of Article 71 of the Labor Code of the Russian Federation
Paragraph 1 of Part 1 of Art. 81	The employment contract was terminated at the initiative of the employer in connection with the liquidation of the organization, paragraph 1 of the first part of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer in connection with the termination of activity by an individual entrepreneur, paragraph 1 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 2, part 1, art. 81	The employment contract was terminated at the initiative of the employer due to the reduction in the number of employees of the organization, paragraph 2 of the first part of article 81T of the mining code of the Russian Federation
Clause 3, part 1, art. 81	The employment contract was terminated at the initiative of the employer due to the inconsistency of the employee with the position held due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer due to the inconsistency of the employee with the work performed due to insufficient qualifications, confirmed by the results of certification, paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 4, part 1, art. 81	The employment contract was terminated at the initiative of the employer in connection with the change of ownership of the organization's property, paragraph 4 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 5, Part 1, Art. 81	The employment contract was terminated at the initiative of the employer due to the employee's repeated failure to fulfill his labor duties without good reason, clause 5 of the first part of Article 81 of the Labor Code of the Russian Federation
Subparagraph “a” of paragraph 6 of part 1 of Art. 81	The employment contract was terminated at the initiative of the employer due to absenteeism, subparagraph "a" of paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation
Subparagraph "b" of paragraph 6 of part 1 of Art. 81	The employment contract was terminated at the initiative of the employer in connection with the appearance of the employee at work in a state of intoxication, subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
Subparagraph “c” of paragraph 6 of part 1 of Art. 81	The employment contract was terminated at the initiative of the employer due to the disclosure of state secrets that became known to the employee in connection with the performance of labor duties, subparagraph "c" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer due to the disclosure of a trade secret that became known to the employee in connection with the performance of labor duties, subparagraph "c" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer due to the disclosure of official secrets that became known to the employee in connection with the performance of labor duties, subparagraph "c" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
Subparagraph "g" of paragraph 6 of part 1 of Art. 81	The employment contract was terminated at the initiative of the employer in connection with the theft of someone else's property at the place of work, established by a valid court verdict, subparagraph "d" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer in connection with the commission of damage to someone else's property at the place of work, established by a court verdict that has entered into force, subparagraph "d" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
Subparagraph "e" of paragraph 6 of part 1 of Art. 81	The employment contract was terminated at the initiative of the employer in connection with the employee's violation of labor protection requirements, which entailed grave consequences, subparagraph "e" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation The employment contract was terminated at the initiative of the employer in connection with the employee's violation of labor protection requirements, which created a real threat of serious consequences, subparagraph "e" of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation
Clause 7, Part 1, Art. 81	The employment contract was terminated at the initiative of the employer in connection with the commission of guilty actions by the employee directly servicing monetary values, which gave rise to the loss of confidence in him on the part of the employer, paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 8, Part 1, Art. 81	The employment contract was terminated at the initiative of the employer in connection with the commission by the employee performing educational functions of an immoral offense incompatible with the continuation of this work, paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 9, Part 1, Art. 81	The employment contract was terminated at the initiative of the employer in connection with the adoption of an unreasonable decision that entailed a violation of the safety of the organization's property, paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 10, part 1, art. 81	The employment contract was terminated at the initiative of the employer in connection with a single gross violation of labor duties, paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation
Clause 11, Part 1, Art. 81	The employment contract was terminated at the initiative of the employer in connection with the submission by the employee to the employer of false documents at the conclusion of the employment contract, paragraph 11 of the first part of Article 81 of the Labor Code of the Russian Federation
Paragraph 1 of Part 1 of Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the conscription of the employee for military service, paragraph 1 of the first part of Article 83 of the Labor Code of the Russian Federation The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the assignment of the employee to alternative civilian service, paragraph 1 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 3, part 1, art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, due to non-election to the position, paragraph 3 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 4, part 1, art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the conviction of the employee to a punishment that precludes the continuation of the previous work, in accordance with the court verdict, which has entered into force, paragraph 4 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 5, Part 1, Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the recognition of the employee as completely incapable of working in accordance with a medical report, paragraph 5 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 6, Part 1, Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the death of the employee, paragraph 6 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 8, Part 1, Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, due to disqualification, which precludes the employee from fulfilling the obligations under the employment contract, paragraph 8 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 9, Part 1, Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the deprivation of the employee of the special right to drive a vehicle, which made it impossible for the employee to fulfill the obligations under the employment contract, paragraph 9 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 10, part 1, art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the termination of access to state secrets, paragraph 10 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 11, Part 1, Art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the cancellation of the court decision to reinstate the employee at work, paragraph 11 of the first part of Article 83 of the Labor Code of the Russian Federation The employment contract was terminated due to circumstances beyond the control of the parties, in connection with the recognition of the decision of the state labor inspectorate to reinstate the employee at work, paragraph 11 of the first part of Article 83 of the Labor Code of the Russian Federation
Clause 12, part 1, art. 83	The employment contract was terminated due to circumstances beyond the control of the parties, in connection with bringing the total number of employees who are foreign citizens in line with the permissible share of such employees established by Decree of the Government of the Russian Federation of December 31, 2008 N 1099, paragraph 8 of the first part of Article 83 Labor Code of the Russian Federation

