Worst post on leaving. How to fire an employee? Why can an employee be fired? Sample letter of dismissal. Dismissal for violation of labor regulations

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

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Legal basis

Based on this provision, the employer may terminate the employment contract with his employee unilaterally.

The current edition is federal law dated 06/30/06. But not for every absenteeism, an officially employed worker can be fired.

This requires a combination of a large number of different factors:

the employee was absent from his place the whole day - even if 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 at 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 an unexcused reason;
absence has been proven.

A good cause is understood to be any situation that prevents an employee from arriving at his workplace in time. For example:

interruptions in public transport;
summons to a trial;
disease;
accident.

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

It could be 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 a reason for imposing a disciplinary sanction.

To form an appropriate dismissal order for absenteeism, it is necessary to have documentary justification.

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

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

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

At the same time, various memorandums, as well as other documents confirming the fact of absenteeism, are indicated as the basis. If the employment contract with the employee is terminated in this way, then a corresponding entry in the work book is made without fail.

In the event of any dispute between the employee and the employer, it is necessary to focus on the following documents:

Labor Code Russian Federation dated December 30, 2001 (as amended by Law No. 197-FZ);
Resolution of the Plenum Supreme Court RF dated 17.03.04

Effects

Dismissal for absenteeism entails quite serious consequences. That is why it is worth avoiding this, since subsequently it will be quite difficult to get a job - a corresponding entry is made in the work book: p.p. "a" part 1 of article No. 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 by the employee of labor duties.”

Almost always, the employer scrutinizes work book your 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 fired under the article for absenteeism.

Quite often, a situation occurs when dismissal for absenteeism arises 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 with dismissal only if there is no schedule. That is also a serious violation and a fairly serious fine is required 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 quite serious problems. But there is always various ways get out of a difficult situation if the employer has grounds to dismiss 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 a disciplinary procedure.

According to Article No. 193 of the Labor Code of the Russian Federation, the employee is obliged to 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 note.

At the same time, 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 the failure to submit an explanatory note.

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

write an application for own 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 dismissal procedure for absenteeism. Almost always with the leadership you can find some kind of compromise.

The second way is to take a sick leave. Of course, there is no need to fake anything. Since forgery of a sheet confirming incapacity for work provides for serious punishment in accordance with the relevant article of the Criminal Code.

But when visiting a doctor, it is necessary to indicate the date of onset of the disease - he must fill out the form accordingly.

It will be necessary simply to designate it as a day of absenteeism. In this case, the employer will not have the right to dismiss for absenteeism or impose any penalty.

The third way to legally evade liability for absenteeism is blood donation. 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 that the next day is used for rest due to blood donation.

In this case, it is necessary to focus on the Resolution of the Plenum of the Supreme Court of the Russian Federation No.

When using the latter method, you must do the following (if dismissal is unavoidable):

write a letter of resignation;
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 employment contract at the request of the employee.

A two-week period is necessary due to the mandatory prior notice to the employer of dismissal of one's own free will.

In all the cases indicated above, the employer simply does not have the right to dismiss 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 period is up, the employer simply has to send a notification by mail with a request to appear for a work book.

If, for some reason, an employee does not want to attend former place work can be obtained this document mail.

Many employers often need to find out how to fire an employee without his will under the law. Given the very strict requirements of labor legislation, as well as the fact that very often workers, especially retirees, do not want to leave, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers, as a result, 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 an employer wants to fire an employee without his desire under the law are extremely common in 2018 - some employees can perform actions that are clearly destructive for the company, do not correspond to the team and spoil 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, with illiterate actions, the employer is either forced to tolerate their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

