When they can be fired from work under the article. How to fire an employee without his desire according to the law. How to get a new job

To exercise your right to dismiss employees whose work for one reason or another objective reasons is ineffective for the company, the employer must remember that labor legislation provides him not only with rights, but also requires him to fulfill certain obligations in relation to employees. After all, failure to comply with requirements and non-compliance with legislative norms deprives the employer of the opportunity to initiate the dismissal of an unwanted employee and leads to serious financial losses.

Legal norms for dismissal “under article”

The term dismissal “under article” has migrated into our time from the Soviet and post-Soviet periods, when this concept meant a severance of labor relations under the only thirty-third article of the Labor Code (LLC) at that time. Many believe that the entry in the work book under Article No. 33 of the Labor Code required the dismissal of an employee due to drunkenness and absenteeism, but this is not so. This section of the Code included all grounds for termination of relationships at the initiative of the employer: from production reasons (liquidation and reduction) to grounds related to the employee’s guilt (absenteeism, theft, etc.), and even the return to work of the main employee was also included in this article.

But the people still remember that the presence of a reference to article No. 33 in the work book meant a labor mark. This idea was used to intimidate careless employees, as well as those who did not obey the requirements of management.

Today, when all the grounds relating to the termination of working relations at the will of the employer are divided into 12 points of Article No. 81, the question of what grounds of labor legislation can be attributed to the so-called calculation “according to the article” is resolved differently. To this conceptare considered all articles of the Code that are based on violations by an employee labor discipline, and, as a result, the application of disciplinary sanctions to the violator.

Let’s first figure out what these sections of labor legislation are, the grounds of which can be qualified as a person’s failure to comply labor responsibilities. Thus, it is permissible to carry out the procedure for disciplinary sanctions, which are regulated by the provisions of Articles No. 192 of the Labor Code of the Russian Federation, for no less than nine articles that are unpleasant for the employee. Moreover, such sections of the Code may apply to both all employees and certain categories:

1. Dismissal for a systematic, “non-severe” violation committed several times, which is documented at least twice (section No. 81 of the Labor Code of the Russian Federation, paragraph 5 of part one), this includes:
   • failure to comply with the norms and deadlines of direct labor duties (failure to report, non-compliance with the requirements of individual job description etc.);
   • ignoring regulations, including technical and local acts, management orders, etc.;
   • failure to comply with labor discipline (lateness, absence from work, etc.).
2. For a serious violation committed once (Article No. 81, subparagraphs a - e of paragraph 6 of part one):
   • a) absenteeism;
   • b) appearing at work under the influence of alcohol or drugs;
   • c) disclosure of commercial, official or state secrets;
   • d) theft, embezzlement;
   • e) violation of labor safety standards.
3. Termination of contract due to loss of trust (section No. 81, paragraph 7).
4. Termination of a contract for an immoral act (applies only to teachers and educators) - paragraph 8 of Article No. 81.
5. For gross mistakes by managers that cause damage to the company, and failure by them (as well as their deputies) to comply with labor standards (Article No. 81, paragraphs 9 and 10).
6. Although in these cases no penalty is applied, termination of the contract when forged documents are discovered during the conclusion of the contract is also considered a breach “under the article”. Since this can be safely attributed to incorrect work behavior.
7. A special case where a teacher violates the organization’s charter (clause 1 of Article No. 336 of the Code) is subject to “discipline” and dismissal “under the article”.
8. As well as the dismissal of disqualified athletes (for example, due to doping) - article No. 348.11.

It should be noted that the obvious is that all of the above grounds are classified as articles, the indication of which in the employment contract immediately raises fair questions from the personnel officer when applying for a job. This is a kind of “stigma” for a person. As a rule, when a future employer sees such a post, any explanations and comments of the person are not perceived. In the best case, a person will face a less prestigious job, a lower salary and constant control by the security service or immediate management. At worst - refusals vacant positions. Therefore, probably 90% of all claims of dismissed workers, which are brought against the decisions of the employer, relate to dismissal under any of these articles.

Dismissal “under article” can be called a labor stigma; in this regard, the violator of labor discipline will most likely have problems with further employment

Let's not dwell on exceptional cases, let's look at the most common options, and start with the most used ones.

6 key grounds for dismissal “under article”

The most common reasons for termination of employment relationships are absenteeism, alcohol in the workplace, theft, etc. All these work violations are regulated by Article No. 81, subparagraphs “a - d” of the sixth paragraph of the Labor Code of the Russian Federation.

This is the most “strict” section for both parties. On the one hand, even for a one-time violation from the list of violations of paragraph No. 6 of the article, you can immediately terminate the contract. On the other hand, there are a lot of nuances that an employer needs to take into account when dismissing a person.

Moreover, as stated Supreme Court Russian Federation, if it comes to proceedings, it is the employer who must collect and present evidence of the competence of such actions.

Let's understand the terms and details that labor law uses in the application of these situations.

Absenteeism - difficulties and nuances of dismissal

The Code defines absenteeism as being absent from the workplace without a valid reason for more than four consecutive hours during one work shift.

On this basis, the employer has the right to terminate the contract with the employee “under the article” on the day the misconduct is discovered. True, we should not forget that dismissal for absenteeism is one of the types of disciplinary sanctions provided for and strictly regulated by the Labor Code of the Russian Federation. Therefore, dismissal on this basis must be carried out in accordance with Article No. 193 of the Labor Code of the Russian Federation, that is, recording the fact of absenteeism must go through a certain procedure (we will consider this issue in more detail, in detail, in a separate chapter devoted to step by step instructions for registration of any recovery):

1. An act, official or memorandum from the manager (colleagues), indicating that the employee was absent from work.

   The act specifies the specifics of the fact, and the document is endorsed by at least two witnesses to the violation

2. Requirement to provide an explanatory note from the employee.
3. If explanations are refused, a report is drawn up recording the fact that the employee refused to provide explanations.
4. If the employer has difficulty understanding why a person is absent from work (it may happen that he is absent for a good reason), he is sent a requirement: to report to work to provide an explanation for his long absence from the workplace.

   If personnel officers cannot find the violator, a requirement is drawn up: to appear and give an explanation

5. As soon as the person is properly notified that absenteeism has been recorded, an order can be issued to terminate the employment contract.

   In the termination order employment contract All grounds are listed: service documents, acts, notifications, etc.

The record of dismissal under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is recorded in the work book as standard, without abbreviations and abbreviations. Possible wording indicating a link to the article of the Code:

• “fired for absenteeism”;
• or “the employment contract was terminated due to a one-time gross violation of labor duties - absenteeism...”;
• further, there is a correct link to the article of the Code;
• visa of the responsible person, dismissed employee and seal of the organization.

An entry in the work book under subparagraph “a” (absenteeism) may look like this

The background to the issue of absenteeism is clear; there are many more nuances and subtle points here. Therefore, before preparing materials for dismissal for absenteeism, it is recommended to carefully research and check all the points.

Typical mistakes, or when it is impossible to fire someone for absenteeism

Please note that you should not fire an employee for absenteeism if at least one of the significant conditions for determining the person’s guilt has not been established. Therefore, in order not to run into litigation, you need to eliminate all mistakes when dismissing someone based on this fact.