Important Points

In conclusion, it is worth saying that the dismissal of employees is a complex procedure that can bring a lot of problems to the employer if it is carried out with violations. This means that, for example, dismissal due to inconsistency with the position held can be challenged in court due to the lack of a position in the organization from certification or the employee's job description. Also, an employee can be reinstated by a court decision if the dismissal for a systematic violation of labor discipline was not preceded by bringing the employee to disciplinary responsibility. Therefore, all documents must be carefully checked and comply with the requirements of the law.

The world does not stand still, and everything in it changes - including members of any work team: someone decides to give up a boring position, someone is asked to find another place by his immediate superiors. Everything you need to know when leaving - the rights, obligations and instructions for the employer and employee - is contained

Dismissal at the request of the employer

For whatever reason, the employee does not go on a free voyage, it is good if the dismissal occurs by agreement of the parties. But what to do if difficulties arise in the negotiation process, albeit of an official business nature? For example, how to officially dismiss an employee by transfer with his consentso that he does not have any problems either at the old or at the new place of work?

And yet, cases of voluntary dismissal are much simpler than situations when an employee ceases to cope with duties. In order not to act recklessly, the employer must clearly know what reasons exist for dismissing an employee and how it is required to draw up a decision to deprive a person of a position.

Staff reduction

In times of crisis, it happens that you have to cut staff - and this also needs to be done wisely: you should not take decisive steps without understanding how to warn about upcoming changes and how compensation is calculated when an employee is reduced.

When firing a person, remember that he can ask to be released on vacation during the redundancy warning period or go on early dismissal. You can also invite the employee to respond to a more modest vacancy, but before that, figure out whether it is necessary for your employee to move to a position that pays worse. Finally, your financial situation may also change, so it is important to know the procedures and conditions for canceling a redundancy order.

Disability

Unfortunately, sometimes a person ceases to cope with his duties for health reasons. In order to legally issue disability dismissal, you need to understand how much the health of a specialist has suffered - for example, he became a disabled person of the second or third group.

Other reasons

In addition to the above reasons, there are many more reasons for excluding a person from the labor collective. You can dismiss an employee based on the results of appraisal, for absenteeism (even if this happened only once) and, of course, for drunkenness.

In addition, in addition to typical problems such as inconsistency with the position held and constant lateness to work, some members of the team allow themselves misbehavior and extremely careless handling of company property. In this case, your option is to dismiss the employee due to loss of trust.

Dismissal at the request of an employee

Difficulties due to the refusal of a position also arise from the employees themselves. Not everyone knows the procedure and features of dismissal of their own free will, they are not sure how to write a statement correctly. But what if you had to leave the company at the most inopportune time? Can I quit my job while on sick leave or vacation? There are answers to these questions - you need to look for them in the Labor Code.