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

This is the best option, as it will allow the employee not to receive negative entries in the work book, and the employer will get rid of 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 dismiss him in this way.
The current legislation gives the employer the power to use disciplinary action against employees, up to and including dismissal for a certain list of misconduct. At the same time, the range of grounds for dismissals is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an objectionable 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 turn out good option dismissal of an employee without his desire, according to the law, it is a reduction in staff. However, it should be remembered that this method requires the strictest compliance with procedural requirements and is associated with additional costs for the employer.
If it is necessary to dismiss an employee who does not want to quit, having a probationary period will greatly simplify the dismissal procedure. However, with such a nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.
Repeated violation of the rules work schedule . If the employee did not commit gross guilty acts, due to which he can be dismissed immediately, then if there are several disciplinary sanctions, he can still be dismissed under the article.
Mismatch or insufficient . In some situations, an employee can be fired for inconsistency with the position held or due to insufficient qualifications.
In the event that an employee who does not want to quit, occupies a managerial position, he can be dismissed without other grounds 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 operation of the entire company.
The employer has the right to independently change working conditions for individual positions or the entire enterprise as a whole, which allows you to put the employee in conditions that will make his further work simply unprofitable. And although the employee has the right not to agree to work under 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 fired at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be fired even if she commits gross misconduct and guilty actions against the employer. The ability to dismiss an employee who has a child under the age of three 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 quit.

How to force an employee to quit voluntarily or by agreement

In many, even conflict situations, if it became necessary to get rid of an objectionable employee, employers simply do not know how to force the employee to quit of his own free will or convince him to stop working by agreement of the parties. At the same time, there are enough possible actions that can be taken to ensure that the employee makes 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 financial compensation, drawn up by agreement of the parties, drawing up positive recommendations or other benefits that may incline 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 conflict, and the employer will have significant opportunities to “spoil” 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 may make a negative recommendation about the employee. But these methods of influence do not work for every employee.

In this case, the simplest tactic of action will be to use all the tools provided by the legislation. For example, initiate the fixing of the employee’s working time, issuing all instructions to him in the form of written orders with acts of acceptance, and fixing each result or error in the employee’s activities in order to find another reason for dismissal. Including the employer may be required to resort to one of the following methods.

The most convenient for the employer will be the dismissal of employees, if initially in the employment contract the working conditions are specified as clearly as possible, but with the possibility of the employer making certain assumptions. For example, an employer has the right to set an employee a low official salary 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 the salary, if such an opportunity is provided for by local regulations or 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, other methods will have to be used. It should be noted that even voluntary dismissal can be challenged in judicial order if it was done under 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 shows a minimum number of decisions in favor of the employee, since such a dismissal is almost impossible to challenge.

The 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 had remained at work.

How to fire an employee for a gross violation

The current legislation provides for 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 you to dismiss an employee on the sole fact of their implementation include:

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

Start an internal investigation into the circumstances.
Ask the employee for an explanation.
Issue an order to dismiss an employee.
Give the employee a work book, funds due to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judiciary imposes on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that during 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, disclosure of secrets or personal data must have all the signs of disclosure.

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

How to dismiss for non-compliance 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 ground for dismissal must indeed take place and certain confirmations. In addition, the very establishment of qualifications and compliance job requirements of an employee must be carried out in independent centers for assessing 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 a fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for services to confirm the qualifications of an 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 enterprise, or if the employee refuses to occupy them.

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

A common method used to fire an employee without his will under the law in 2018 may be to change the terms of the employment contract. According to the law, the employer can make such changes only with the consent of the employee. However, a number of actions and situations allow changes to be made without the consent of the employee.

In this case, the employer only needs to notify employees 2 months in advance of changes in working conditions, including the place of work, the amount or system of payment, official duties in connection with the reorganization production processes. The very fact of reorganization must also be confirmed by internal regulations. Employees who do not agree with these changes should be given the opportunity to take any other job that suits them in terms of qualifications and health vacant position at the enterprise - and only after their refusal or in the absence of the indicated positions, they can be dismissed.

How to get fired on probation

If an employee needs to be fired without his will to probationary period, positions current legislation give the employer additional features 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. However, if the employer controversial situations must take into account the following points:

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 minors.

Therefore, basically challenging the dismissal during the probationary period is based precisely on the above two grounds. And it is the employer who should take care of 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 lay off 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 standards of Article 81 of the Labor Code of the Russian Federation. At the same time, it should be remembered that the employer in connection with such a dismissal has a number of responsibilities:

Advance notification of layoffs. Employees must be given at least two months' notice of impending layoffs.
Mandatory notification of all regulatory authorities. Namely - trade union organization, employment center.
Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
Execution social guarantees for certain categories of employees. Such guarantees include both a complete ban on layoffs for some workers and the right of workers to have priority retention in the workplace.
Offer of all vacancies. The employer, as in many other situations, is obliged to provide the reduced opportunity to get other vacancies suitable for them.

You can also read more about the features of layoffs to reduce staff, where all the nuances of this procedure are considered.

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

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

An attempt to dismiss a pensioner without his desire according to the law in 2018 can cause particular difficulties for the employer. In practice there are no normative documents, which in a special way would regulate the procedure for the dismissal or retention of pensioners at work. The exception is public service of any nature - in this case, the age limit at which an employee can hold a position is 65 years old and he will not be able to challenge such a dismissal.

It should also be remembered that the dismissal of managers during a change of ownership is allowed without any other grounds for terminating the employment contract. But it must be understood that leadership positions in this context, only the immediate head of the enterprise, his deputy, as well as the chief accountant are included.

Under what conditions can an employee not be fired? , who is not subject to dismissal, what is the pre-emptive right to stay at work and when the courts do not take it into account? Knowing the answers to these questions will allow you to complete the dismissal 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 dismiss 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 compared to the rest. It is best to present them in the form of a table:

Base	worker	The period during which dismissal is impossible	Exceptions (when an employee can be fired)
	Temporarily disabled	sick leave period	Liquidation of the employer organization (termination of the IP activity)
	employee on vacation	Vacation period
Art. 261 of the Labor Code, paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation regulating the labor of women ...” dated January 28, 2014 No. 1	Pregnant	Maternity leave. One week from the day the employer learned about the end of the pregnancy for a reason not related to childbirth	The organization (IP) is liquidated. A pregnant woman is hired to replace a temporarily absent employee, her employment contract has expired, and it is impossible to transfer her to another position
Art. 81, 261, 336 TK,	Worker with a child under 3 years old	Until the child's 3rd birthday	The organization or individual entrepreneur is liquidated. An employee who has disciplinary action, without a good reason 2 or more times failed to perform labor duties. Gross misconduct by an employee labor discipline(drunkenness at work, absenteeism, disclosure of secrets, theft from work, violation of labor protection rules). Providing false documents when applying for a job. Loss of confidence in the worker serving values. The commission of an immoral act by an employee performing an educational function. Violation by the head of an organization, municipal or public servant of the Law "On Combating Corruption" dated December 25, 2008 No. 273-FZ in terms of concealing information about income and expenses, or inaction in case of a conflict of interest. An employee-teacher committed violence, mental or physical, against a pupil studying
	Single mother or other person in her absence, raising a disabled minor	Until the 18th birthday of a disabled person
	Single mother or other person in her absence, raising a minor	Until the child's 14th birthday
	The sole breadwinner of a disabled minor	Until the 18th birthday of a disabled child
	Sole provider of a minor	Until the child's 14th birthday
	A woman raising three or more young children when the other parent is unemployed	Until the child's 14th birthday or the other parent's return to work

Don't know your rights?

Right of Preemption: Who Can't Be Fired When Downsizing

A kind of immunity from dismissal in case of staff reduction in accordance with Art. 179 shopping malls have employees 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 TK. 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;
who have received an occupational disease or work injury at their current place of work;
invalids of the Great Patriotic War or combat operations;
in parallel with work, improve their qualifications.

inventors (Article 35 of the USSR Law “On Inventions in the USSR” dated May 31, 1991 No. 2213-1);
workers in their first job after military service (Article 23 of the Law “On the Status of Military Personnel” dated May 27, 1998 No. 76-FZ);
spouses of servicemen in the service government 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 preferential right to leave at work for other categories of workers - in collective agreement or other act of the enterprise.

INTERESTING! Judicial practice shows that in certain situations, the pre-emptive right may not be taken into account. In particular, the Judicial Collegium of the Sverdlovsk Regional Court in the appeal ruling dated May 27, 2016 in case No. 33-9214 / 2016 indicated: if all available staff units for one position are reduced by order of the employer, the basis for considering the issue of preemptive right individual workers missing.

Preemptive right: which categories cannot be reduced with a decrease in the number of employees

The list of persons who have the priority right to retain their jobs in the event of a reduction in the number of staff, in accordance with Art. 179 of the Labor Code, coincides with the list of employees who have the same guarantees in case of staff reduction.

IMPORTANT! Dismissal as a result of a reduction in the number of employees or a reduction in staff without taking into account the employee's preemptive 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 person.

Thus, the Supreme Court of the Republic of Altai, by its decision of November 26, 2014 in case No. 33-955, reinstated the employee at work, since the employer did not provide evidence of compliance with the dismissal procedure under Art. 179 of the Labor Code and evidence of the preferential right of other employees over the plaintiff.

In the appeal ruling dated May 31, 2016 No. 33-3600/2016 of the KhMAO-Yugra court, dismissal without considering the issue of the priority right of employees was also recognized as unlawful.

At the same time, there is no need to analyze the preemptive rights of workers if the employee used the provision provided by Art. 180 of the Labor Code the right to terminate work ahead of schedule, having received compensation. As indicated in the appeal ruling of the Supreme Court of the Komi Republic dated August 26, 2013 No. 33-4492 / 2013, the presence of consent to the early termination of work indicates the consent of the employee with the upcoming termination labor relations, which relieves the employer from establishing the existence of circumstances giving the employee the preferential right to remain at work.

Additional conditions under which an employee cannot be fired

In addition to the list of persons whom the employer does not have the right to dismiss within a certain period, the Labor Code also names a number of additional conditions that prevent the dismissal of an employee at the initiative of the employer. All of them relate to violations of the dismissal procedure:

The reason for dismissal is irrelevant.
Such a condition applies, in particular, to the case provided for by 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 confidence, 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.
Not met additional terms layoffs.
For example, according to Art. 269 TK underage worker can only be dismissed after obtaining consent from the supervisory authorities:
- commissions on juvenile affairs;
- State Labor Inspectorate.
Failure to notify or reduce the notice period for an employee or union of a planned layoff.
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 during the trial 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 the Labor Code does not contain a single list of requirements. 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 Works (Services), approved. Order of the Federal Migration Service of June 28, 2010 No. 147, and are also contained in court rulings.

Judicial practice in cases of non-notification of dismissal

Whether or not a worker will be reinstated to his position if he was supposedly not notified of the impending dismissal depends on the specific circumstances.

In practice, it is not uncommon for an employee to ask to be reinstated at work, referring to the fact that the employer did not notify him of the impending dismissal. The case file reflects that the employee refused to sign the notice presented to him, but personnel officer reads the notification aloud to the employee, about which a mark is made on the document. The courts, having received evidence of proper notification, refuse reinstatement at work (see the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated 10/05/2016 in case No. 33-19651/2016, the appeal ruling of the Moscow Regional Court dated 06/01/2016 in case No. 33-13162/2016, etc. .).

Conversely, if the case file confirms that the notice was not sent to the employee, the court will usually reinstate him at work. For example, in the resolution of the FAS ZSO dated 04/12/2011 in case No. A70-9086 / 2010, it is noted that, since the procedure for notifying the employee was not followed, the fixed-term employment contract has lost its urgent character and, by virtue of Art. 58 of the Labor Code becomes an agreement concluded for an indefinite period.

INTERESTING! In the appeal ruling of the Krasnoyarsk Regional Court dated 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, i.e., to make the employment contract indefinite.

Some requirements for the content of the notice of dismissal

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

Notice Section	To whom is sent	Requirement	Base
Requisites	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 acting head or a person who has formalized authority to notify the upcoming dismissal has the right to send a notice of impending dismissal to the employee. A notice sent by the head of the HR department, who does not have formalized authority to make a decision on dismissal on behalf of the employer, is not appropriate	Determination of the Armed Forces of the Russian Federation of 03.10.2008 No. 89-B08-6
	Territorial division (TP) of the FMS	For the dismissal of a foreign worker, an additional requirement is 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 permit, patent; − information about the termination of the employment contract. Failure to fill in at least one field of the form means that the notification was made in an improper form, which entails liability under Part 3 of Art. 18.15 Administrative Code	Art. 13 of the law of July 25, 2002 No. 115-FZ “On legal status foreign citizens in the RF"; Clause 5 of the Procedure for submitting notifications by employers and customers of works (services), approved. Order of the Federal Migration Service No. 147 dated June 28, 2010 and Appendix No. 20 to the order; Decree of the Arbitration Court of the ZSO of December 11, 2015 No. F04-27100/2015 in case No. A27-9151/2015
	Employee	In the event of a reduction in the number of staff 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 person 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, the employer must notify the employee of available vacancies simultaneously with the notice of dismissal	Art. 81, 180 TK; 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 employees from unlawful dismissal. In particular, the law determined the categories of persons, whom the employer can dismiss on his own initiative only in exceptional cases. These include sick employees, pregnant employees, workers on vacation, etc.

In addition, the Labor Code introduced for certain categories of workers a preferential right to retain work in the event of a reduction in staff. First of all, such privileges are enjoyed by the most useful employees, that is, those whose labor productivity and qualifications are higher than those of the rest.

Clause 3 of Part 1 of Article 81 of the Labor Code of the Russian Federation provides that you can say goodbye to an employee, revealing a discrepancy with his position. However, everything is not so simple here. The Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 states that dismissal for such a reason is permissible, provided that the inconsistency of the employee with his position or 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 is not entitled to terminate the employment contract with a specialist on the above grounds, if the employee has not been tested for his knowledge, or the certification commission has come to the conclusion that the specialist is professionally suitable. The SC Plenum also clarified that the conclusions attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case. This means that if in the process of parting with an employee a dispute arises that reaches the arbitrators, then the servants of Themis, although they 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 on how the employee fits the position.

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

Please note: dismissing a person for his unsuitability is allowed only if it is impossible to transfer the employee to another job, for example, a vacant position that matches the qualifications of the employee 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 Resolution No. 2 of the Plenum of the RF Armed Forces. 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 indicating that the employee refused to transfer, or the company was not able (for example, due to lack of vacancies) to “transfer” the person with his consent to another position.

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

Thus, saying goodbye to an employee for his inconsistency with the position is quite problematic.

What can they get fired for?

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

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

Absenteeism

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

It is not easy to dismiss for absenteeism, because you will need to confirm the absence of an employee at the workplace. In firms where the arrival time is recorded in magazines or with the help of turnstiles, it is quite easy to check the presence 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 absenteeism will be, for example, witness testimony.

Another feature: absenteeism can only be applied to cases when an 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 community work day, or to some corporate event that was held on his day off, this is not considered absenteeism.

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 absenteeism.

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 testimonies are also strong arguments.

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 last day before the start of absenteeism will be considered.

For disclosing legally protected secrets, you can also say goodbye to an employee immediately. We are talking about those cases when secret information became known to the employee in connection with the performance of his job duties. I note that the voicing of personal data of colleagues also belongs to such a violation. Attention: only the person who signed the document listing information related to commercial or official secrets can be fired on this basis: the presence of his autograph means that he has acquired access to such information. Documents containing classified data are usually marked with the heading "For official use" (for official use), access to them by employees is carried out against signature.

Another reason for dismissal is the employee committing theft. In Resolution No. 2, the Plenum of the Supreme Court of the Russian Federation explained that any property that does not belong to this employee, in particular, valuables, should be regarded as someone else's. company-owned, other employees, as well as persons who are not employees of this organization. Keep in mind, according to Article 193 of the Labor Code of the Russian Federation, a disciplinary sanction (and dismissal also applies to them) is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was sick, he was on vacation, as well as the period required to take into account the opinion of the representative body .

The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 clarified that if the dismissal occurs in connection with the theft committed by the employee, then the established monthly period is calculated from the date the arbitrators' verdict or the decision of the judge, body, official authorized to consider cases of administrative offenses comes into force .

Marina Skudutis, expert of "Calculation" magazine

Often, labor cooperation ends with dismissal at the initiative of the employer or the employee himself. If the employer decides to dismiss his subordinate, then he must do it for a reason, but on the basis of one of the articles of the Labor Code of the Russian Federation.

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

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

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

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

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

In the first three cases, there are usually no serious disagreements between the employee and the employer. However, as for the fourth case, when the employer becomes the initiator of the dismissal, it can cause serious.

As a rule, having decided 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 dismisses him under the article.

Read about the cases in which an employee can be fired 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 an article can be carried out in the following cases:

(according to the article). Example: a young inexperienced employee was taken on a trial period of three months, after which the employer realized that new employee fails to complete the assigned tasks. In this connection, a decision is made to dismiss;
or bankruptcy of an individual entrepreneur(according to part 1 of the article);
Reducing the workforce at the IP(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 reduction 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 case 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 the reduced employees (profession, position, level of earnings).

. Unlike the first paragraph, which is more about 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 head (according to paragraph 3 of part 1 of article 81 of the Labor Code of the Russian Federation) ;

In theory, the leaders of organizations should organize regular refresher courses for their employees. However, few employers do this, leaving workers 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 before that the employee was offered another vacancy in the same organization that corresponds to his current qualifications, but he refused to accept it.

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

Dismissal due to a disciplinary violation can be carried out within one month from the moment the misconduct was committed (in some cases no later than one six months).

Serious one-time violation of their duties(according to paragraph "a", "b", "c", "d", "e" of paragraph 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 the employee without indicating a reason for a whole working day (more than four hours).

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

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

According to paragraph "e", dismissal under the article will follow if the employee is convicted of stealing someone else's (working) 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 reason for dismissal may also be the neglect of safety rules, which did not lead to sad consequences, but potentially could.

Incompetent attitude towards job duties associated with cash or commodity circulation, in connection with which the employer has lost professional confidence in his subordinate (according to clause 7 of part 1 of article 81 of the Labor Code of the Russian Federation);
Committing actions that are contrary to moral standards, if labor activity the employee is related to education (according to clause 8 of part 1 of article 81 of the Labor Code of the Russian Federation);

Example: a citizen working as a teacher allowed himself insulting (obscene expressions) against students.

Decisions resulting in 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(forgery of seniority, someone else's passport, false educational "crusts", etc.), (according to clause 11 of part 1 of article 81 of the Labor Code of the Russian Federation);

Who can't be fired?

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;
employees who are on vacation;
female workers during pregnancy;

The dismissal of the above categories of employees is allowed in the event of liquidation of the company. In this case, the dismissed employee receives material compensation equal to at least one monthly salary.

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

In case of dismissal for a reason not specified in Labor Code or the one that the employee did not commit, or the district court with the appropriate one.

Read more about ways to deal with 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 court makes a decision, the employee may expect one of the following outcomes of events:

Payment of material compensation for causing moral and material damage;

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