Summarizing the main points when an employer risks losing a court case due to illegal termination of a contract, it should be noted that there is a fairly extensive list of shortcomings for this. Here are the most common ones, namely:

• The employee’s employment contract does not define the working mode (specific days of the week or schedule), therefore, the absence of more than four hours during a work shift cannot be proven, since it is not determined from what hour the clock begins and which days are considered working days for the employee.
• The employee's contract does not define it workplace, therefore, it is impossible to prove that the person was not there.
• When there are no arguments that the reason for absence is truly disrespectful: that is, a full step-by-step registration procedure has not been carried out disciplinary action or it was carried out with violations.
• If, fourteen days after the employee submits an application to terminate the contract under at will(written statement), the person did not show up at work.
• Or a variant close to the previous one: a person does not go to work for a long time, and the employer cannot find out the reason for his absence. In this option, the personnel officer will not be able to dismiss the employee on legitimate grounds, since the absence of a person does not give the right to do so: it is impossible to obtain comments or attest that comments about the reason for absenteeism were requested, but not given. Thus, until the employee returns to work and the employer asks him to explain the reasons, dismissal for absenteeism is not legal.
• Another argument that is not far off in its grounds is serving an administrative arrest imposed in accordance with a court decision. This fact does not depend on the will of the employee, and therefore serves as a valid reason for absence from work. This means that this fact cannot be considered absenteeism.
• During the period when the part-time worker is on a business trip to his main place of work, termination of the contract in this situation is illegal.
• Or another option: a person does not go to work for the reason that he does not agree with his transfer to another position or workplace - also a slippery option for the employer. Termination of the contract due to “absenteeism” will not work here, we need to negotiate.

A separate question here is when an employee is entitled to time off or vacation according to the law. Let’s figure out which situations will not be recognized by the court as a violation of labor discipline:

• absenteeism from the workplace if the company has a pre-agreed vacation schedule and the person rests according to plan (it is impossible to issue a unilateral ban in this case - only negotiate);
• a person cannot be denied a day of rest if he is participating in a donor program;
• you need to know that granting unpaid leave to a working pensioner in accordance with Part 2 of Article No. 128 of the Labor Code of the Russian Federation is an obligation and not a right of the employer;
• it is also recognized as the organization’s duty to provide additional leave in case of marriage registration.

In the judicial practice of dismissal for absenteeism, there are cases where both the employer and the employees were found to be right. We present both solutions.

Thus, the court recognized legal dismissal when an employee, while on a five-day business trip, finished it 2 days earlier, but, having returned to the city where the company is located, went to work only after the end of the period indicated on the business trip sheet. The court recognized these 2 days as absenteeism and did not reinstate the person in his position (see court case No. 33-4247/2011).

At the same time, when a retired teacher, fired for absenteeism, managed to prove that he skipped work for health reasons without taking a health certificate, the company had to reinstate him at work and pay him all the required compensation, including moral damages (with a definition court case No. 33–7511 can be found).

Photo gallery: claim form for reinstatement

In the statement of claim, you can indicate all the requirements, for starters - reinstatement at work (part 1) Requirement No. 2 of the statement of claim may be payment of salary for the period of forced absence (part 2) You can indicate in the claim and compensation for moral damage (part 3 of the statement)

Alcohol at work - a simple scheme for dismissal

Termination of a contract due to the use of alcohol or drugs in the workplace (or on the territory of the enterprise) is, as a rule, much simpler. It doesn’t matter here when the person was caught doing this: at the beginning or at the end of the work shift (at least 5 minutes before the end of the working day). It does not matter whether the employee was relieved from performing his or her duties due to the specified condition or continued to work. If the employer wishes, this can be done at any time.

In this option, the violation detection algorithm will be as follows:

• if possible, a medical examination is carried out, for this it is even possible to call an ambulance, and it should be noted that other evidence may be accepted by the court;
• an act is drawn up confirming that the employee was drunk at work, which is endorsed by two witnesses;
• an explanatory note is requested from the violator;
• an order on the fact of application of the DV is drawn up and endorsed;
• an order is issued to terminate the contract with the employee.

The grounds that are indicated in the employment contract: Dismissed for a one-time gross violation of labor duties - appearing at the workplace in a state of alcoholic (drug) intoxication, subparagraph “b” of paragraph 6 of part one of Article 81 Labor Code Russian Federation.

In the work book, you can indicate a specific reason for dismissal (alcohol) or simply put the details of the Code article

Usually, employees with such dismissal do not go to court, since it is almost impossible to prove the opposite if the fact took place and it is correctly recorded.

Privacy violations

More interesting option for consideration - disclosure of secrets protected by law (commercial, official, etc.) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (subparagraph “c” of paragraph 6 of part one of Article No. 81 of the Code).

Several points are important at this point:

• the employment agreement must contain a non-disclosure requirement;
• and it is also clearly stated what is considered a secret;
• Confidential data refers only to information obtained by a person in the performance of his or her job responsibilities(for example, a company’s trade secret may include its customer base, sales volumes and dynamics, profits, market analytical data purchased or developed thanks to internal resources, etc.).

If at least one of the listed points is not met, termination of the relationship under this subparagraph may be considered illegal. As with the other sections of this article, evidence of the legality of dismissal on this basis rests with the defendant company.

Please note that it is impossible to terminate the contract if:

• there is no list of information constituting a commercial, official or other secret;
• if the disclosure of the employee’s personal data occurred as a result of improper storage, since the employer is responsible for organizing the storage and use of employees’ personal data.

Therefore, it is important: in order to be able to impose penalties on an employee, the company must develop protection regulations confidential information. It is introduced by local regulations, which must be familiarized to all employees upon signature. The absence of such a document may be grounds for cancellation of the penalty in court.

Theft is a reason for dismissal

Breaking an employment relationship due to theft or embezzlement is a rather labor-intensive and lengthy process for an organization. And even taking into account the fact that the theft of both corporate and other people’s property (including colleagues or clients) can be recognized as a basis, it must be taken into account that dismissal under this article will be recognized as legal only when a court decision comes into force.

Therefore, it is not enough to catch a thief by the hand; in order to fire him under the article, you need to obtain a resolution from the competent authority. So, having the act in hand private security which has recorded the fact of theft, will not be able to justify the legality of the dismissal of the offending employee, since this service does not have the right to apply administrative penalties. Consequently, it is possible to dismiss a stealing employee only within one month after the court ruling.

In this case, the entry into the labor record goes under the letter “g” (the article is still the same - eighty-one, part one, paragraph 6).

The wording in the labor report when rendering a court verdict on the basis of “theft” is registered as follows:

At the same time, the legislation makes it possible to present a claim to the offender for compensation for damage to the company; we will give an example of a statement of claim.

Photo gallery: statement of claim for compensation for damage caused by an employee

In the statement of claim, you need to set out everything on the merits of the case (example, part of the statement No. 1) In the claim you need to provide evidence (example, part of the statement No. 2) Put forward demands (example, part of the statement No. 3) In the concluding part, provide a list of attached documents (example, part of the statement No. 4)

Dismissal for committing an immoral offense

Please note that only employees performing educational functions (teachers, instructors, mentors, educators, nannies, etc.) can be fired for committing an immoral offense.