After dismissal: employer

An employer who has already fired an employee still needs to be on the lookout. He needs to know the specifics of taxation of severance pay upon dismissal, as well as figure out when to issue a work book. There are also situations when it is required to exclude from the work team a person who has not rested for a long time: keep in mind that hard workers are entitled to compensation for unused vacation.

After leaving: employee

According to the law, when voluntarily leaving the workforce, an employee is required to spend another two weeks in the company. But in certain situations, you can quit of your own free will without working off.

Look for and find a job, quit a position that no longer suits you, but do not forget about protecting the rights of the employee upon dismissal. This is especially important for women. Read whether there are grounds for dismissal of a pregnant woman and whether, by law, an employee can be reduced on parental leave, including for a disabled child.

There is a statutory procedure for the dismissal of an employee. The employer must comply not only with the procedure for registering the end of an employment relationship, but also with the procedure for issuing a work book upon dismissal. Because, having issued it at the wrong time, the employer is liable before the law, that is, for its untimely issuance and calculation, the administration of the enterprise bears administrative responsibility.

The company has the right to dismiss an employee who appeared at his workplace in a state of intoxication, as well as for drinking alcohol during his shift. Dismissal for drunkenness labor law allows for a single such misconduct. But it is important that the procedure is carried out in accordance with the rules and regulations, and the fact that the employee is in a state of alcohol, drugs or.

Sustained changes in the state of human health, provoking a violation of vital functions, which doctors call disability, is one of the reasons for terminating the employment contract of this employee with the enterprise where he works. Dismissal on disability is provided for by the norms of labor legislation. There is also an order, and situations, according to which the termination of labor relations occurs in this case.

Every able-bodied citizen is guaranteed the right to work. In the same way, the law ensures the rights of workers to safe working conditions, rest and wages, and, paradoxically, the right to dismissal. Dismissal at the initiative of the employee is the right that no employer can challenge. Even if there is work in progress, even if an employee.

The procedure for the liquidation of an individual entrepreneur is prescribed in the legislation. Dismissal during the liquidation of an individual entrepreneur is an integral part of the process of terminating the activities of an entrepreneur. All employment contracts concluded by him must be terminated, and employees are issued work books and payroll. At the same time, the law establishes compensation for dismissal from a liquidating enterprise. The entrepreneur is allowed to install independently, as in.

For some categories of working citizens, the state establishes additional guarantees, conditions for the protection of rights and interests. If an employee loses his ability to work, he can be dismissed only in those cases that are specified in the Labor Code. At the same time, the law does not establish a direct ban on the dismissal of disabled people. And the dismissal of an employee due to a disability of the 2nd group can occur on.

Most often, litigation and disagreements between employers and their staff arise when carrying out measures to terminate employment relations. The dismissal of employees at the initiative of the employer is a rather complex legal topic, and causes a lot of controversy not only among the parties to contractual legal relations, but also among lawyers and judges. Let's try to figure it out by analyzing the current labor legislation, when and in what.

Labor legislation regulates a special procedure for the work of part-time workers, their hiring, registration, and dismissal. There are several reasons for terminating the employment contract with such an employee at the enterprise: his own desire, agreement of the parties, as well as dismissal related to the initiative of the enterprise. The dismissal of a part-time job at the initiative of the employer must take place exactly with the specified norms of the law, taking into account the peculiarities of work - internal or.

The reached consent or agreement between the employer and the employee is one of the grounds for termination of labor relations. But in order to understand what is dismissal by agreement of the parties, it is necessary to analyze the norms of the current labor legislation, and the general legal nature of the concept of "agreement", to understand the essence of contractual legal relations.

In accordance with the norms of the Labor Code of the Russian Federation, the employer must provide the employee with maternity leave at the birth of a child. Some employees after maternity leave decide to quit on their own in order to devote more time to their family, some quit due to the termination of employment relations with them, which were established for a certain period, and dismissal by agreement of the parties is also possible. In some cases, the employee is supposed to.

