When they can be fired from work under the article. How to fire an employee without his will 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 needs to remember that labor legislation provides him not only with rights, but also requires the fulfillment of certain duties in relation to employees. After all, failure to comply with the requirements and non-compliance with legislative norms deprives the employer of the opportunity to initiate the dismissal of an objectionable employee and leads to serious financial losses.

Legal norms of dismissal "under the article"

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

But the memory remained among the people that the presence in the work book of a reference to article No. 33 meant a labor stigma. This performance was used to intimidate negligent employees, as well as employees who did not obey the requirements of management.

Today, when all the grounds related to the termination of a working relationship at the will of the employer are divided into 12 paragraphs of Article No. 81, the question of what grounds of labor law can be attributed to the so-called calculation “under the article” is decided differently. To this conceptare included all articles of the Code that are based on violations by an employee labor discipline, and, as a consequence, the application of disciplinary sanctions to the violator.

To begin with, let's figure out what these sections of labor legislation are, the grounds for which can be qualified as a person's failure to fulfill labor duties. So, it is permissible to carry out the procedure for disciplinary sanctions, which are governed by the provisions of Articles No. 192 - the Labor Code of the Russian Federation, according to 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-gross” violation committed several times, which is documented at least two times (section No. 81 of the Labor Code of the Russian Federation, paragraph 5 of part one), this includes:
   • non-compliance with the norms and terms of direct labor duties (disruptions in reporting, non-compliance with the requirements of individual job description etc.);
   • ignoring regulations, including technical, local acts, management orders, etc.;
   • non-observance of labor discipline (lateness, absence from the workplace, etc.).
2. For a serious violation committed once (Article No. 81, subparagraphs a - e of paragraph 6 of part one):
   • a) walking;
   • b) appearing at work in a state of alcoholic or drug intoxication;
   • c) disclosure of commercial, official or state secrets;
   • d) theft, embezzlement;
   • e) violation of labor protection standards.
3. Termination of the contract due to loss of confidence (section No. 81, paragraph 7).
4. Termination of the contract for an immoral act (applies only to teachers and educators) - paragraph 8 of article No. 81.
5. For gross mistakes of managers that damage 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, the termination of the contract if false documents are found at the conclusion of the contract is also referred to as a break “under the article”. Since this can be safely attributed to incorrect working behavior.
7. Subject to "discipline" and dismissal "under the article" is a special case when a teacher violates the organization's charter (clause 1 of article No. 336 of the Code).
8. As well as the dismissal of disqualified athletes (for example, due to doping) - article No. 348.11.

It should be noted the obvious: all of the above grounds are included in the articles, the indication of which in the labor immediately raises fair questions from the personnel officer when hiring. This is a kind of "stigma" for a person. As a rule, when a future employer sees such a record, any explanations and comments of a person are not perceived. At best, a person is waiting for a less prestigious job, a lower salary and constant monitoring by the security service or direct management. At worst, rejection vacancies. Therefore, probably 90% of all claims of the dismissed, which are put forward against the decisions of the employer, relate to dismissal under any of these articles.

Dismissal "under the article" can be called a labor stigma, in connection with this, the violator of labor discipline is likely to have problems with further employment

We will not dwell on exceptional cases, consider the most common options, and start with the most used ones.

6 key grounds for dismissal "under the article"

The most common reasons for terminating an employment relationship are absenteeism, alcohol at the workplace, theft, etc. All these work violations are regulated by Article No. 81, subparagraphs "a - e" of the sixth paragraph of the Labor Code of the Russian Federation.

This is the most "strict" section for both sides. On the one hand, even for a single violation from the list of violations of paragraph 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.

And, as stated Supreme Court RF, if it comes to proceedings, it is the employer who must collect and present evidence of the eligibility of such actions.

We will understand the terms and details that labor law uses in the application of these situations.

Absenteeism - the difficulties and nuances of dismissal

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

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 should be carried out in accordance with Article No. 193 of the Labor Code of the Russian Federation, that is, fixing the fact of absenteeism must go through a certain procedure (in more detail, in nuances, we will consider this issue in a separate chapter on step by step instructions for the execution of any claim):

1. Act, service or memorandum of the head (colleagues), indicating that the employee was absent from work.

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

2. Requirement to provide an explanatory note from the employee.
3. In case of refusal of explanations, an act is drawn up, fixing the fact that the employee refused to give 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), a demand is sent to him: to come to work to provide explanations for a 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 of the recording of absenteeism, an order can be issued to terminate the employment contract.

   In a cease and desist order employment contract all grounds are listed: services, acts, notification, 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 a standard, without abbreviations and abbreviations. Possible wording with reference to an article of the Code:

• "fired for absenteeism";
• or “the employment contract was terminated due to a single gross violation of labor duties - absenteeism ...”;
• further, there is a correct reference to an article of the Code;
• visa of the person in charge, the dismissed employee and the seal of the organization.

An entry in the work book for subparagraph "a" (truancy) may look like this

The prerequisites for the issue of absenteeism are clear, there are much more nuances and subtle places here. Therefore, before preparing materials for dismissal for absenteeism, it is recommended to carefully examine and check all points.

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

Please note that you should not dismiss an employee for absenteeism if at least one of the significant conditions for determining a person’s guilt is not established. Therefore, in order not to run into litigation, it is necessary to exclude all errors when dismissing on such a fact.

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

• The employee’s employment contract does not define the working regime (specific days of the week or schedule), therefore, the absence of more than four hours during the work shift cannot be proven, since it is not defined from what hour the countdown begins, and which days are considered working days for the employee.
• The employee's contract does not define him workplace therefore, it is impossible to prove that the person was not there.
• When there are no arguments that the reason for absenteeism is really disrespectful: that is, a full-fledged step-by-step registration procedure has not been carried out disciplinary action or it was carried out with violations.
• If, after fourteen days after the employee submits the application for termination of the contract under own will(written statement), the person did not appear at the workplace.
• 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 legitimately dismiss an employee, since the absence of a person does not give him the right to do so: it is impossible to receive comments or testify that comments about the reason for absenteeism were requested but not given. Thus, until the employee goes to work, and the employer does not ask him for an explanation of the reasons, dismissal for absenteeism is not legitimate.
• Another narrow-minded argument is the serving of an administrative arrest, appointed in accordance with a court decision. This fact does not depend on the will of the employee, therefore it serves as a good reason for absence from work. So, this fact cannot be considered absenteeism.
• During the period when the part-time worker is on a business trip to the main place of work, termination of the contract in this situation is illegal.
• Or another option: a person does not go to work for a reason when 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 "truancy" will not work here, it is necessary to negotiate.

A separate issue here is when an employee is legally entitled to time off or vacation. Let's figure out what situations will not be recognized by the court as a violation of labor discipline:

• absenteeism at the workplace, if the company has a pre-agreed vacation schedule, and the person is resting according to the plan (in this case, it is impossible to make a unilateral ban - only negotiate);
• you cannot refuse a person a day of rest if he participates in a donor program;
• you need to know that granting leave without pay 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 the right of the employer;
• it is also recognized as the duty of the organization to provide additional leave in case of marriage registration.

In the judicial practice of dismissal for absenteeism, there are cases of recognizing the rightness of both the employer and employees. We present both solutions.

Thus, the court recognized legal dismissal when an employee, being on a five-day business trip, finished it 2 days earlier, but, returning to the city where the company is located, went to work only at the end of the period specified in 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 who was fired for absenteeism managed to prove that he skipped work for health reasons without taking a certificate of absence, the company had to reinstate him at work and pay him all the compensation due, including moral damage (with the definition of the court in case No. 33-7511 can be found).

Photo Gallery: Reinstatement Claim Form

IN statement of claim you can specify all the requirements, for starters - reinstate at work (part 1) Requirement No. 2 of the statement of claim may be the payment of wages for the time of forced absenteeism (part 2) You can also indicate in the claims and compensation for moral damage (part 3 of the statement)

Alcohol at work - a simple scheme for dismissal

Termination of the contract due to the use of alcohol or drugs in the workplace (or on the territory of the enterprise) is usually much easier. It does not matter here when the person was convicted of 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 released from his function due to the specified condition or continued to work. If desired, the employer can do this at any time.

In this variant, the violation fixing algorithm will be as follows:

• if possible, a medical examination is carried out, for this it is even allowed to call an ambulance, and it should be noted that other certificates 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 is drawn up and endorsed on the fact of the use of DV;
• an order is issued to terminate the contract with the employee.

The basis indicated in the labor: Dismissed for a single gross violation of labor duties - the appearance 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 the specific reason for dismissal (alcohol) or simply put the details of the article of the Code

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

Privacy Violations

A more interesting option for consideration is the disclosure of legally protected secrets (commercial, official, etc.), which became known to the employee in connection with the performance of his labor duties, including the 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;
• it also clearly states what is considered a secret;
• Confidential data refers only to information obtained by a person in the performance of their official duties(for example, a company's trade secret may include a customer base, sales volumes and dynamics, profits, market intelligence purchased or developed using internal resources, etc.).

If at least one of the listed points is not met, the termination of the relationship under this sub-clause may be declared illegal. As with the rest of this article, it is up to the respondent company to prove the eligibility of applying for dismissal on this basis.

Note that it is impossible to terminate the contract if:

• there is no list of information constituting a commercial, official, other secret;
• if the disclosure of the employee's personal data occurred as a result of their 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 apply a penalty to an employee, the company must develop a protection regulation confidential information. It is introduced by a local regulation, with which all employees must be familiarized against signature. The absence of such a document may be the basis for the cancellation of the application of the penalty in court.

Theft is a reason for dismissal

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

Therefore, it is not enough to catch the thief by the hand, in order to dismiss him under the article, you need to get a decision from the competent authority. So, having the act in hand private security, having fixed the fact of theft, it will not be possible 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 decision.

The entry in the labor goes in this case under the letter "g" (the article is still the same - eighty-first, part one, paragraph 6).

The wording in the labor when passing a court sentence on the basis of "theft" is registered as follows

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

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

In the statement of claim, you need to state everything on the merits of the case (example, part of the statement No. 1) In the lawsuit, you need to provide evidence (example, part of the statement No. 2) Make demands (example, part of the statement No. 3) In the final part, list the attached documents (example, part of the application No. 4)

Dismissal for committing an immoral offense

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

Employees performing technical support duties (watchman, driver, accountant, etc.) cannot be fired on this basis (clause 46 of the Decree of the Plenum of the Supreme Court No. 2 of 03/17/2004).

The concept of "immoral act" is not defined in the legislation. Therefore, the employer independently decides what offense should be considered immoral. In practice, immorality is recognized:

• petty hooliganism;
• drinking alcohol in public place and the involvement of minors in it;
• fights, scandals;
• animal abuse;
• 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.

In the work book in this option, the basis is indicated - 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” must be fired not only from teaching 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 the management, refuses to fulfill his official duties, is absent from the workplace for a long time, and is clearly not eager to fulfill his labor duty, but he comes to receive his salary regularly. With 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 perform labor duties).

You should be aware that when applying such a basis, the following prerequisites must be met:

• violation of labor discipline must be recorded on paper;
• it follows from the wording of the grounds that the committed offense 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;
• Non-gross disciplinary violations are considered:
  • failure to comply with the instructions of the immediate supervisor, which relate to his direct functional duties, fixed in the job description or in the labor contract, failure to meet the deadlines for the performance of work or the submission of reports, other actions that disrupt the work rhythm of the enterprise;
  • frequent unreasonable leaving of the workplace and violation of the rules internal regulations: being late, leaving work before the end of the shift, constant tea drinking, etc .;
  • refusal or evasion of a medical examination of an employee who is in a certain position requiring mandatory examination, or when an employee refuses to undergo (during work) special training, pass qualification exams in health, safety, civil defense, etc.;

Please note: a disciplinary sanction 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. Which makes it possible to fire a person who, in the opinion of the employer, does not meet the proper qualifications. To do this, during the year you need to make at least 2 penalties (for any of the above reasons).

Algorithm for applying disciplinary action and subsequent dismissal

Let's look into 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 perform official duties.

Step-by-step instructions in case of dismissal "under the article" are as follows:

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

   The report can be drawn up on the basis of non-fulfillment of official duties by employees, do not miss the moment that 2 witnesses of the incident must sign on the original

2. The next step is to get an explanation 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 attention of the person that if he does not give an explanation, this will not affect the result, and the DV will still be applied. You can do this in the notification. If the violator does not want to sign the notification, an act of refusal is drawn up.

   In the notification of the provision of explanations, all violations must be indicated (if there were several, as in the example)

3. After 2 working days, if an explanatory note has not been provided, an appropriate act is being prepared.

   If the employee refuses to sign the notification, the text is read aloud to him in front of witnesses, this is enough for notification, an act 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 on it and appoints executors for it. Example: “To the head of the personnel 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 an explanatory note, a person can reasonably say about the reasons for committing a disciplinary offense

5. As soon as the explanatory note or the act of refusal enters 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 for disciplinary action shall indicate 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 personnel 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 event of a serious violation, providing for dismissal after a single violation (Article 81, paragraph 6), you can immediately issue the next order - to terminate the contract. If the DV is less serious, it is necessary to fix the second misconduct 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 elapse between the first and subsequent violation. The next DV is drawn up in the same way as the first, while the documents indicate that the offense was not committed for the first time. For example: “Since I.I. Sidorova was already brought to disciplinary responsibility in February 2018, I consider it necessary to dismiss her for repeated failure to fulfill her labor duties under paragraph 5 of Article No. 81 of the Labor Code of the Russian Federation.
8. Next comes the order to apply a disciplinary sanction, but not in the form of a reprimand, but already with a resolution - the termination of the employment contract under a certain article.
9. The next - final document will be an order to terminate the employment contract with the employee (in the form No. T-8).

   An order to terminate an employment contract with an employee is issued in a standard way, indicating the article and the full reason

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

It is important for both parties: the employer has the right to deprive the bonus, issue a remark or reprimand and dismiss “under the article” even if the person has applied for resignation of his own free will. Norms labor law define here that the relationship between the employee and the employer is terminated only two weeks after the submission of the application. Therefore, violations committed during work can be qualified and accepted for dismissal under “bad” articles.

What you need to know when dismissing "under the article"

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

• The main thing during the procedure is the passage of all stages of imputation of a disciplinary sanction to a dismissed employee. As already mentioned, in some cases one serious misconduct is enough for this, in others - at least two.
• Article No. 192, which defines the forms of DV, refers to penalties only 3 types:
  • a remark - necessarily fixed in writing - is the most loyal punishment;
  • a reprimand that must be documented is the next step in severity;
  • dismissal "under the article" is the most serious DV.
• The next important point is that the termination of an employment relationship “under the article” should take place only if there is a solid evidence base; in this option, when substantiating the legitimacy of the decision, the employer must have a complete package of documentation drawn up in accordance with all legal requirements. The employer thus provides himself with insurance if the dismissed person goes to court. The documents in the hands of the defendant will become real proof of the correctness of the employer.
• At the same time, the company (HR) when terminating the contract under any of these articles must have a set of accompanying labor activity documents, as well as local regulatory legal acts and regulations:
  • job descriptions, if a person is “left” due to non-compliance;
  • Confidentiality clause in case of termination of the contract in case of violation of trade secrets;
  • internal regulations - if you plan 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 violation has been witnessed (the first and only or subsequent);
  • moreover, this time does not include periods when a person was on sick leave (an exception is a b / 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, recovery cannot be made after the expiration of six months;
  • the exception here is a reprimand issued as a result of an audit or financial audit, in this option the employer has 2 years (the period of the trial is not included in this period).
• Sixth, the basic rule for imposing a disciplinary sanction must be observed: the list of DV 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 keep in mind the consequences: when a labor offense is committed and an employee is imputed to the Far East (whether it is a remark or a reprimand), the employer has the right not to pay incentive payments to the employee in full 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 the first part of Article No. 81 of the Labor Code of the Russian Federation).
• You need to know that any employee can be fired “under the article”, if desired, including categories that enjoy concessions for dismissal under other articles (single mothers, part-time mothers with children under three years old, etc.). At the same time, it should be borne in mind that dismissal for any reason (with the exception of the liquidation of the company) is prohibited:
  • during the period of a person's stay on vacation (annual paid or unpaid, to care for a child until he reaches the age of three years, as well as on study leave);
  • during the sick leave, and you need to know that this rule does not apply to cases of a bulletin for caring for a sick family member, during this period, dismissal is possible.
• Penalties are not included in the labor (unless, of course, this is the final stage - dismissal).
• And the last thing: 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 levy is considered paid off.

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. Arbitrage practice quite often it is replete with decisions not in favor of the company, where even the most insignificant deviations from the requirements of labor law were made.

How and where to challenge the dismissal "under the article" - the word to the 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, personnel officers need to be especially careful and legally savvy. It is known that in proceedings and litigations, as a rule, the courts take the side of employees. And this is especially true if the employer has prepared a weak evidence base.

What is wrongful dismissal?

• reinstatement of a dismissed person (and whether or not to return to the company, the person himself decides 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 time of forced absenteeism;
• accordingly, the employer will be obliged to restore the experience lost during forced absenteeism and calculate the required vacation days during this time;
• if the workplace of an illegally dismissed person is occupied, the enterprise will have to release 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 non-pecuniary 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), retention of a work book (see), etc.

There are enough articles for the dismissal of negligent employees in the Code. But self-activity is not allowed here. Firstly, labor legislation clearly regulates every step of the administration when terminating an employment contract, and violations here instantly 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 at least one gap in the actions of the employer, the dismissed person will definitely try to use it.

Dismissal is a routine job for an experienced personnel officer. Some employees leave of their own accord, others at the "request" of the employer. In any case, each ground has its own procedure. Strict observance of it is aimed, on the one hand, at protecting the rights of hired personnel, on the other hand, at protecting organizations from unfounded claims. former employees. Consider how to dismiss an employee in compliance with all the 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.

An employee's own desire is the most common reason for terminating a relationship with an employer:

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

Difficulties with registration of dismissal at the initiative of the employee, as a rule, do not happen. An exception is issues related to mandatory “working off”. By default, this is 2 weeks that the employee continues to work from the moment the application is submitted.

Certain categories of personnel are entitled to a reduced notice period. This must always be borne in mind, since the “unexpected” departure of such an employee is no excuse for an organization that did not manage to calculate the resigning person in time and give him a work book in his hands.

The employer's initiative involves a more complex process of dismissal. If this is a reduction in staff or the liquidation of a company, the procedure is clearly described in the legislation and does not present problems from the point of view of documentary support. Here the main task 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 the dismissal of an employee unilaterally by the organization, here the “freedom” of the employer is clearly limited: one desire is not enough for this. There is a list of grounds for which an employee can be fired, and a special procedure for fixing violations for each of them. There are no documented misconducts of the employee - there is no reason for dismissal.

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

Dismissal at the request of the employee

The 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 out the assigned days;
• complete the transfer of cases to another employee, if such an order is provided for in the organization.

It doesn’t matter what contract was concluded when applying for a job - fixed-term or indefinite. In any case, the desire of the employee is decisive, and the employer has no legitimate reason to interfere with him.

The application is written in the name of the head with the wording: “I ask you to dismiss me of your own free will “XX” month in words XXXXX of the year”, the current date and signature.

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

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

In such cases, the dismissal occurs on the date indicated by the applicant. If required, a supporting document must be attached to the application (certificate from the institute, transfer order, etc.). An employee can leave “one day” without a good reason, if the employer goes to meet 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 already during the vacation, but no later than 14 days before going to work. Then the first post-holiday working day will be considered the date of termination of the employment contract.

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

On the part of the employer, the procedure for dismissal of one's own will looks like this:

• receipt of an application endorsed by the head of the company;
• creation of an order;
• making an entry in the work book;
• full settlement with the employee on remuneration;
• preparation of documents necessary for further employment (certificates 2-NDFL, 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 for which article to dismiss an employee - Art. 77 of the Labor Code of the Russian Federation. On the day of dismissal, the employee gets acquainted with the order and receives a work book in his hands. Up to this point, a person can change his mind and withdraw the application if a replacement has not yet been invited to his place, which "can not be turned back."

Dismissal through 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 the employer "asks" the employee to leave the firm, he sends him a written proposal.
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 personnel department draws up an order, fills out a work book. The grounds for dismissal are paragraph 1 of article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of opportunities and compliance with legal rights. The employer may, having agreed with the employee, dismiss him on any day, even if he is on vacation or sick. The resigned person cannot “change his mind” and cancel the signed document unilaterally. The employee is also not offended - in the process of negotiations, 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, the entire staff goes to the “expenditure”, in the first case, the reduced units, positions, with the exception of those categories of employees who, according to the law, cannot be reduced.

If you need to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee does not correspond to his position or he has had misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work in a drunken state, systematic violations with the imposition of disciplinary punishment.

In order to avoid infringement of the rights of personnel, legislators did everything so that a person could not be fired without good reasons. It is quite difficult to “bring under the article” an employee to whom the authorities have a personal dislike, although it is impossible to completely exclude abuses by employers.

Downsizing and company liquidation

The reduction has a clearly regulated process for the dismissal of part of the staff:

1. The decision on reduction made at the enterprise is fixed by the 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 change in the staffing table.
2. 2 months prior to the cutoff date, all eligible employees are notified in writing against signature.
3. The employer is obliged to offer the employee another position, if possible. For people who agree to the proposed vacancies, a transfer is issued. The rest are getting ready to leave.
4. A notified employee has the right to leave early without waiting for the cutoff date. If the person who learned about the impending dismissal found new job, the employer must release him without hindrance. Compensation for the remaining days before the reduction early dismissal does not deprive the employee.
5. 2 months before the reduction, management must notify the trade union body, if any. In case of mass dismissal of workers - 3 months in advance, as well as submit lists to the employment service.
6. For each employee, a dismissal order (T-8 form) is prepared with reference to the basis document. The order is submitted for signature to the dismissed person.
7. An entry is made in the work book indicating the reason for dismissal - paragraph 2 of part 1 of Art. 81 TK.
8. The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of the average salary.

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

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

When one of several equivalent positions is laid off, the choice of employees who leave and who stay lies with the employer. However, even here the authorities are deprived of complete freedom. 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 the priority right to keep their jobs. This:

• persons with 2 or more dependents;
• sole breadwinners in the family;
• who have received an injury or occupational disease from this employer;
• disabled people - participants in hostilities;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. An employee cannot be fired if he is on sick leave or vacation. To reduce the temporarily disabled and vacationers, you will have to wait until they go to work.

All these exceptions do not apply to the complete liquidation of the organization. The liquidation procedure practically does not differ from the reduction, except for one thing: all the personnel of the organization are deprived of their jobs, regardless of position, qualifications and social position. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers and others) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it completely ceases to operate.

Dismissal of violators of labor discipline and unsuitable workers

An employee who systematically violates discipline causes the 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 (alcoholic, narcotic), confirmed by a medical examination;
• disclosure of information protected by law (state, trade secret), proven in court;
• theft, embezzlement, material damage employer or third party recognized by the court;
• violation of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teachers;
• submission of false documents upon admission to the position.

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

1. Identification of the fact of violation.
2. Fixation of a misdemeanor (drawing up an act, protocol, examination, conducting medical examination etc.).
3. Obtaining written explanations from the offending employee.
4. Consideration of the facts of the case.
5. Drawing up a dismissal order in the T-8 form, references to supporting documents (acts, reports, explanatory, court decisions, etc.) are indicated as the basis.
6. Bringing the order to the employee under the 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 dismiss an employee for absenteeism: in the absence of a person at work for the whole day or 4 hours in a row, it is necessary to document this fact and prove that the employee was absent without a good reason.

Until an explanation is received from the "truant", the "presumption of innocence" is valid. An employee could be on time off, vacation, on sick leave, be subpoenaed, get into an accident on the way to work, etc.

If the employee did not receive any sensible explanations or supporting documents (disability certificate, subpoena, protocol of the traffic police, etc.), the misconduct is regarded as a gross violation of labor discipline and is qualified under Art. 81 of the Labor Code of the Russian Federation, part 1, paragraph 6, subparagraph "a". This basis will be recorded in the dismissal order and in the work book.

The list of documents confirming the legality of such dismissal:

1. Notice of absence from work.
2. Explanatory employee or act of refusal to provide explanations.
3. Order for disciplinary action / dismissal.

If the employer has violated this procedure, even if he has good reasons to dismiss the truant, the “offended” employee has every chance to recover through the courts.

It is also possible to dismiss a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming "chronic" indiscipline, in the aggregate, can serve as a basis for severing an employment relationship.

Another “ticklish” question for employers is how to properly dismiss an employee who, in the opinion of his superiors, does not correspond to his position. There is no other option than to arrange an attestation for an incompetent employee. It is necessary to issue an order, create attestation commission and to evaluate a person's aptitude based on well-defined criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can draw up a dismissal with the wording "due to inconsistency with the position held." The deadline for terminating the employment contract is no later than two months after certification.

In the event of disputes related to wrongful dismissals, the courts are more likely to take the side of employees. The reason is simple: a rare organization can boast of an ideal order in internal regulations and personnel documents. Lack of schedules, job descriptions, certification provisions and work schedule, an illiterately drawn up employment contract, “missed” steps when initiating a dismissal - all this can serve as evidence that the dismissal was made in violation of the law.

It is not uncommon for such situations at an enterprise when a manager is forced to dismiss an employee under an article. Legally, there is no such thing. 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 arrangement. Let us consider further some labor articles on dismissal.

Downsizing or liquidation

This is one of the reasons why a dismissal can be made. According to article 81, paragraph 4, only the chief accountant, the head 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. With a reduction in staff, some categories of specialists cannot be dismissed by law. Such "inviolable" employees are those who have a long and uninterrupted experience in this company or are the only breadwinners in the family.

Mismatch

According to the Labor Code, dismissal under article 81, paragraph 3 can be carried out due to incompetence with insufficient qualifications of a specialist, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

• Enterprise director.
• HR representative.
• The immediate supervisor of the subject.

The certification is confirmed by the relevant order. The subject receives a task that does not go beyond his job description and corresponds to his qualifications and specialization. If the task, in the opinion of the specialist, is 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 the judicial authority. Based on the results of certification, a final report is drawn up.

Transfer to another position

Dismissal under Article 81 is allowed 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, corresponding to the qualifications of an employee, and a lower or less paid position, which can be performed by him taking into account his health. The employer in this case is obliged to offer all vacancies that meet the above requirements and are available to him in a particular area. The manager is obliged to offer activities that need to be performed in another territory, if this is expressly provided for in a labor, collective or other contract or agreement. The specialist may refuse the options provided. In this case, the manager can fire him.

Dereliction of duty

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

• reprimand;
• remarks;
• dismissal.

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

Absenteeism and lateness

The specialist may be absent from the site for various reasons. If they are valid, then they must be confirmed by the relevant papers. For example, if an employee falls ill, he provides sick leave. If the reasons for the absence are not valid, then this is called absenteeism. All circumstances due to which the specialist was not at work are stated in writing. The decision to recognize or not recognize them as respectful is made by the leader. If there is a need to be absent from the enterprise, you must first write a corresponding application. It is drawn up in 2 copies, on which the director puts a note "I do not mind." The situation with delays is somewhat more complicated. As a single gross violation, the absence of an employee at the workplace for more than 4 hours in a row during the shift (day) will be considered. Thus, if a specialist is late for an hour, then he cannot be dismissed for this reason. But in the case of repeated such violations, a disciplinary sanction may be imposed with subsequent dismissal.

Waste and theft

These reasons are considered one of the most indisputable of all the circumstances for which dismissal can be carried out under the article of the Labor Code. When committing theft, including petty, of someone else's property (in this case, belonging to the enterprise or other employees), its waste, damage or destruction, established by the decision of the body or officials authorized to consider cases on 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 needed, which, in fact, is the result of an investigation. However, often in practice, management is lenient and offers voluntary dismissal. The article in this case will be different. Theft or other serious violation can hit 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 release an employee from office - the choice of the head.

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, and not just drinking alcohol, should be recorded. Also, the reason will act as a significant circumstance only if the employee appeared at the enterprise in this form during the shift. Thirdly, intoxication is considered not only a state after taking alcohol, but also any other state that occurs when using narcotic or other toxic substances.

Loss of trust

For this reason, only financially responsible employees can be fired. These include, in particular, those who have access to money or other valuables of the enterprise, carry out their reception, distribution, storage, 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 willful misconduct or negligence, a negligent attitude to one's duties. As with absenteeism, the employee's fault must be proven. A memorandum, an act of audit or inventory can confirm the illegal actions of an employee.

Dismissal of one's own free will: article of the Labor Code

This is the most common way to terminate a contract. Every day, many employees voluntarily 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 dismissal of one's own free will. Article TK No. 80 regulates this procedure. It is worth noting that it does not present such difficulties as in other cases. So, when an employee commits any disciplinary offenses, his guilt must be proven.

If dismissal is made of one's own free will, the article of the Labor Code of the Russian Federation requires only to follow the procedure in which the specialist is obliged to notify the employer 2 weeks before the expected date of departure of his intention. In general, the procedure for issuing dismissal from office in such cases is not difficult. As in other situations, an appropriate entry is made in the labor: "Dismissal under Article 80." To start this procedure, the specialist must write an application. The employee has the right not to explain the reasons for his decision. The article of the Labor Code "Dismissal on one's own" does not bear any negative consequences. However, one should be prepared for the fact that when applying for a new position, the head of another enterprise or a representative of the personnel department will be interested in the reasons for this decision.

Design features

The dismissal procedure under the article should be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be observed. 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, the employee may appeal against the misconduct of the employer.

Attestation of fact

If there is any violation, this step is considered mandatory. As mentioned above, for dismissal due to drunkenness, it is necessary to testify intoxication directly in work time and not just the direct fact of drinking alcohol. Theft is proved in 3 stages. In particular, the legislation requires documentary confirmation of the misconduct, as well as a decision or sentence. Only then can a dismissal be made.

A warning

This stage also has its own characteristics, which depend on the reason for which the employee leaves. For example, in case of liquidation of a company with the subsequent dissolution of the state, with any other change in the routine of activities at the enterprise and a reduction in the number of employees, the employer must 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 office or if his certification results are unsatisfactory. In the event that an employee commits a violation (failure to perform duties, absenteeism, non-compliance with the company's routine, etc.), the employer is obliged to take a written explanation from him. After that, the manager has a month to apply a disciplinary sanction 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 remark was issued for absenteeism, then it is impossible to dismiss an employee for the same misconduct.

Introduction to the specialist

This stage consists in notifying the employee and presenting him with an appropriate order. The latter indicates the reason why he is dismissed from office, the basis and date. The legislation requires the obligatory signature of a specialist on this document. In case of refusal to witness the order, 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 legislation does not oblige the employee to write this paper. He has the right to refuse the employer. Nevertheless, the absence of an explanatory note does not relieve him of disciplinary action. It will be issued in any case 2 days after the submission of the above requirement.

Order

Legislation requires the issuance 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 will suffice. This order must be accompanied by all regulations. These include, in particular:

• Details of acts and reports.
• Explanatory (if any).
• Other papers that confirm the existence of a valid reason for the release of an employee from his position.

Dismissal of one's own free will (Article 80) provides for a statement of a specialist as a mandatory application. In this case, you do not need to write an explanatory note, you should only notify the employer of your intention in time.

Personal documents

The employer is obliged on the last day of the employee's stay at his enterprise to give the employee his work book. It should be marked accordingly. 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 decision of the head. To do this, he needs to apply to the labor inspectorate, the court.

Compensation and payments

They rely depending on what the article of dismissal costs. For child care, in the event of staff reduction, liquidation of the company, on the personal initiative of the employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of dismissal. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation, allowances.

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 during the subsequent transfer to another enterprise. Conventionally, the reasons for dismissal are divided into three categories. Each of them has certain consequences. Thus, the articles are distinguished:

1. associated with the reorganization of the company. In the event that the enterprise complies with the norms of the law, the employee should be assisted in arranging him for a new place. In this case, the consequences for him are only positive.
2. not listed in the workbook. For example, there may be a note that an employee vacated a position on his own initiative, but in fact his serious misconduct simply did not receive publicity in order to avoid a scandal. In this case, no special negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
3. Specified in the labor. They can seriously damage your reputation. But in some cases it is better to be honest.

Appeal against the manager's decision

When dismissing an employee 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 issue a decision to recover compensation from the employer for moral damage. If the actions of the manager are recognized as unlawful, the employee has the right to ask for a change in the wording of the reason to "dismissal on one's own". In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he is given a duplicate. At the same time, all entries that were present in it are transferred to the book, with the exception of the one that was recognized as illegal. The procedure for appealing a decision of the head is established in Art. 394. In addition to the court, an employee can apply to the labor inspectorate and initiate an internal audit at the enterprise for compliance with the law. As practice shows, such litigation does not happen so often. Usually dismissal of employees is made without conflicts and noise.

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 read Article 81 of the Labor Code of the Russian Federation.

So, is it possible to be fired for absenteeism without an explanation?

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

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

However, in order to fix 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 of the space of a certain enterprise, intended for a specific employee to perform his immediate duties and equipped with everything necessary equipment, which is necessary for the performance of labor functions is called the workplace.

IMPORTANT INFORMATION! If the employer cannot contact the missing employee for a long time and find out for what reason he is not at the workplace, then dismissal of the employee for absenteeism without a good reason for the employee will be legal.

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

Article 42 collective agreement and conclusion of 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.

For many employees, the question automatically arises regarding how much absenteeism is needed for dismissal and at the same time remain at their workplace. The head of any organization can be dismissed for absence from the workplace, which was absent only 1 time without a respectful explanation for this act.

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 how many absenteeism to dismiss an employee.

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

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 the workplace, the employer must figure out which category this employee belongs to.

Since it is accepted by the current legislative acts that it is impossible to terminate labor relations due to absenteeism with the following groups of individuals:

• pregnant workers.

  Below is an example document:
  
  

• Act. The execution of the act serves as the second stage in the procedure for dismissal due to absenteeism. essence 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 punishment and who witnessed violations.

  It should also be noted in the document that the reason for the absence is unknown or is not valid, describe in detail the violation, including the 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 absenteeism. It is also necessary to sign the employee himself, thereby confirming his familiarization 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 that requires attendance at work and an explanation of the reasons for the absence.

  The notice prescribes the period until which an individual can appear at work and influence the decision of the employer, it is also indicated that otherwise, all Required documents with the date of dismissal for absenteeism, and at the end a reference is made to Article 81 of the Labor Code.

• Explanatory letter. If an individual who has received a notification from the head decides to come to work on the date specified in the document or on the day of dismissal with a continuing absenteeism, then he should be required to write an explanatory note.

  There is no established form for this document, so the employee just needs to indicate his identity, position, days of absence in it and briefly argue for what reasons he did not go 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:
  
  

• Dismissal order. If the employer did not receive an explanatory note, or considered that the reasons for the absence were disrespectful, then he must issue an order giving an order to terminate the employment contract.

  The order is drawn up in the form No. T-8. In the column “grounds for dismissal”, 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 the indication of the documents that served as the basis for dismissal for absenteeism, refer to the aforementioned act and memorandum. You also need to write down their number and date of compilation. In all other respects, the dismissal order 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.

Employer's actions if the employee's whereabouts are unknown

Sometimes it happens that there are difficulties in dismissal during long absenteeism 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 dismissal of the missing employee, arguing this by being absent from the workplace.

The employer must do the following:

1. write a letter addressed to the missing worker, which contains a request to come to work, and send his registration to the place. 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. Send a request to the police station located at the place of residence of the employee, requiring information about the missing individual.

If all of the above actions of the instruction are unsuccessful, then the manager can safely dismiss the employee for absenteeism. However, after that, it is also worth sending a letter to the employee's registration address, notifying him of the fact of dismissal.

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

Payouts

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

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

Entry in the workbook of a truant

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

What threatens dismissal under the 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 is willing to take responsibility by hiring a truant. Since in the event of a sudden absence of such an employee at 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 misconduct

Employers should always remember that they bear administrative responsibility in case of violation of the procedure for conducting a dismissal procedure. Also, the head of the organization will be liable if the individual with whom the cancellation was 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 former place labor, but they will also force a full calculation of all the amounts of money due to the employee under the 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 counted earlier as absenteeism.

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

In the case when an employee was dismissed 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 a record in the labor force prevents you from taking a new job?

Paragraph and article number matter

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

	Deciphering the reason for dismissal
P. 3	The employee does not correspond to the position held, his incompetence and low qualification are confirmed by certification.
P. 5	The employee systematically fails to fulfill the obligations stipulated in the contract and does not have good reasons. There is already a disciplinary sanction in the case.
P. 6	Gross violation of duties, in particular absenteeism, being at work in a state of intoxication, disclosure of secrets. The dismissal is also carried out in connection with the theft of property, money, embezzlement of the enterprise budget. Safety violations are also one of the reasons for terminating the agreement.
P. 7	The activity of an employee associated with money or property turnover caused a loss of confidence among superiors.
P. 8	Immoral behavior of a person performing an educational function.
P. 9	If the employee was leadership position and unreasonably made a decision that caused damage to the property of the company.
P. 10	A person in a leadership position or persons replacing him committed a gross violation of the contract (once).
P. 11	During employment, fake certificates, certificates or other documents were provided.

According to article 71, the employer has the right to dismiss the employee if, during the period probationary period he didn't perform well. Also, the employer may refer to the 11th paragraph of Article 77, according to which, when drawing up an agreement between the employee and the boss, violations of the Labor Code of the Russian Federation were committed.

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

For reference! Often, the employer threatens with 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 a record with a dismissal under an article appeared in the labor?

Every time a person gets a job in a new place, an interview awaits him, which begins with the study of a package of documents. A “spoiled” labor instills fear in the employee, and many believe that with the dismissal under the article, the career comes to a standstill. There are several ways out of this situation.

Agreement with superiors

It is possible to prevent dismissal due to “guilty” circumstances by agreeing with the personnel department and superiors. 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 labor office, it is desirable to have some evidence of administrative violations for insurance.

Loss and replacement of labor

The easiest way out for the majority of those laid off is the loss of a work book. In this case, when applying for a new job, you should submit an application with a request for a new document. However, information about work experience and previous positions will not be reflected.

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

If a person was fired from the last job, you can contact the penultimate employer to create a duplicate. However, it should be borne in mind that information about the position from which the employee was dismissed under a “bad article” is also in the Pension Fund of the Russian Federation, since the authorities are obliged to make deductions.

Going to court

In order to protect their rights in case of contentious 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 the requirements not only for reinstatement, but also for monetary compensation due to forced downtime at work.

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

If during court session it becomes known that the dismissal was unfounded, the process of termination of the contract was with violations of the Labor Code, there is an opportunity to receive moral compensation. Its size is determined by the court individually.
In most cases, the court decides in favor of the dismissed person, but in the future he should be careful. It is recommended to re-read the contract and act strictly in accordance with it. The employer may offer to quit, force him to leave the position, and in no case should he be led to provocations.

Behavior in a conversation with a new employer

Further employment depends not only on records in the labor, but also on how a person holds himself in front of a 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 the past employer, and even more so speak about him in a negative light. Suffice it to briefly describe the situation as a misunderstanding.

Some managers cease to require labor for employment, receiving information about the experience in the Pension Fund of the Russian Federation. In this case, you can hide the information and calmly get a job.

 

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