Employees performing technical auxiliary duties (watchman, driver, accountant, etc.) cannot be fired on this basis (clause 46 of the Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004).

The concept of “immoral act” is not defined in law. Therefore, the employer independently decides which offense should be considered immoral. In practice, the following is considered immoral:

• petty hooliganism;
• drinking alcohol in public place and the involvement of minors in this;
• fights, scandals;
• cruelty to animals;
• taking drugs;
• foul language in the presence of children, etc.

It does not matter where the offense was committed: at work, on vacation or at home.

The work book in this version indicates the basis - paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation.

Beating a child in a family can be difficult to prove, but such “fathers” should be fired not only pedagogical work, this is already the prerogative of the Criminal Code of the Russian Federation

Dismissal of unscrupulous employees for repeated misconduct

There are cases when an employee sabotages the orders of management, refuses to fulfill his job duties, is absent from the workplace for a long time, and is clearly not eager to fulfill his work duty, but comes to receive his salary regularly. In case of such behavior, the employer has the right to dismiss the negligent employee under paragraph 5 of Article No. 81 (repeated failure by the employee to fulfill his job duties).

You should know that when applying such a basis, the following mandatory conditions must be met:

• violation of labor discipline must be recorded on paper;
• from the wording of the grounds it follows that the offense committed must be registered at least 2 times;
• Moreover, it is important that the fact of the first (or previous) violation was recorded no more than a year ago;
• “minor” disciplinary violations are considered:
  • failure to comply with the orders of the immediate supervisor that relate to his direct functional responsibilities enshrined in the job description or in the employment contract, failure to meet deadlines for completing work or submitting reports, and other actions that disrupt the work rhythm of the enterprise;
  • frequent abandonment of the workplace for no reason and violation of rules internal regulations: being late, leaving work before the end of the shift, constantly drinking tea, etc.;
  • refusal or evasion of a medical examination of an employee who holds a certain position requiring mandatory examination, or when the employee refuses to undergo (during work) special training, passing qualifying exams in occupational safety, health, safety, civil defense, etc.;

Please note: disciplinary action includes, among other things, a person’s refusal to undergo a scheduled or unscheduled certification if it was established by a local regulatory act of the enterprise. This makes it possible to fire a person who, in the employer’s opinion, does not meet the proper qualifications. To do this, you need to issue at least 2 penalties during the year (for any of the above reasons).

Algorithm for applying disciplinary action and subsequent dismissal

Let’s look at the question: how can an employer competently confirm a disciplinary violation and legally terminate an employment relationship on the basis of an employee’s failure to fulfill official duties.

Step-by-step instructions in case of dismissal “under article” are as follows:

1. For the initial registration of violations of discipline by the employer, acts of misconduct can be used, which are confirmed by two witnesses. These include the following documents: official or memos, data from reporting inspections, results of audits, etc. If a subordinate did not complete the specific task assigned to him, a statement is written memo. When an employee has not been on site for a long time, a report is drawn up. The report describes the offense committed, indicating the date and place. In this case, it is recommended to refer to the specific clause of the job description, contract or internal regulation that was violated.

   The report can be drawn up on the basis of employees’ failure to fulfill official duties; do not miss the point that 2 witnesses to the incident must sign on the original

2. The next step is to obtain an explanatory statement from the employee about the reason for the violation, this must be done in writing (Article No. 199 of the Code). It is advisable at this point to draw the person’s attention to the fact that if he does not give an explanation, this will not affect the result, and the DV will still be applied. This can be done in the notification. If the violator does not want to sign the notice, a refusal act is drawn up.

   The notice of explanation must indicate all violations (if there were several, as in the example)

3. After 2 working days, if the explanatory note has not been provided, a corresponding act is prepared.

   If the employee refuses to sign the notification, the text is read out loud to him in front of witnesses, this is enough for notification, and a statement of refusal is drawn up

4. If the violator of labor discipline nevertheless provides an explanatory note, it is sent to the immediate supervisor, who imposes a resolution on the decision made and appoints executors according to it. Example: “To the head of the HR department I.I. Sidorova. The justifications given in the explanatory note are considered disrespectful. Issue an order to impose a penalty - a reprimand. Deadline: April 10, 2018 (signature, date).”

   In the explanatory note, a person can speak with reason about the reasons for committing a disciplinary offense

5. As soon as the explanatory note or act of refusal reaches the personnel department, an order is issued to apply a disciplinary sanction (remark or reprimand) to the violator. There is no unified form for such a solution.

   The order on disciplinary action indicates all the details of all previous documents

6. The next step is to familiarize the person with the order to issue him a DV. The HR officer is given 3 working days for this (from the date of publication of the document). If a person does not want to endorse the decision, this is reflected in an additional act.
7. In the case of a serious violation, which provides for dismissal after a single violation (Article 81, paragraph 6), you can immediately issue the following order - to terminate the contract. If the violation is less serious, the second offense must be recorded according to the same principle (not necessarily on the same basis as the first). At the same time, you need to know that no more than one year should pass between the first and subsequent violations. The next DV is issued in the same way as the first, and the documents indicate that the offense was not committed for the first time. For example: “Since I.I. Sidorova was already subject to disciplinary action in February 2018; I consider it necessary to dismiss her for repeated failure to fulfill her job duties under paragraph 5 of Article No. 81 of the Labor Code of the Russian Federation.”
8. Next comes an order to apply a disciplinary sanction, but not in the form of a reprimand, but with a resolution - termination of the employment contract under a certain article.
9. The next and final document will be the order to terminate the employment contract with the employee (in form No. T-8).

   An order to terminate an employment contract with an employee is drawn up in a standard manner, indicating the article and full grounds

10. The final step is the registration of labor and payment on the day of dismissal, which includes wages for time worked and compensation for vacation days not taken off.

It is important for both parties: the employer has the right to deprive a bonus, issue a reprimand or reprimand and dismiss “under the article” even if the person submitted a letter of resignation of his own free will. Labor law rules here determine that the relationship between the employee and the employer ends only after two weeks have passed after the application is submitted. Therefore, violations committed during work can be qualified and accepted for dismissal under “bad” articles.

What you need to know when being fired “under article”

Each section of the Labor Code of the Russian Federation regulating the termination of an employment contract has its own fundamental principles and nuances. Yes, for all reasons for termination labor relations There are a number of general points regarding articles that compromise an employee, which include:

• The main thing when carrying out the procedure is to go through all the stages of imposing a disciplinary sanction on the dismissed employee. As already mentioned, in some cases one serious offense is enough for this, in others - at least two.
• Article No. 192, which defines the forms of DV, refers to only 3 types of penalties:
  • a remark - necessarily recorded in writing - is the most loyal punishment;
  • a reprimand, which must be documented, is the next most serious step;
  • dismissal “under article” is the most serious DV.
• The next important point is that termination of employment relationships “under the article” should only take place if there is a solid evidence base; in this case, when justifying the legality of the decision, the employer must have a full package of documentation drawn up in accordance with all legal requirements. The employer thereby provides himself with insurance if the fired person goes to court. The documents in the defendant’s hands will become real proof that the employer is right.
• At the same time, the company (HR) upon termination of the contract under any of these articles must have a set of accompanying labor activity documents, as well as local legal acts and regulations:
  • job descriptions if a person is “dismissed” due to non-compliance;
  • Confidentiality provision in case of termination of contract in case of violation of trade secrets;
  • internal rules - if it is planned to dismiss an employee, for example, for being late, etc.
• Fifth - time limit after collection:
  • the employer is given the right to dismiss a person within one month as soon as the fact of a violation (first and only or subsequent) has been certified;
  • Moreover, this time does not include periods when a person was on sick leave (with the exception of a leave sheet for caring for a family member, this period is taken into account in this calculation), was on vacation, as well as days when the necessary opinion of the trade union was taken;
  • but under all the above conditions, the penalty cannot be issued after six months;
  • the exception here is a reprimand issued based on the results of an audit or financial audit; in this case, the employer has 2 years (the period of the trial is not included in this period).
• Sixth, the basic rule of imposing a disciplinary sanction must be observed: the list of DVs is exhaustive, therefore the employer does not have the right to apply other types of punishment (fines, deprivation of bonuses, etc.) to the violator. Only one penalty can be applied for each violation.
• You should also remember the consequences: if a labor offense is committed and an employee is charged with DV (no matter a reprimand or a reprimand), the employer has the right not to pay incentive payments to the employee in whole or in part, but only if in local regulations provided, and in case of repeated (within one year) violation of labor discipline, dismiss the employee (clause 5 of part one of Article No. 81 of the Labor Code of the Russian Federation).
• You need to know that any employee can be fired “under article” if desired, including categories that enjoy exemptions for dismissal under other articles (single mothers, part-time working mothers with children under three years old, etc.). It must be taken into account that dismissal for any reason (except for liquidation of the company) is prohibited:
  • during the period a person is on leave (annual paid or without pay, to care for a child until he reaches the age of three years, as well as on educational leave);
  • during sick leave, and you need to know that this rule does not apply to cases of sick leave for a sick family member; during this period, dismissal is possible.
• Penalties are not included in the labor report (unless, of course, this is the final stage - dismissal).
• And lastly: any type of DV (with the exception of dismissal, of course) has a statute of limitations - 1 year from the moment it was discovered and documented. After this period, the collection is considered repaid.

We recommend that all personnel officers who carry out dismissal “under the article” know these principles. After all, one mistake during such a procedure can be fatal for the employer. Judicial practice Quite often, decisions are replete with decisions not in favor of the company, where even the most minor deviations from the requirements of labor law were made.

How and where to challenge dismissal “under the article” - a word from a lawyer (video)

Employer's liability for illegal dismissal

Much has already been said above that when dismissing people, especially under articles with serious consequences for the employee, HR officers need to be especially careful and legally savvy. It is known that during trials and litigation, as a rule, the courts side with employees. And this is especially true if the employer has prepared a weak evidence base.

What are the consequences of illegal dismissal?

• reinstatement of the dismissed person (and whether to return to the company or not is decided by the person himself at the time of filing a complaint or at the time of making a decision);
• if it is recognized that a person was suspended from work illegally, he is paid a salary for the entire period of forced absence;
• accordingly, the employer will be obliged to restore the length of service lost during forced absences and count the allotted vacation days during this time;
• if the workplace of an illegally dismissed person is occupied, the company will have to vacate him (it is possible to return a person by transfer to another position only with his consent and without a reduction in salary);
• a person can demand compensation for moral damage from the company (this is enshrined in Article No. 394 of the Labor Code of the Russian Federation).

In addition, there are penalties for the employer for late payment of severance pay (Article No. 140 of the Code), withholding work book(see) etc.

There are enough articles in the Code for dismissing negligent employees. But amateur activity is unacceptable here. Firstly, labor legislation clearly regulates every step of the administration when terminating an employment contract, and violations here immediately turn against the initiator. And secondly, driven into a corner by a “bad” article, a person will try with all his might to restore justice. And if there is even one gap in the employer’s actions, the fired person will definitely try to take advantage of it.

Dismissal is a routine job for an experienced HR manager. Some employees leave of their own free will, others at the “request” of the employer. In any case, for each reason there is its own procedure. Strict compliance with it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other, at protecting organizations from unfounded claims. former employees. Let's look at how to fire an employee in compliance with all necessary formalities.

Dismissal options

Labor legislation provides for 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

The employee’s own desire is the most common basis for terminating a relationship with the employer:

1. The employee writes a letter of resignation indicating the date.
2. The employer is obliged to satisfy this request.

As a rule, there are no difficulties with registering dismissal at the initiative of an employee. The exception is issues related to mandatory “working out”. The standard is 2 weeks, which the employee continues to work from the moment the application is submitted.

Certain categories of personnel have the right to a reduced period of notice of dismissal. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not manage to pay the resigning employee in time and issue him a work book.

The employer's initiative involves a more complex dismissal process. If this is a reduction in staff or liquidation of a company, the procedure is clearly described in the legislation and does not pose any problems from the point of view of documentary support. The main task here is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to dismissing an employee unilaterally by the organization, the employer’s “freedom” is clearly limited: desire alone is not enough for this. There is a list of reasons for which an employee can be fired, and a special procedure for recording violations for each of them. There are no documented misconduct by the employee - there is no reason for dismissal.

A “compromise” option for terminating the employment relationship is an agreement between the parties. In this case, the employer and employee amicably agree to part ways under certain conditions. Most often it looks like this: the organization is interested in dismissing an employee without the risk that he will change his mind and withdraw the application “on his own.” The employee “bargains” to receive monetary compensation for his care.

Dismissal at the request of an employee

An employee has the right to terminate the employment relationship at any time. To do this he needs:

• fill out an application for resignation of your own free will 2 weeks before leaving;
• work the assigned days;
• complete the transfer of affairs to another employee, if such a procedure is provided in the organization.

It does not matter what contract was concluded when entering the job - fixed-term or indefinite. In any case, the employee’s desire is decisive, and the employer has no legal grounds to interfere with him.

The application is written addressed to the manager with the wording: “I ask you to dismiss me at your own request, “XX” month in words XXXX year,” the current date and signature.

If an employee leaves without working, he must include in the application the reason for dismissal:

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another duty station/abroad;
• violation of the law, the terms of the employment contract by the employer.

In such cases, dismissal occurs on the date specified by the applicant. If required, a supporting document (certificate from the institute, transfer order, etc.) must be attached to the application. An employee can leave “one day” without a good reason if the employer meets him and allows him not to work.

Without observing the two-week period, you can dismiss an employee on vacation if he submitted an application before it began or during the vacation, but no later than 14 days before going to work. Then the first working day after vacation will be considered the date of termination of the employment contract.

Employees on a probationary period, signed under a fixed-term employment contract for a period of up to 2 months, and seasonal workers work not the standard 14, but only 3 days.

From the employer's perspective, the procedure for voluntary dismissal looks like this:

• receipt of an application endorsed by the head of the company;
• creating an order;
• making an entry in the work book;
• full settlement with the employee regarding wages;
• preparation of documents necessary for further employment (2-NDFL certificates, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the reason for leaving, the personnel documents will indicate the same reason under which article to dismiss the employee - Art. 77 Labor Code of the Russian Federation. On the day of dismissal, the employee reads the order and receives a work book. Until this moment, a person can change his mind and withdraw the application if a replacement has not yet been invited to take his place, which “cannot be turned back.”

Dismissal by agreement

The agreement of the parties implies a quick and simple dismissal procedure:

1. If the initiative comes from the employee, he submits a letter of resignation to the manager.
2. If an employer “asks” an employee to leave the company, he sends him a written offer.
3. The parties discuss the terms of termination of the employment contract.
4. The organization and the dismissed person sign a bilateral agreement.
5. The HR department issues an order and fills out a work book. The basis for dismissal is clause 1 of Article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of capabilities and compliance legal rights. The employer can, by agreement with the employee, dismiss him on any day, even if he is on vacation or sick. A quitter cannot “change his mind” and cancel a signed document unilaterally. The employee is also not offended - during the negotiation process, he has the right to protect his material interests and demand compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer for purely economic reasons - the need to reduce the number of employees or completely close the organization. In the second case, all personnel are expended; in the first case, the units and positions being reduced are expended, with the exception of those categories of employees who cannot be laid off by law.

If it is necessary to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee is not suitable for the position held or that he has committed misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work drunk, systematic violations with disciplinary punishment.

To avoid infringement of the rights of personnel, legislators did everything to ensure that a person could not be fired without good reason. It is quite difficult to “prosecute” an employee towards whom his superiors have a personal enmity, although abuse on the part of employers cannot be completely ruled out.

Reduction of staff and liquidation of the company

Reduction has a clearly regulated process for dismissing part of the staff:

1. The decision on reduction made at the enterprise is fixed by order. For personnel service this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and changes in the staffing table.
2. 2 months before the date of layoff, all employees subject to it are notified in writing and signed.
3. The employer is obliged to offer the employee another position, if such a possibility exists. A transfer is issued for people who agree to the proposed vacancies. The rest are preparing to retire.
4. A notified employee has the right to leave early without waiting for the layoff date. If a person who learned about the impending dismissal found new job, the employer must release him freely. Compensation for the remaining days before layoff early dismissal does not deprive the employee.
5. 2 months before the layoff, management must notify trade union body, if there is one. In case of mass layoffs of workers - 3 months in advance, and also submit lists to the employment service.
6. A dismissal order is prepared for each employee (form T-8) with reference to the basis document. The order is sent to the person being dismissed for signature.
7. An entry is made in the work book indicating the reason for dismissal - clause 2, part 1 of Art. 81 TK.
8. Full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of average salary.

Dismissal due to staff reduction does not apply to certain categories of employees:

• pregnant women and women on maternity leave;
• single mothers with children under 14 years old, with a disabled child under 18 years old;
• trade union members and workers speaking in negotiations with the employer on behalf of the team.

When one of several equivalent positions is eliminated, the choice of workers to leave and who to stay falls on the employer. However, even here the authorities are deprived of complete freedom. All other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important,” the legislation gives some of them a priority right to keep their jobs. This:

• persons with 2 or more dependents;
• the only breadwinners in the family;
• received injury or occupational disease from this employer;
• disabled participants in combat operations;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. You cannot fire an employee if he is on sick leave or on vacation. To lay off temporarily disabled people and vacationers, you will have to wait until they return to work.

All these exceptions do not apply if the organization is completely liquidated. The liquidation procedure is practically no different from layoffs, except for one thing: all personnel of the organization are deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers, etc.) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it is completely ceasing its activities.

Dismissal of labor discipline violators and unfit workers

An employee who systematically violates discipline causes management to understandably want to get rid of him. Labor legislation allows you to dismiss an employee immediately only for a gross disciplinary “crime”:

• absenteeism;
• presence at work in a state of intoxication (alcohol, drugs), confirmed by a medical examination;
• disclosure of information protected by law (state, trade secret), proven in court;
• theft, embezzlement, material damage to an employer or a third party recognized by a court;
• violations of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teaching staff;
• presentation of false documents when applying for a position.

Dismissal for a single gross violation is a disciplinary sanction. The procedure for its registration includes:

1. Detection of violations.
2. Recording an offense (drawing up an act, protocol, examination, conducting medical examination etc.).
3. Receiving written explanations from the offending employee.
4. Consideration of the circumstances of the case.
5. Drawing up a dismissal order in the T-8 form, with references to supporting documents (acts, reports, explanatory notes, court decisions, etc.) indicated as the basis.
6. Bringing the order to the employee for signature.
7. Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to fire an employee for absenteeism: if a person is absent from work for the entire day or 4 hours in a row, it is necessary to document this fact and prove that the employee was not there without a good reason.

Until an explanation is received from the “truant”, the “presumption of innocence” applies. The employee could be on leave, vacation, on sick leave, be summoned to court, get into an accident on the way to work, etc.

If the employee has not received any clear explanations or supporting documents (certificate of incapacity for work, subpoena, traffic police report, etc.), the offense is regarded as a gross violation of labor discipline and is qualified under Art. 81 Labor Code of the Russian Federation, part 1, clause 6, subparagraph “a”. This basis will be recorded in the dismissal order and in the work book.

List of documents confirming the legality of such dismissal:

1. Report of absence from work.
2. Explanatory note from the employee or an act of refusal to provide explanations.
3. Order of disciplinary action/dismissal.

If the employer violates this procedure, even if he has good grounds for dismissing the truant, the “offended” employee has every chance to be reinstated through the court.

It is also possible to fire a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming “chronic” indiscipline may collectively serve as grounds for severing employment relations.

Another “touchy” question for employers is how to properly fire an employee who, in the opinion of management, is not suitable for the position held. There is no other option other than arranging a certification for an incompetent employee. It is necessary to issue an order, create certification commission and evaluate a person’s professional suitability based on clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can formalize your dismissal with the wording “due to inadequacy for the position held.” The period within which the employment contract must be terminated is no later than two months after certification.

When disputes arise related to wrongful dismissals, the courts often side with employees. The reason is simple: it is a rare organization that can boast of perfect order in internal regulations and personnel documents. Lack of schedules, job descriptions, certification provisions and labor regulations, an illiterately drawn up employment contract, “missed” steps when initiating dismissal - all this can serve as evidence that the dismissal was carried out in violation of the law.

Such situations are not uncommon at an enterprise when a manager is forced to dismiss an employee under an article. Legally, such a concept does not exist. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for removing an employee from a position can have an extremely negative impact on his future employment. Let us next consider some labor articles on dismissal.

Reduction or liquidation

This is one of the reasons why dismissal may be made. According to Article 81, paragraph 4, only the chief accountant, the manager and his deputy can be dismissed from office in the event of a change in the owner of the company. This provision does not apply to other (ordinary) specialists of the enterprise. When staffing is reduced, some categories of specialists cannot be dismissed from their positions by law. Such “untouchable” employees are considered to be those who have long and uninterrupted experience in a given company or are the only breadwinners in the family.