You can dismiss an employee for lack of confidence, both working in the field of private business and in the field of public service. Only the grounds and procedure for the dismissal of such persons are slightly different. To figure out how to dismiss an employee for lack of confidence, you must first determine which positions this right of the employer applies to. This wording of parting with an employee is called dismissal under the article, which means.

An employee may have several reasons for dismissal of his own free will: he has found a new job or is going to look for it, he did not get along with his management or colleagues, he is going to move. Often, a conflict with superiors initiates the resignation of an employee, formally, of his own free will. In any case, regardless of the cause and occasion, there is a statutory procedure for the employee to act.

If an enterprise (organization) is liquidated, then in this case all its employees have to be fired. In this article, we will try to tell in detail about all the nuances that occur in this situation: how to properly issue a notice of dismissal to employees in connection with liquidation, pay wages, compensation and severance pay.

Among the main reasons for terminating the employment relationship between the employee and the employer, there are both objective and subjective. Objective, are indicated in the norms of the current labor legislation, as general legal grounds. Subjective reasons for dismissal relate, rather, to interpersonal relationships that have been formed in the course of work between the employee and his colleagues, or between him and him.

Aida Ibragimova, head of the personnel department of KSK group

February 08, 2016

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.

In almost all organizations, there are employees who do not cope well with their duties: they are often late, do not meet the deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss's verbal remarks do not work, it is necessary to apply disciplinary sanctions: a remark, a reprimand, an extreme measure - dismissal.

In Art. 81 of the Labor Code of the Russian Federation indicates the reasons why the contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of their labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be dismissed for a systematic violation of labor duties, what conditions are important to take into account and how to competently draw up a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misdemeanors for which you can be fired under the article

Dismissal under the article is possible if the employee performs actions that are prohibited by the employment contract, job description, local regulation, employer's order, labor legislation and other regulatory legal acts containing the provisions of labor law, or, conversely, if the employee does not commit the provisions of these documents actions.

Paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” refers to such violations:

Absence of an employee without good reason at work or workplace;
- Refusal of the employee without good reason to perform labor duties in connection with a change in the established order of labor standards, since by virtue of the employment contract the employee is obliged to perform the labor function determined by the employment contract, to comply with the internal labor regulations in force in the organization;
- Refusal or evasion, without good reason, of medical examination of workers in certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

This list is given in the resolution of the Plenum of the Armed Forces of the Russian Federation and, of course, is not exhaustive. Such violations include any non-performance or improper performance by an employee without good reason of their labor duties. In case of dismissal for repeated non-fulfillment of labor duties, the employer must have a clear position and irrefutable evidence of the employee's guilt. The obligation to provide evidence of the legality and validity of the application of a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, is assigned to the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631 / 2015).

Conditions required for dismissal

Prior to the application of a disciplinary sanction in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. The requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, was familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often complaints are received from clients that their employees do not fulfill their duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation in line with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The presence of an outstanding disciplinary sanction from the employee

A disciplinary sanction or remark must not be withdrawn ahead of schedule and its validity period must not expire (one year from the date of issuance of the order to apply the sanction). A disciplinary sanction can be issued as a remark or as a reprimand. For dismissal, one outstanding disciplinary sanction is enough, for the second one can already be dismissed. If an employee has several disciplinary actions, then this will strengthen the position of the employer, as it indicates that the employee was given a chance to correct. In this case, dismissal is an extreme measure, because previous disciplinary sanctions on the employee did not work.

3. The severity of the misconduct and the circumstances of its commission

In accordance with paragraph 53 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, in the event of a dispute, the employer will need to provide evidence indicating that:

- the employee has committed a disciplinary offense;

- when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed were taken into account (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee, his attitude to work.

This means that the offense must be proportionate to the punishment. It is impossible to apply a disciplinary sanction in the form of dismissal for an employee being late for 15 minutes if there were no complaints about the work of the employee earlier. It is also forbidden to apply several disciplinary sanctions for the same act. For example, it is impossible to reprimand an employee for one delay and fire him for the same. The behavior of the employer will be unlawful if he “accumulates” the employee’s lateness and on the same day announces a reprimand and dismisses the employee.

