Worst article on dismissal. How do I fire an employee? Why can an employee be fired? The dismissal order is a sample. Dismissal for violation of labor regulations

Today, there are several ways to fire an officially employed employee. One of the most unpleasant is the dismissal under the article. Most often this happens due to ordinary absenteeism.

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Legal basis

On the basis of this provision, the employer can unilaterally terminate the employment contract with his employee.

Today, the version of the Federal Law of June 30, 2006 is used. But not for every absenteeism an officially employed employee can be fired.

This requires the coincidence of a large number of different factors:

the employee was absent from his place the whole day - even if the working time is only a few hours (if the working day is full - then at least 4 hours in a row);
the employee is absent directly from his workplace, but if such a place is not assigned to the employee and he was somewhere on the territory of the enterprise, absenteeism is not counted;
the employee is absent for no valid reason;
absence is proven.

A good reason means any situation that prevents an employee from arriving at his workplace on time. For example:

interruptions in public transport;
summons to trial;
disease;
crash.

It is only important that there is appropriate documentary evidence of the presence of compelling circumstances.

It can be a sick leave or something else. At the same time, if the employee could not warn the management about his absence in advance or on time, this is not the reason for the imposition of a disciplinary sanction.

For the formation of an appropriate order of dismissal for absenteeism, documentary justification is required.

All claims that are grounds for dismissal must be justified and proven, recorded. At the same time, the procedure for bringing an employee to disciplinary responsibility must be followed without fail.

The execution of the order of dismissal for absenteeism itself has the following features:

it is not required to issue two documents (on disciplinary sanctions and on dismissal) - the order itself is enough;
for the formation of the document in question, a unified form is used.

At the same time, various reports are indicated as a basis, as well as other documents confirming the fact of absenteeism. If the employment contract with the employee is terminated in this way, then a corresponding entry is made in the employment book.

If there are any disputes between the employee and the employer, you must focus on the following documents:

Labor Code of the Russian Federation of December 30, 2001 (as amended by Law No. 197-FZ);
Resolution of the Plenum of the Supreme Court of the Russian Federation of 03.17.

Effects

Dismissal for truancy entails quite serious consequences. That is why it is worth avoiding this, since later it will be quite difficult to get a job - a corresponding entry is made in the work book: pp. "A" part 1 of article 81 of the Labor Code of the Russian Federation.

Usually, the wording itself is as follows: "The employment contract is terminated due to a gross violation of labor duties by the employee."

Almost always, the employer scrutinizes the work book of his potential employee.

And the presence of such a record immediately characterizes a person as unreliable. But this moment is the only unpleasant consequence for those who were dismissed under the article for absenteeism.

Quite often, a situation occurs when dismissal for absenteeism occurs as a result of going on vacation without warning or due to an untimely exit.

But in this case, the employer has the right to threaten dismissal only if there is no schedule. Which is also a serious violation and a fairly serious fine is imposed for this.

Therefore, in such a situation, most employers try to find a compromise with their employees.

How to avoid being fired for absenteeism

Violation of the Labor Code always threatens with rather serious problems. But there are always various ways to get out of a difficult situation when there are reasons for the employer to fire his employee for absenteeism. Moreover, such actions are completely legal.

For example, when an employee is absent from his workplace for more than 4 hours, the employer has every right to initiate the disciplinary procedure.

According to Art. No. 193 of the Labor Code of the Russian Federation, the employee must provide the personnel department with an appropriate justification for his absence from the workplace.

But at the same time, according to the same Labor Code of the Russian Federation, the employee must be given at least 2 working days to form an appropriate explanatory letter.

In this case, it is necessary to put an appropriate mark with your employer - so that later the employee of the personnel department does not have the right to draw up an appropriate act on failure to provide an explanatory note.

In this way, you can win two whole days. During all this time, you must do the following:

write a statement of your own free will;
urgently "get sick" and take a sick leave or go to donate blood.

If an employee decides to write a letter of resignation of his own free will, in most cases the organization will not interfere with him.

Since terminating an employment contract in this way is much easier than carrying out the procedure for dismissal for absenteeism. Almost always some compromise can be found with management.

The second way is to take a sick leave. Of course, nothing needs to be falsified. Since forgery of a sheet confirming incapacity for work, a serious penalty is provided in accordance with the relevant article of the Criminal Code.

But when you visit a doctor, you must indicate the date of the onset of the disease - he must fill out the form accordingly.

It will simply be necessary to designate it as a truancy day. In this case, the employer will have no right to fire for absenteeism or impose any penalty.

The third way to legally evade responsibility for absenteeism is to donate blood. According to the Labor Code of the Russian Federation, the employee is released from his immediate duties, as well as the next day.

But it should be remembered that the employer must be notified of the fact of using the next day for rest due to blood donation.

In this case, it is necessary to be guided by the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated 03.17.04.

When using the latter method, you must proceed as follows (if dismissal is inevitable):

write a letter of resignation;
get sick for two weeks.

After that, you can safely pick up the work book - the personnel department is obliged to make a record of termination of the employment contract at the request of the employee himself.

The two-week period is necessary due to the obligation to notify the employer in advance of voluntary dismissal.

In all the cases indicated above, the employer simply does not have the right to fire his employee for absenteeism for the following reasons:

Further, you should not appear at work on the day of dismissal of your own free will - you must continue to get sick. When a certain deadline is over, the employer simply has to send a notification by mail with a request to appear for a work book.

If for some reason the employee does not want to visit the former place of work, you can receive this document by mail.

Many employers often need to find out how to fire an employee without his desire under the law. Given the very strict requirements of labor legislation, as well as the fact that very often employees, especially pensioners, do not want to quit, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers in the end are even forced to conduct activities to their own detriment, instead of looking for information on how to dismiss an employee under the article and without consequences. However, there is always a way out of this situation - after all, labor legislation protects the rights of not only employees, but also employers.

How to fire an employee without his desire by law in 2018

Situations in which the employer wants to fire an employee without his desire under the law are extremely common in 2018 - some employees may take actions that are clearly destructive for the company, do not correspond to the team and spoil the working environment, or the need for dismissal may be caused by third-party circumstances. At the same time, very often employees use the fact of protection from the law and in every possible way prevent their dismissal. Therefore, in case of illiterate actions, the employer is either forced to endure their presence and incur certain costs because of this, or is exposed to the risk of being prosecuted for illegal dismissal.

However, the law also protects employers by providing them with such tools to influence workers:

This is the best option, since it will allow the employee not to receive negative entries in the work book, and the employer will relieve the employer from possible claims. At the same time, you can both convince the employee to write, and draw up an agreement with him to terminate the employment contract - the second case provides for the opportunity to provide the employee with any guarantees and payments in accordance with the provisions of Article 78 of the Labor Code of the Russian Federation. However, not every employee will take such actions - if he is determined to stay at work at any cost, then it will be impossible to fire him in this way.
Current legislation gives the employer the power to take disciplinary action against employees, up to and including dismissal for a specific list of misconduct. At the same time, the range of grounds for dismissal is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an unwanted employee if he does not follow instructions or grossly violates labor discipline.
In cases where the main purpose of dismissal is to save the company's finances, it may be a good option for dismissing an employee without his desire by law, namely, staff reduction. However, it should be remembered that this method requires the strictest adherence to procedural requirements and is associated with additional costs for the employer.
If it is necessary to fire an employee who does not want to quit, having a probationary period will greatly simplify the termination procedure. However, with this nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.
Repeated violation of labor rules... If the employee did not commit gross guilty actions, because of which he could be fired immediately, then if there are several disciplinary sanctions, he can still be fired under the article.
Inconsistency or insufficient . In some situations, an employee can be fired for inappropriateness for the position held or due to insufficient qualifications.
If an employee who does not want to quit occupies a managerial position, he can be fired without any other reason when the owner of the enterprise changes. Sometimes employers even have to specifically resort to a change of ownership in order to fire an employee who threatens the activities of the entire company.
The employer has the right to independently change the working conditions for individual positions or for the entire enterprise as a whole, which makes it possible to put the employee in such conditions that will make his further work simply unprofitable. And although the employee has the right not to agree to work on the changed conditions, the employer will have the opportunity to fire him, observing a number of certain procedural actions.

There are some categories of employees who cannot be dismissed at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be dismissed, even when committing gross misconduct and guilty actions against the employer. The possibility of dismissing an employee who has a child under three years of age is also limited - if this employee is a woman or the sole breadwinner.

Each of the above methods of dismissal has its own characteristics, advantages and disadvantages, as well as many nuances of the procedural registration of the procedure, so they should be considered separately in order to know how to properly dismiss an employee by law in 2018 if he does not want to leave.

How to get an employee to quit of his own free will or agreement

In many, even conflict situations, if there is a need to get rid of an unwanted employee, employers simply do not know how to force an employee to quit of his own free will or to persuade him to stop working by agreement of the parties. At the same time, there are enough possible actions that can be taken in order for the employee to make the right decision, even when he is initially set to conflict with the employer.

First of all, you should use polite treatment with the employee and find out why he does not want to leave and what actions the employer can do for the employee. This may be additional monetary compensation, formalized by agreement of the parties, drawing up positive recommendations or other benefits that may persuade the worker to cooperate. However, it is not a fact that the employee will accept them.

Therefore, then the employee should be explained that he will not achieve anything by the conflict, and the employer will have significant opportunities to “ruin” the employee's life. In particular, it is necessary to notify him that a "bad" entry in the work book will significantly complicate employment. In addition, the employer can make a negative recommendation about the employee. But even these methods of influence do not work for every employee.

In this case, the simplest tactic of action would be to use all the tools that legislation provides. For example, initiate the recording of the employee's working time, issue him all instructions in the form of written orders with acts of acceptance and record each result or error in the employee's activities in order to find another reason for dismissal. The employer may also need to resort to one of the following methods.

The most convenient for the employer will be the dismissal of employees, if initially the working conditions are stipulated as clearly as possible in the employment contract, but with the possibility of the employer making certain assumptions. For example, the employer has the right to establish a low salary for an employee or not indicate a specific place of work within one locality - then he will have the right to deprive the employee of the bonus part of his salary, if such an opportunity is provided for by local regulations, or to transfer him from place to place without his consent ...

In general, these methods of action are legal, but they cannot guarantee a 100% result. Therefore, if they fail, you will have to use other techniques. It should be noted that even voluntary dismissal can be challenged in court if it was made with duress. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then judicial practice demonstrates the minimum number of decisions in favor of the employee, since such dismissal is almost impossible to challenge.

Dismissal of a pregnant woman of her own free will, as well as by agreement of the parties, is an exception. In this case, the court most often takes the side of the employee if the employer did not provide her with adequate compensation upon dismissal, comparable to the possible benefits that she would have received if she remained at work.

How to fire an employee for a gross violation

The current legislation suggests a number of grounds on which an employee can be dismissed for a gross violation. However, the employer should remember that each such violation must be accurately and reliably documented in the manner prescribed by law. Gross violations that allow dismissing an employee for the sole fact of their implementation include:

This is an exceptional list of circumstances in connection with which it is possible to fire an employee without his desire under the law in 2018 in connection with a one-time misconduct. In this case, the employer will be required to complete the following procedural procedures:

Start an official investigation into the circumstances that happened.
Request an explanation from the employee.
Issue an order to dismiss the employee.
Issue to the employee a work book, the funds owed to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judicial authorities impose on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that if absenteeism for a good reason, an employee cannot be fired if the state of intoxication was not recorded by authorized persons - the employee also cannot be fired, the disclosure of secrets or personal data must have all signs of disclosure.

The notification of the employee and the issuance to him of all documents related to the dismissal must be carried out in the presence of witnesses and with their signatures about the transfer of documents to the employee and, if there is one, about the employee's refusal to accept them.

How to fire for inadequacy or insufficient qualifications

If the employee does not correspond to the position held or has insufficient qualifications, the employer has the right to terminate the employment relationship with him. At the same time, it should be remembered that this basis for dismissal must indeed take place and certain confirmations. In addition, the very establishment of the qualifications and compliance with the job requirements of the employee must be carried out in independent centers for the assessment of qualifications, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should take into account that fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for the services to confirm the qualifications of the employee.

A mandatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. It will be possible to finally terminate the relationship only if there are no such positions in the company, or if the employee refuses to take them.

How to fire an employee without his desire by law by changing the terms of the contract

A common method used to fire an employee without their desire by law in 2018 is to change the terms of the employment contract. According to the law, the employer can make such changes only if the employee agrees. However, a number of actions and situations allow making changes without the consent of the employee.

In this case, the employer only needs to notify employees 2 months in advance of the change in working conditions, including the place of work, size or payment system, job responsibilities, in connection with the reorganization of production processes. The very fact of reorganization must also be confirmed by internal regulations. Employees who disagree with these changes should be given the opportunity to take any other vacant position at the enterprise suitable for them in terms of qualifications and health - and only after their refusal or in the absence of the indicated positions, they can be dismissed.

How to dismiss on probation

If an employee needs to be dismissed without his desire during a probationary period, the provisions of the current legislation give the employer additional opportunities to carry out this procedure. In particular, he can inform the employee about his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputable situations must take into account the following nuances:

It is the employer who must provide evidence confirming the employee's failure to pass the test. In their absence, the dismissal will be considered illegal.
The employee must be legally on probation. And this period cannot be assigned to young professionals, pregnant women and minor citizens.

Therefore, in the main, challenging the dismissal on a probationary period is based precisely on the two above grounds. And it is the employer who should worry about the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to cut an employee without his desire

If it is necessary to reduce an employee without his desire, the employer has the right to do this in accordance with the provisions of Article 81 of the Labor Code of the Russian Federation. It should be remembered that the employer in connection with such a dismissal is assigned a number of responsibilities:

Advance notice of laid off workers. Employees must be notified at least two months in advance of the upcoming layoff.
Mandatory notification to all regulatory authorities. Namely - a trade union organization, an employment center.
Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
Implementation of social guarantees in relation to certain categories of employees. These guarantees include both a complete ban on layoffs of some workers and the right of workers to preferential leave in the workplace.
Offer all vacancies. The employer, as in many other situations, is obliged to provide the downsized with the opportunity to find other suitable vacancies.

You can also read in more detail about the features of layoffs for staff reduction, where all the nuances of this procedure are considered.

How to fire an employee without his desire according to the law in 2018 - other nuances and features

In case you need to fire an employee without his desire by law in 2018, there are also many other additional nuances and features that unscrupulous employees can use in order to keep them at work. In particular, regardless of the circumstances, the dismissal of employees who are on sick leave or on vacation is expressly prohibited. In this case, it is necessary to notify the employee in writing about the need to sign his consent to dismissal on the indicated date, or else - to first require such consent from him.

An attempt to fire a pensioner without his desire under the law in 2018 can bring particular difficulties to the employer. In practice, there are no regulations that would specifically regulate the procedure for dismissal or retirement at work. An exception is the civil service of any nature - in this case, the age limit at which an employee can be in office is 65 years and he will not be able to challenge such dismissal.

It should also be remembered that the dismissal of managers upon a change of ownership is allowed without any other grounds for terminating the employment contract. But it is necessary to understand that only the direct manager of the enterprise, his deputy, as well as the chief accountant, belong to managerial positions in this context.

Under what conditions is it impossible to fire an employee who is not to be fired, what is the pre-emptive right to remain at work and when the courts do not take it into account? Knowing the answers to these questions will allow you to complete the termination procedure while respecting the rights of both parties.

Who cannot be fired at the initiative of the employer

The Labor Code stipulates not only cases when the employer has the right to fire an employee, but also situations when the organization is deprived of such a right. The introduction of a list of persons whom the employer cannot dismiss at will is due to the less protected status of such workers in comparison with the rest. It is best to present them in the form of a table:

Base	Laborer	The period during which dismissal is impossible	Exceptions (when an employee can be fired)
	Temporarily disabled	Sick leave period	Liquidation of the employing organization (termination of the sole proprietorship)
	Worker on vacation	Vacation period
Art. 261 of the Labor Code, paragraph 27 of the Resolution of the Plenum of the RF Armed Forces "On the Application of Legislation Regulating the Labor of Women ..." dated 28.01.2014 No. 1	Pregnant	Maternity leave. One week from the day when the employer found out about the end of the pregnancy for reasons other than childbirth	Organization (IP) is being liquidated. A pregnant woman was hired to the place of a temporarily absent employee, the term of her employment contract has expired, and it is impossible to transfer her to another position
Art. 81, 261, 336 TC,	An employee with a child under 3 years old	Up to 3 years of age	The organization or individual entrepreneur is being liquidated. An employee who has a disciplinary sanction, without a valid reason, has not performed labor duties 2 or more times. Gross violation of labor discipline by an employee (drunkenness at work, absenteeism, disclosure of secrets, theft from work, violation of labor protection rules). Providing forged documents when applying for a job. Loss of confidence in the value worker. Committing an immoral act by an employee performing an educational function. Violation of the head of the organization, municipal or civil servant of the Law "On Combating Corruption" dated 25.12.2008 No. 273-FZ in terms of concealing information about income and expenses or failure to act in the event of a conflict of interest. An employee-teacher has committed violence, mental or physical, against a pupil, student
	Single mother or other person, in her absence, raising a disabled minor	Up to 18 years of age disabled
	Single mother or other person, in her absence, raising a minor	Up to the 14th birthday of the child
	The sole breadwinner of a disabled minor	Up to the 18th birthday of a disabled child
	The sole breadwinner of the young	Up to the 14th birthday of the child
	A woman raising three or more young children when the other parent is unemployed	Until the child's 14th birthday or the second parent starts working

Don't know your rights?

Preemptive Right: Who Can't Be Fired When Downsizing

A kind of immunity from dismissal in case of staff reductions in accordance with Art. 179 TC have workers who have shown the highest labor productivity and have the highest qualifications compared to the rest.

If the first condition is equal, the employer takes into account the additional circumstances provided for in Part 2 of Art. 179 TC. So, in accordance with the norm in such conditions, employees should be left at work:

with two or more dependents;
the only workers in the family;
have received an occupational disease or work injury at their current place of work;
disabled people of the Second World War or military operations;
in parallel with work, raising qualifications.

inventors (Article 35 of the USSR Law "On Inventions in the USSR" dated May 31, 1991, No. 2213-1);
workers at their first job after military service (Art. 23 of the Law "On the Status of Servicemen" dated May 27, 1998 No. 76-FZ);
spouses of servicemen serving in state organizations and military units (Article 10 of Law No. 76-FZ).

In addition, the employer, by virtue of Part 3 of Art. 179 of the Labor Code, may stipulate the preemptive right to remain at work for other categories of workers - in a collective agreement or other act of the enterprise.

INTERESTING! As the court practice shows, in certain situations the pre-emptive right may not be taken into account. In particular, the judicial board of the Sverdlovsk Regional Court in the appeal ruling dated 05/27/2016 in case No. 33-9214 / 2016 indicated: if by order of the employer all available staffing positions are reduced for one position, there is no basis for considering the issue of the priority right of individual employees.

Preemptive right: which categories can not be reduced when the number of employees decreases

The list of persons with the pre-emptive right to maintain employment while reducing the number of staff, according to Art. 179 of the Labor Code, coincides with the list of employees who have the same guarantees in case of staff reduction.

IMPORTANT! Dismissal based on the results of a reduction in the number of employees or a reduction in staff without taking into account the employee's pre-emptive right is unlawful and can be appealed in court. If the employer cannot fulfill the obligation to prove the justification of the dismissal established by clause 23 of the resolution of the Plenum of the Supreme Court "On the application by the courts ..." dated March 17, 2004 No. 2, the courts usually come to the conclusion that the dismissal is illegal and reinstate the dismissed one.

Thus, the Supreme Court of the Altai Republic, by its ruling of 11.26.2014 in case No. 33-955, reinstated the employee at work, since the employer did not provide evidence of compliance with the order of dismissal under Art. 179 of the Labor Code and evidence that other employees have a pre-emptive right over the plaintiff.

In the ruling of appeal dated May 31, 2016 No. 33-3600 / 2016 of the Khanty-Mansi Autonomous Okrug-Yugra court, dismissal without considering the issue of priority rights of employees was also recognized as illegal.

At the same time, there is no need to analyze the preferential rights of workers if the employee used the provided Art. 180 TC the right to terminate work ahead of schedule, having received compensation. As indicated in the appellate ruling of the Supreme Court of the Komi Republic dated August 26, 2013 No. 33-4492 / 2013, the presence of consent to early termination of work indicates the employee's consent to the upcoming termination of employment, which frees the employer from establishing the existence of circumstances giving the employee the pre-emptive right to leave at work.

Additional conditions under which it is impossible to fire an employee

In addition to the list of persons whom the employer has no right to dismiss within a certain period of time, the Labor Code also names a number of additional conditions that prevent the dismissal of an employee on the initiative of the employer. All of them relate to violations of the dismissal procedure:

The reason for dismissal is not relevant.
This condition applies, in particular, to the case provided for in Part 5 of Art. 81 of the Labor Code, according to which it is impossible to dismiss an employee for guilty actions that led to a loss of trust, or for an immoral act committed not in connection with work, if more than a year has passed since the discovery of such actions by the employer.
Additional terms of dismissal are not met.
For example, according to Art. 269 \u200b\u200bof the Labor Code of a minor employee can be dismissed only after obtaining consent from the supervisory authorities:
- juvenile commissions;
- State Labor Inspection.
Failure to notify or shorten the time period for notifying an employee or union of a planned dismissal.
The warning period varies from 3 months to warn the trade union about the impending mass dismissal of workers (Article 82 of the Labor Code) to 3 days to warn an employee who has shown unsatisfactory results of cooperation on a probationary period (Article 71 of the Labor Code). This basis is common to any employer and employee.
Failure to comply with the requirements for the content of the notice of dismissal of the employee.
In practice, such a basis is rather shaky, since there is no single list of requirements of the Labor Code. Separate requirements are provided for by Art. 81 and 180 of the Labor Code, the Procedure for the submission of notifications by employers and customers of work (services), approved. by order of the FMS dated June 28, 2010 No. 147, and also contained in court rulings.

Litigation in cases of failure to notify of dismissal

Whether the employee will be reinstated in his position or not, if he, presumably, was not notified of the upcoming dismissal, depends on the specific circumstances.

In practice, it is not uncommon for an employee to ask to reinstate him at work, referring to the fact that the employer did not notify him of the upcoming dismissal. The case file reflects that the employee refused to sign the notification presented to him, but the personnel officer reads the notification to the employee aloud, about which a mark is made on the document. The courts, having received proof of proper notification, refuse to be reinstated at work (see the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated 05.10.2016 in case No. 33-19651 / 2016, the appeal ruling of the Moscow Regional Court dated 01.06.2016 in case No. 33-13162 / 2016, etc. .).

Conversely, if the case file confirms that the employee was not notified, the court will usually reinstate him at work. For example, in the resolution of the FAS ZSO dated 12.04.2011 in case No. A70-9086 / 2010, it is noted that, since the procedure for notifying the employee is not followed, the fixed-term employment contract has lost its urgent nature and by virtue of Art. 58 TC becomes a contract concluded for an indefinite period.

INTERESTING! In the appeal ruling of the Krasnoyarsk Regional Court of August 17, 2016 in case No. 33-11098 / 2016, it is noted that the employer's failure to send a notice to the employee about the termination of a fixed-term employment contract cannot be regarded as an intention to continue the employment relationship, that is, to make the employment contract indefinite.

Some requirements for the content of a notice of dismissal

TC does not contain requirements for the details of the notification and its content, but some requirements are specified in other acts:

Notification section	To whom is it directed	Demand	Base
Requisites	To the employee	Since the decision to terminate the employment relationship is made by the employer or a person authorized by him, the head of the organization, the head of the organization, or the person who has the formalized authority to notify the upcoming dismissal has the right to send a notification of the upcoming dismissal to the employee. The notice sent by the head of the personnel department who does not have the formalized authority to make a decision on dismissal on behalf of the employer is not appropriate	Definition of the RF Armed Forces dated 03.10.2008 No. 89-B08-6
	To the territorial subdivision (TP) of the FMS	For the dismissal of a foreign worker, an additional requirement has been established to notify the TP of the FMS using a unified form containing: - name of TP FMS; - employer status; - information about the employee; - information about work permits, patents; - information on termination of the employment contract. Failure to fill in at least one field of the form means that the notification was made in an inappropriate form, which entails liability under Part 3 of Art. 18.15 Administrative Code	Art. 13 of the law of 25.07.2002 No. 115-FZ "On the legal status of foreign citizens in the Russian Federation"; clause 5 of the Procedure for the submission of notifications by employers and customers of work (services), approved. by order of the FMS dated June 28, 2010 No. 147 and Appendix No. 20 to the order; Resolution of the Arbitration Court of the ZSO dated 11.12.2015 No. F04-27100 / 2015 in case No. A27-9151 / 2015
	To the employee	In case of staff reduction and dismissal due to insufficient qualifications, the employer is obliged to offer the employee to transfer to another vacant position. The employer must notify the dismissed of all vacant positions, already existing and newly introduced, up to the day of dismissal. It seems logical that in case of dismissal due to insufficient qualifications or in connection with a reduction in the number of staff, simultaneously with the notice of dismissal, the employer must notify the worker of the available vacancies	Art. 81, 180 TC; determination of the Omsk Regional Court dated May 23, 2007 No. 33-1597

Let's summarize. The Labor Code regulates in detail the issue of protecting certain categories of workers from unlawful dismissal. In particular, the law has defined the categories of persons, whom the employer can dismiss on his own initiative only in exceptional cases. These include sick workers, pregnant employees, workers on vacation, etc.

In addition, the Labor Code introduced for certain categories of workers a pre-emptive right to keep jobs in case of redundancy. First of all, such privileges are enjoyed by the most useful employees, that is, those whose labor productivity and qualifications are higher than others.

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

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

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

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

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

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

For which they can be fired

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

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

Absenteeism

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

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

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

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

Intoxication and theft

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

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

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

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

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

Marina Skudutis, expert of the magazine "Calculation"

Often, labor cooperation ends with dismissal at the initiative of the employer or the employee himself. If the employer decides to fire his subordinate, then he must do it not just like that, but on the basis of one of the articles of the Labor Code of the Russian Federation.

What are the nominal articles for dismissing an employee? What are the stages of dismissal under the article? What should an employee do if they want to fire him on a false article against his will? Read this article.

The forms of dismissal are regulated by the Labor Code of the Russian Federation. According to him, you can quit using one of the following schemes:

... Those. both the employee and the employer agree to dismissal. The simplest and most "painless" procedure for dismissal, accompanied by the preparation of a letter of dismissal by agreement.

The employment contract has expired. In this case, the dismissal procedure may not begin if one of the parties does not express a desire to take into account the terms of termination of business cooperation and begin the dismissal procedure;

. In this case, the reason can be absolutely any;

In the first three cases, no serious disagreement between the employee and the employer usually arises. However, as for the fourth case, when the employer becomes the initiator of the dismissal, he can cause serious.

As a rule, having made a decision to get rid of one of his subordinates, the employer initially offers the employee to write an application for (so as not to put a “shameful” mark in the work book) and if he expresses his unwillingness, he is dismissed under the article.

Read about in what cases an employee can be dismissed under the article in the next section.

Grounds for dismissal under article

According to the current norms of the Labor Code of the Russian Federation, the dismissal of an employee under the article can be carried out in the following cases:

(according to the article). Example: a young inexperienced employee was hired for a three-month trial period, after which the employer realized that the new employee was not coping with the tasks. In this connection, the decision to dismiss is made;
or bankruptcy at an individual entrepreneur (according to part 1 of article);
Reduction of the working staff for individual entrepreneurs (according to part 2 of article 8 of the Labor Code of the Russian Federation);

According to the Law, if the dismissal of employees is associated with a decrease in the number of employees or the liquidation of an enterprise, the employer must notify all employees of this at least two months in advance (three, in the event of a massive reduction in the workforce). In addition, the employer must inform all territorial labor exchanges about the upcoming reduction, indicating the details of all laid-off workers (profession, position, level of earnings).

. Unlike the first paragraph, where it is more likely an inexperienced specialist, in this paragraph the employee may have extensive experience, but from another area or insufficient to fulfill the specific goals set by his manager (according to paragraph 3 of part 1 of article 81 of the Labor Code of the Russian Federation) ;

In theory, leaders of organizations should organize regular training courses for their employees. However, few employers do this, as a result of which workers are unable to cope with the rapidly changing nature and methods of work. As a result, they are fired, replaced by younger workers with qualifications suitable for the modern style of work.

The employer can dismiss due to insufficient qualifications only if the employee was previously offered another vacancy in the same organization, corresponding to his current qualifications, but he refused to accept it.

Change of leadership (according to clause 4 of part 1 of article 81 of the Labor Code of the Russian Federation);

Dismissal due to disciplinary violation can be carried out within one month from the moment of committing the misconduct (in some cases, not later than one six months).

Serious one-time breach of duty (according to clause "a", "b", "c", "d", "e" of clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation);

According to paragraph "a", dismissal under the article will follow in the event of absenteeism of an employee without specifying a reason for a whole working day (more than four hours).

According to clause "b", dismissal under the article will follow if the employee is at least once under the influence of narcotic or psychotropic drugs.

According to clause "c", dismissal under the article will follow if an employee, being a civil servant, violates the confidentiality of state secrets or divulges them to subordinate employees who do not have access to them.

According to clause "d", dismissal under the article will follow if the employee is caught stealing someone else's (work) property, damaging it or causing serious defects. This fact was recorded by the court as an administrative offense.

According to paragraph "e", dismissal under the article will follow if the employee violated the safety rules at work, as a result of which this led to an industrial accident and harm to the health of other employees. The dismissal can also be caused by disregard of safety rules, which did not lead to sad consequences, but could potentially.

Incompetent attitude towards their labor duties related to money or commodity circulation, in connection with which the employer has lost professional confidence in his subordinate (in accordance with clause 7 of part 1 of article 81 of the Labor Code of the Russian Federation);
Committing actions that contradict moral norms if the employee's labor activity is related to education (in accordance with paragraph 8 of part 1 of article 81 of the Labor Code of the Russian Federation);

Example: a citizen working as a teacher indulged in offensive (obscene language) addressed to students.

Decisions entailing damage to the property of the enterprise (according to clause 9 of part 1 of article 81 of the Labor Code of the Russian Federation);
Falsification of documents when hiring (fake seniority, someone else's passport, fake educational "crusts", etc.), (according to clause 11 of part 1 of article 81 of the Labor Code of the Russian Federation);

Who cannot be fired under the article?

According to part 3 of Article 81 of the Labor Code of the Russian Federation, it is impossible to dismiss the following categories of employees under one of the articles listed in the previous sections:

Employees on sick leave due to illness;
Workers on leave;
Female workers during pregnancy;

Dismissal of the above categories of employees is allowed in case of liquidation of the company. In this case, the dismissed employee receives material compensation equal to at least one month's earnings.

What to do in case of wrongful dismissal under the article?

In the event of dismissal for a reason not prescribed in the Labor Code or one that the employee did not commit, either the district court follows with the appropriate.

Read more about ways to combat illegal dismissal.

In this case, it is thirty days from the day when the employer announced his intention to dismiss the employee under one of the articles of the Labor Code.

After the decision is made by the court, the employee can expect one of the following outcomes of events:

Payment of material compensation for causing moral and material damage;

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