Inconsistency

As the Labor Code states, dismissal under Article 81, paragraph 3 can be carried out due to incompetence if the specialist is insufficiently qualified, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

• Director of the enterprise.
• Representative of the HR department.
• The subject's immediate superior.

The certification is confirmed by the relevant order. The subject receives a task that does not go beyond the scope of his job description and corresponds to his qualifications and specialization. If the task, in the opinion of the specialist, was not drawn up in accordance with his duties, then the results of the certification can be challenged. To do this, within the period established by law, a complaint is written to the labor inspectorate and a claim is filed with a judicial authority. Based on the results of the certification, a final report is drawn up.

Transfer to another position

Dismissal under Article 81 is permitted if it is impossible to send a specialist, with his written consent, to perform other professional tasks at the enterprise. This may be a free position corresponding to the employee’s qualifications, or a lower or less paid position that can be performed by him taking into account his health. In this case, the employer is obliged to offer all vacancies that meet the above requirements and are available in a specific area. The manager is obliged to offer activities that need to be carried out in another territory if this is expressly provided for in an employment, collective or other contract or agreement. The specialist may refuse the options provided. In this case, the manager can fire him.

Failure to fulfill duties

Dismissal under Article 81, paragraph 5 has a number of features. In particular, a manager can dismiss an employee if the employee repeatedly fails to fulfill his duties without good reason, and a disciplinary sanction is imposed on him. The latter is allowed in the form:

• reprimand;
• comments;
• dismissal from office.

If there are valid reasons for non-fulfillment of duties, the employee must set them out in writing.

Absenteeism and tardiness

A specialist may be absent on site for various reasons. If they are valid, they must be confirmed by relevant papers. For example, if an employee gets sick, he provides sick leave. If the reasons for absence are not valid, then this is called truancy. All circumstances for which the specialist was not at work are set out in writing. The decision to recognize or not recognize them as respectful is made by the head. If there is a need to be absent from the enterprise, you must first write a corresponding statement. It is drawn up in 2 copies, on which the director puts the note “I do not object.” The situation with delays is somewhat more complicated. An employee’s absence from the workplace for more than 4 consecutive hours during a shift (day) will be considered a single gross violation. Thus, if a specialist is an hour late, he cannot be dismissed from his position for this reason. But in case of repeated such violations, disciplinary action may be imposed followed by dismissal.

Embezzlement and theft

These reasons are considered one of the most indisputable of all the circumstances for which dismissal can be carried out under an article of the Labor Code. When committing theft, including petty theft, of someone else's property (in this case, belonging to an enterprise or other employees), its waste, damage or destruction, established by a resolution of an authority or officials authorized to consider cases of administrative offenses, or by a court verdict that has entered into force, the specialist is relieved of his position.

As can be seen from the text of the norm, an appropriate act is required, which, in essence, is the result of an investigation. However, often in practice, management shows leniency and offers dismissal at their own request. The article in this case will be different. Theft or other serious violation can affect not only the reputation of the employee himself (even if he is innocent), but also the enterprise itself. The consequences in such situations are almost always dismissal. Under what article to relieve an employee from his position is the choice of the manager.

Drunkenness

The legislation notes several significant nuances to the dismissal procedure for this reason. In this case, a number of conditions must be met. First of all, the fact of being in a state of intoxication directly at the workplace must be recorded, and not just drinking alcohol. Also, the reason will act as a significant circumstance only if the employee appeared at the enterprise in this form during his shift. Thirdly, intoxication is considered not only the state after drinking alcohol, but also any other state that arises from the use of narcotic or other toxic substances.

Loss of trust

Only financially responsible employees can be fired for this reason. These include, in particular, those who have access to money or other assets of the enterprise, receive them, distribute them, store them, etc. Such financially responsible persons may be:

• Cashier.
• Warehouse manager.
• Accountant.
• Economist.
• Salesman.
• Forwarder and so on.

Loss of trust may be the result of intentional misconduct or negligence, a careless attitude to one's duties. As in the case of absenteeism, the employee's guilt must be proven. A report, audit or inventory report can confirm an employee’s unlawful actions.

Dismissal at will: article Labor Code

This is the most common way to terminate a contract. Every day, many employees, of their own free will or on the recommendation of their superiors, vacate their positions in this way. However, from a legal point of view, this will always be a voluntary dismissal. Article TC No. 80 regulates this procedure. It is worth noting that it does not present such difficulties as in other cases. Thus, if an employee commits any disciplinary offenses, his guilt must be proven.

If dismissal is made at one’s own request, the article of the Labor Code of the Russian Federation only requires that the specialist must notify the employer 2 weeks before the expected date of departure of his intention. In general, the procedure for obtaining dismissal from office in such cases is not difficult. As in other situations, a corresponding entry is made in the labor record: “Dismissal under Article 80.” To begin this procedure, the specialist must write a statement. The employee has the right not to explain the reasons for his decision. The Labor Code article “Dismissal on one’s own” does not carry any negative consequences. However, you should be prepared for the fact that when applying for a new position, the head of another company or a representative of the HR department will be interested in the reasons for this decision.

Design features

The dismissal procedure under this article must be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be followed. There are different stages for each case. However, in any situation, failure to comply with any of them can lead to negative consequences. In particular, an employee can appeal against unlawful actions of the employer.

Witnessing a fact

If there is any violation, this stage is considered mandatory. As stated above, in order to be dismissed due to drunkenness, it is necessary to attest to intoxication directly in working hours, and not just the direct fact of drinking alcohol. Theft is proven in 3 stages. In particular, the legislation requires documentary evidence of the offense, as well as a ruling or sentence. Only after this can dismissal occur.

Warning

This stage also has its own characteristics, which depend on the reason why the employee is leaving. For example, upon liquidation of a company with subsequent dissolution of staff, any other change in the routine of activities at the enterprise and reduction in the number of employees, the employer is obliged to notify specialists 2 months before the date on which these events will be carried out. The same conditions are observed when an unqualified employee is dismissed from his position or when the results of his certification are unsatisfactory. If an employee commits a violation (failure to fulfill duties, absenteeism, non-compliance with company regulations, etc.), the employer is obliged to obtain a written explanation from him. After this, the manager has a month to apply disciplinary action to the employee if the reasons are regarded by him as disrespectful. Only one penalty may be applied for each violation. If, for example, a reprimand was issued for absenteeism, then it is impossible to fire the employee for the same offense.

Introduction to the specialist

This stage consists of notifying the employee and presenting him with the appropriate order. The latter indicates the reason why he is being dismissed from office, the basis and the date. The law requires the signature of a specialist on this document. If the order is refused to be certified, an act is drawn up in the presence of witnesses.

Explanatory

The need for this paper has already been mentioned above. The employer must require the employee to provide a written explanation of his conduct. At the same time, the law does not oblige the employee to write this paper. He has the right to refuse the employer. However, the absence of an explanation does not exempt him from disciplinary action. In any case, it will be issued 2 days after the above requirement is presented.

Order

The law requires the publication of two such acts. The first order must confirm the imposition of a penalty in the form of dismissal, and the second acts as a basis for terminating the employment contract. In most cases, the second edition is sufficient. This order must be accompanied by everything regulatory documents. These include, in particular:

• Details of acts and reports.
• Explanatory (if available).
• Other documents that confirm the existence of a valid reason for releasing the employee from his position.

Dismissal at will (Article 80) provides as a mandatory attachment a statement from a specialist. In this case, there is no need to write an explanatory note; you just need to notify the employer of your intention in time.

Personal documents

The employer is obliged to issue the employee his work book on the last day of the employee’s stay at his enterprise. It should have a corresponding mark. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the manager’s decision. To do this, he needs to contact the labor inspectorate or court.

Compensation and payments

They are based on the cost of the dismissal clause. For child care, in the event of staff reduction, liquidation of a company, or on the personal initiative of an employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of release from office. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation, benefits.

Consequences for the employee

They can be different and depend on the article that is indicated in the work book. This can cause various kinds of problems to arise during subsequent employment at another enterprise. Conventionally, the reasons for dismissal are divided into three categories. Each of them provides certain consequences. Thus, the articles are distinguished:

1. Related to the reorganization of the company. If the enterprise complies with the law, the employee should be provided with assistance in placing him in a new place. In this case, the consequences for him are only positive.
2. Not indicated in the work book. For example, there may be a note that the employee vacated the position on his own initiative, but in fact his serious misconduct was simply not made public in order to avoid a scandal. In this case, no particular negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
3. Specified in the labor contract. They can significantly damage your reputation. But in some cases it makes more sense to be honest.

Appealing a manager's decision

If an employee is dismissed without sufficient or legal grounds for this, he has every right to go to court. The authorized body, in turn, at the request of the employee, may make a decision to recover compensation for moral damage from the employer. If the manager’s actions are recognized as unlawful, the employee has the right to ask to change the wording of the reason to “dismissal on his own.” In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he will be given a duplicate. In this case, all entries that were present in it are transferred to the book, with the exception of the one that was declared illegal. The procedure for appealing a decision of a manager is established in Art. 394. In addition to the court, an employee can contact the labor inspectorate and initiate an internal audit at the enterprise to determine whether the activities comply with the law. As practice shows, such litigation does not happen very often. Typically, employees are fired without conflict or fuss.

In order for employers to come to a clear understanding of what can be considered absenteeism and not make unfounded accusations against their employees, we recommend that you familiarize yourself with Article 81 of the Labor Code of the Russian Federation.

So, is it possible to fire someone for absenteeism without an explanation?

In accordance with the provisions of the sixth paragraph of this legislative act, the manager has the right to terminate business relations for own initiative, If individual without any warning, was not at his workplace for a period of four hours or more, or was absent for the entire working day.

That is, if an employee, without good reason for his absence, does not show up for his shift or is not at his workplace for more than four hours, then this fact can be considered a fairly weighty argument for the annulment of the employment agreement under the article for absenteeism.

However, in order to record the fact of absenteeism of a certain individual, it is necessary to understand what is meant by the concept of a workplace.

In this regard, we note that a component part of the space of a certain enterprise, intended for a specific employee to perform his immediate duties and equipped with all necessary equipment, which is necessary to perform labor functions called a workplace.

IMPORTANT INFORMATION! If the employer cannot contact the missing employee for a long time and find out why he is not at work, then dismissing the employee for absenteeism without a valid reason will be legal.

However, you must first take into account the requirements of Article 42 of the Labor Code, which provides regulations regarding what actions and conditions must be met in order for the judicial authorities to recognize an individual as missing.

Article 42. Procedure for developing a project collective agreement and concluding a collective agreement

The procedure for developing a draft collective agreement and concluding a collective agreement is determined by the parties in accordance with this Code and other federal laws.

Many employees automatically have a question regarding how much absenteeism they need to quit and still remain in their job. The head of any organization can fire someone for absence from the workplace, who was absent only once, without a valid explanation for this action.

However, this is only the right of the employer, but not his obligation. In connection with this fact, each manager decides at his own discretion for how many absences to fire an employee.

Often, in the case of a one-time absence, a milder disciplinary punishment is applied, and if absenteeism smoothly turns into systematic, then this is already considered a gross violation and, as a rule, ends in dismissal for long absences.

Category of individuals not subject to dismissal due to absence from work

Before punishing a certain employee for committing a disciplinary violation, in this case absence from work, the employer must understand which category this employee belongs to.

Since the current legislative acts have accepted that it is impossible to sever employment relationships due to absenteeism with the following groups of individuals:

• pregnant workers.

  Below you can see an example document:
  
  

• Act. Drawing up the act serves as the second stage in the dismissal procedure due to absenteeism. The essence of this document is to confirm the fact of absenteeism.

  The act is filled out in free form and necessarily includes information that contains information about the head of the organization (position, last name, first name and patronymic), as well as personal data about employees who are not interested in the outcome of the punishment who witnessed violations.

  It should also be noted in the document that the reason for the absence is unknown or is not valid, describe the violation in detail, including dates of absence and duration, indicate the full name and position of the offending employee, and at the end put the signatures of the manager and witnesses to the absence. The employee himself also needs to sign, thereby confirming his familiarity with the act.

  In the picture you can see an example of an act of absence from work:

  
  

• 
  Notification. The manager must issue a notice and provide it to the employee, since it serves as a kind of warning signal requiring him to report to work and explain the reasons for his absence.

  The notice specifies the period before which an individual can appear at work and influence the employer’s decision; it also states that otherwise, all necessary documents with the date of dismissal for absenteeism, and at the end there is a reference to Article 81 of the Labor Code.

• Explanatory note. If an individual who has received a notice from the manager decides to report to work within the time period established in the document or on the day of dismissal due to prolonged absenteeism, then he should be required to write an explanatory note.

  There is no established form for this document, so the employee simply needs to indicate his identity, position, days of absence and succinctly explain why he did not come to work. In some cases, a document confirming the employee’s explanations must be attached to the explanatory note.

  In the photo below you can see an example of an explanatory note:
  
  

• Order of dismissal. If the employer has not received explanatory note, or considered that the reasons for non-appearance were not valid, then he must issue an order giving instructions to terminate the employment contract.

  The order is drawn up in form No. T-8. In the “grounds for dismissal” column, you need to write that the termination of the employment agreement occurs for absenteeism, which was committed on a certain date, and mention the sixth paragraph (letter “a”) of Article 81 of the current code.

  And in the line requiring you to indicate the documents that served as the basis for dismissal for absenteeism, refer to the above-mentioned act and memorandum. You also need to write down their number and date of compilation. In all other respects, the order of dismissal for absenteeism is no different from other orders.

  The picture shows an example of a dismissal order:
  
  

FOR REFERENCE! If the employer begins to doubt the correctness of his actions, then the answers to all additional questions that have arisen regarding correct order application of disciplinary punishment can be found in Article 193 of the Labor Code.

Actions of the employer if the whereabouts of the employee are unknown

Sometimes it happens that difficulties arise in dismissal due to long absences of an employee. He suddenly disappears and it is impossible to find him, and in this case the manager has the right to carry out the procedure for dismissing the missing employee, arguing that he is absent from the workplace.

The employer needs to do the following:

1. will write a letter addressed to the missing employee, which contains a request to come to work, and send his registration to the place where he is registered. It is advisable to repeat this action several times.
2. Contact the hospital at the place of registration of an individual whose whereabouts are currently unknown in order to search for the missing employee.
3. Sends a request to the police department located at the employee’s place of residence, requiring information about the missing individual.

If all of the above instructions are unsuccessful, then the manager can safely fire the employee for absenteeism. However, after this it is also worth sending a letter to the employee’s registered address, notifying him of the fact of dismissal.

IMPORTANT! If an already dismissed individual appears, whose whereabouts were previously unknown and he provides valid reasons for his absence to the judicial authorities, the manager will be obliged to reinstate him.

Payments

After termination of the business contract by both parties, the dismissed individual, including the absenteeist, is obliged to receive a number of monetary payments on the day of dismissal for absenteeism, which are due to him by law. Thus, the accounting department must accrue compensation for all periods that were intended for the employee to take vacation, but he did not have time to take advantage of them.

Also, the employee must receive full payment for all days actually worked that were not taken into account and paid along with the previous salary.

Entry in the work book of a truant

As you know, upon dismissal, the reason for termination must be indicated in the work book. business relations and an article confirming the legality of these actions is indicated. Since absenteeism is considered a gross disciplinary violation, such a mark in the work record book usually brings a lot of unpleasant consequences when an employee is dismissed under an article for absenteeism.

What are the consequences of dismissal under an article for absenteeism? After dismissal for absenteeism, the unpleasant consequence for the employee will be that when looking for a new job, almost no employer wants to take responsibility by hiring a absentee. Since in the event of a sudden absence of such an employee from work, a breakdown may occur production process, and the organization may suffer significant losses.

Below you can see a sample entry in the work book about dismissal for absenteeism:

Employer's liability for illegal actions

Employers always need to remember that they bear administrative responsibility in case of violation of the dismissal procedure. Also, the head of the organization will be held liable if the individual with whom the labor contract will challenge and prove in court that he was not at work for good reasons.

In this case, the judicial authorities will not only decide to return the employee to old place labor, but they will also be forced to make a full calculation of all amounts of money required for the employee by law and payment for forced absenteeism in case of illegal dismissal.

The employer will also have to accrue and pay cash for all those days that he previously counted as absenteeism.

Thus, the procedure for terminating a business relationship with a truant worker is quite complicated and has many features. However, if you carefully read the recommendations in this article and take them into account when leaving, this process will become much easier. We wish you success!

In the case when an employee is fired from a position under an article of the Labor Code of the Russian Federation, a corresponding entry is made in the work book and the question arises of what to do for further employment. The law establishes 14 reasons why an employer can terminate cooperation. What to do if being registered as an employee prevents you from taking a new job?

The paragraph and article number matter

In office work, there is no such thing as dismissal under an article; in fact, any severance of labor relations is regulated by one or another article of the Labor Code of the Russian Federation. The only difference is that some wording corresponds to termination of the contract at the initiative of the employee (Article 80) or by agreement of the parties (Article 78), while others cast the former employee in an unflattering light (Article 81).
The last group includes “guilty” grounds, the consideration of which is under the jurisdiction of labor inspection and courts.

	Decoding the reason for dismissal
P. 3	The employee does not correspond to the position he holds; his incompetence and low qualifications are confirmed by certification.
P. 5	The employee systematically fails to fulfill the obligations stipulated in the contract and does not have valid reasons. There is already a disciplinary action in the case.
P. 6	Gross violation of duties, in particular absenteeism, being drunk at work, disclosing secrets. Dismissal is also carried out in connection with theft of property, money, or waste of the enterprise's budget. Violations of safety regulations are also one of the reasons for termination of the agreement.
P. 7	The employee’s activities related to money or property turnover caused a loss of trust among his superiors.
P. 8	Immoral behavior of a person performing an educational function.
P. 9	If the employee held leadership position and made an unreasonable decision that resulted in damage to the company’s property.
P. 10	A person in a leadership position or those replacing him committed a gross violation of the contract (once).
P. 11	During employment, false certificates, certificates or other documents were provided.

According to Article 71, the employer has the right to dismiss an employee if, during the period probationary period he didn't show himself properly. The employer can also refer to paragraph 11 of Article 77, according to which violations of the Labor Code of the Russian Federation were committed when drawing up an agreement between the employee and the boss.

In approximately 87% of cases, the termination of an employment contract at the initiative of superiors is caused by the employee’s violation of his obligations. As a rule, management makes concessions and makes an entry in the labor report corresponding to Article 78 or 80, but sometimes it is not possible to reach an agreement, and the book becomes “spoiled.”

For reference! Often, the employer threatens dismissal under the article if the employee does not sign the application of his own free will. However, due to “guilty” circumstances, they are not fired if the person strictly fulfilled his duties.

What to do if there is an entry in the employment record indicating dismissal under an article?

Every time a person gets a new job, he has an interview, which begins with studying a package of documents. A “spoiled” work record instills fear in an employee, and many believe that with dismissal under the article, the career comes to a dead end. There are several ways out of this situation.

Agreement with management

You can prevent dismissal due to “guilty” circumstances by reaching an agreement with the HR department and management. This option is often used if the company itself does not comply with the Labor Code of the Russian Federation. It is enough to promise silence in exchange for an entry in the employment record; it is advisable to have some evidence of administrative violations to be on the safe side.

Loss and replacement of labor

The easiest way out for most laid-off workers is to lose their work record book. In this case, when applying for a new job, you should submit an application requesting a new document. However, information about length of service and previously held positions will not be reflected.

Fact! The HR department can only make entries regarding the position the person holds in the current company. You can restore data about work at other enterprises, that is, a duplicate book, at previous place work.

If a person was fired from his last job, you can contact the penultimate employer to create a duplicate. However, it is worth considering that information about the position from which the employee was dismissed due to “ bad article”, also exists in the Pension Fund of the Russian Federation, since management is obliged to make deductions.

Going to court

To protect their rights in case of controversial issues, a person has the right to go to court - this is regulated by Article 392. According to the law, this can be done within 30 days from the date of receipt of a copy of the dismissal order. At the same time, the claim should indicate demands not only for reinstatement, but also for monetary compensation due to forced downtime at work.

For reference! Former employee does not pay the fee and court costs (Article 393).

If during court session It will become known that the dismissal was groundless, the process of terminating the contract was in violation of the Labor Code, and it is possible to receive moral compensation. The court determines its size individually.
In most cases, the court makes a decision in favor of the dismissed person, but in the future he should be careful. It is recommended that you re-read the contract and act strictly in accordance with it. The employer may offer to resign, force you to leave your position, and in no case should you be provoked.

Behavior in a conversation with a new employer

Further employment depends not only on the records in the employment record, but also on how the person behaves in front of the new employer. If you want to get a job in a company, you need to focus the recruiter’s attention on your education and work experience. You should not talk about your past employer, much less speak about him in a negative light. It is enough to briefly describe the situation as a misunderstanding.

Some managers stop requiring labor documents when applying for employment, receiving information about their length of service from the Pension Fund of the Russian Federation. In this case, you can hide the information and calmly get a job.

 

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