4. Terms of application of a disciplinary sanction

A disciplinary sanction may be applied within one month from the day the misconduct was discovered and six months from the day it was committed (according to the results of an audit of financial and economic activities or an audit, no later than two years from the date the disciplinary misconduct was committed). The date of discovery of the misdemeanor is the day when it became known that the misconduct was committed.

Please note that the monthly period for the application of a disciplinary sanction does not include the time the employee is sick, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction

Dismissal for repeated non-fulfillment of labor duties requires strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on non-fulfillment of labor duties

The misconduct of the employee must be recorded by the immediate supervisor in a memorandum addressed to the general director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the application of a disciplinary sanction.

2. The act of committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a specialist in the personnel department. The employee must be familiarized with the act against signature.

3. Notification of the provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations were requested, such a notice must be drawn up in writing and handed over to the employee against signature. In case of refusal to receive the notification, it must be read aloud to the employee and an act of refusal to receive the notification should be drawn up.

If, after two working days from the date of requesting an explanation from the employee, he did not provide it or refused, then an act is drawn up. If there is an act and a document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Consideration of the opinion of the representative body

Dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of the employment contract with the employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, one should be guided by the general rules for dismissal. It is necessary to draw up the following documents: an order to terminate the employment contract, a note-calculation, a work book, an employee's personal card.

Case Study

A client approached us for a HR audit. As part of the audit service, we also advise clients on all issues related to the application of labor law. One of the employees of the company was a single mother and "actively" used it. When checking the personal file of an employee, we found a large number of memos about her failure to fulfill her job duties. Previously, the client tried to reduce the employee, but in response, she filed a complaint with the labor inspectorate and went to court (although the employment contract was not terminated). The position of the employer was losing, since it is impossible by law to dismiss a single mother, and the procedure itself was framed incorrectly.

We advised the client to issue an order to suspend the dismissal of the employee, as well as to notify that her position will be retained. Despite this, the issue of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the employer's comments, she used the argument that she was a single mother. The woman held the position of a sales manager, systematically left the workplace ahead of schedule, and went on vacation without warning.

The personnel audit showed that the client's company had serious violations of personnel records and many mandatory documents were missing, as a result of which it was impossible to file a claim with the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to a problem employee:

Draw up a detailed job description for the sales manager, which should describe all the duties and indicate to whom the manager reports;
- establish in the job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales targets to be met by all sales managers.

Only with the approval and familiarization of the employee with all the indicated personnel documents is it possible to apply disciplinary sanctions. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary sanctions were drawn up for the employee when she committed the third misconduct - the dismissal procedure under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. The employee asked to be given the opportunity to quit of her own free will, as she did not want such an entry in the work book. The employer went to meet her, and the employment contract was terminated.

Misdemeanors for which you can be fired under the article

Absence of an employee without good reason at work or workplace;
Refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards, since by virtue of the employment contract the employee is obliged to perform the labor function determined by the employment contract, to comply with the internal labor regulations in force in the organization;
Refusal or evasion, without good reason, of medical examination of workers in certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

Conditions required for dismissal

1. The requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

2. The presence of an outstanding disciplinary sanction from the employee

3. The severity of the misconduct and the circumstances of its commission

- the employee has committed a disciplinary offense;

4. Terms of application of a disciplinary sanction

The procedure for imposing a disciplinary sanction

Dismissal for repeated non-fulfillment of labor duties requires strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on non-fulfillment of labor duties

The employee's misconduct must be recorded by the immediate supervisor in a memorandum addressed to the general director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the application of a disciplinary sanction.

2. The act of committing a disciplinary offense

3. Notification of the provision of written explanations

4. Consideration of the opinion of the representative body

5. Registration of termination of the employment contract

Case Study

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to a problem employee:

draw up a detailed job description for the sales manager, which should describe all the duties and indicate to whom the manager reports;
establish in the job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
establish monthly sales targets to be met by all sales managers.

affiliate material

It might be useful to read: