Dismissal due to loss of trust. Procedure for dismissal due to loss of trust under the law. Dismissal due to loss of confidence of the CEO

The labor legislation of our country provides for such a clause as in connection with the loss of confidence. Employers rarely resort to such a method to get rid of an employee. Most likely because not everyone has an idea how to apply this article.

After dismissal under the article Loss of trust, it is difficult to restore the reputation

In accordance with Article 81 of the Labor Code of the Russian Federation, paragraph 7, the loss of trust is considered to be the guilty actions committed by the employee regarding or the finances of the employer.

Dismissal with this wording will adversely affect the employee's future career, because his reputation will suffer greatly. With such a record in getting a job in the future, it will be extremely difficult.

To dismiss a person under such an unpleasant article, the employer must have good reasons for this. If you do not take into account all the subtleties and nuances, then the dismissal will most likely develop into numerous ones.

Who can be fired for loss of confidence

The application of this article can be made only in relation to those employees in whose activities there is a service of values (we are talking about both monetary and commodity components). In other words, this is everything with which you can conclude or conclude an agreement on full liability.

This category includes, for example, cashiers who manage cash. But accountants cannot be fired under this article, since they work with funds exclusively on paper.

It is not uncommon for one employee to replace another who is entrusted with such work. If a substitute employee makes any mistake, an oversight, they still cannot be dismissed under Article 81. To earn a dismissal with this wording, you need:

firstly, to perform duties not one-time, but regularly;
secondly, it will still be necessary to prove that the oversight committed was really intentional, and not a simple random error that arose due to lack of experience and competence.

When concluding an agreement on full liability with an entire team or several persons, it is impossible to dismiss them under the article for loss of trust. But it will be possible to bring to liability, however, the punishment in this case is provided for somewhat differently.

The procedure for dismissal in such a situation

Dismissal under the article Loss of confidence is carried out in the prescribed manner

Article 81 of the Labor Code is a more than serious ground for dismissal. The employer will have to follow a certain procedure for dismissal.

The primary task is to take care of the evidence of the guilt of the employee. Such a duty is prescribed in the labor legislation. There is no special document to be filled out upon detection of actions performed by an employee.

As a rule, such a fact is drawn up in the form of an ordinary, drawn up in a free form. Such a message must necessarily reflect some data:

surname, name, patronymic of the employee who discovered these actions;
under what circumstances everything happened;
indicate the time and date of the event.

In cases where the loss of valuables or finances was detected due to the ongoing inventory, care must be taken to draw up a special act. Based on the collected documents, the employer, if desired, conducts an internal investigation and identifies the guilty person.

The role of the commission in the fact-finding procedure

A special entry is made in the labor

In order to establish whether an unlawful act really took place, as well as which persons are involved in this, a special commission is being created. The employees who make up such an organization must be competent and not interested in the outcome of their investigation.

Before the proceedings on the case begin, the employer must take care of the order, which specifies the need to create a commission, as well as its composition (at least 3 people). contains information about the names and positions of employees. It is necessary to indicate the purpose and date of creation, as well as the duration and authority of the commission. The tasks of the established commission are as follows:

determine under what circumstances it was applied, indicating the place, time and method of application;
if there is such a need, those places that were damaged should be examined;
establish the cost of damage in this fact;
identify the persons who caused the damage;
collect an evidence base;
determine the degree of guilt of these persons, draw a conclusion regarding the amount of the penalty;
establish the causes and conditions that contributed to the damage.

Members of the commission have the right to demand that the employee whom they suspect explain their actions. Such a commission can also be created in situations where no damage was directly caused, but the actions of the employee could provoke a similar result.

All members of the commission must familiarize themselves with the order and sign it. To dismiss an employee for loss of confidence, the employer may independently conduct the necessary investigation.
the information obtained by the commission is drawn up in the form of acts, certificates, memorandums. All documents are attached to the materials of the investigation and are transferred to the employer for review.

The employee in respect of whom such an investigation was carried out should be aware of the results and the decision of the commission against signature. If he refuses to do so, an appropriate act is drawn up.

Before an order is issued for disciplinary action due to loss of trust, the employer must require the employee to take action.

Dismissal procedure

Suspicions must be justified!

If the employer is convinced that the event that occurred falls under the article specified in the Labor Code, then when filing a dismissal due to loss of confidence, the following algorithm must be followed.

Notification

The employee receives about the upcoming dismissal. Moreover, the mandatory two-week period can not be worked out. If illegal acts are detected, the employer can get rid of the guilty person any day he wants.

The notification shall be made exclusively in writing. Upon delivery, the employee must sign. In case of refusal to do this, a special act is drawn up.

Order

If the fact of committing a guilty act is established, a special order is created in the standard form T-8. The wording in the order and in the work book should be the same.

Calculation

Upon dismissal, on the very last working day, the employee is given everything that is required in such cases:

work book, where there is a corresponding entry;
income statement for the last year;
, which the employee has earned for the entire time, including the last day;
all bonuses and other cash payments stipulated by the wage system;
if the vacation days prescribed by law have not been used, then they are issued for them. If the employee used the vacation days in advance, then the previously issued vacation pay will be withheld from him.

Important! If the employee knows for sure that he did not commit any illegal actions and his dismissal is illegal, then he has the right to go to court and be reinstated in his workplace.

Dismissal of an employee due to loss of trust. Timing

Dismissal can be appealed...

Whenever it comes to terminating an employment contract, it is extremely important to respect certain deadlines. So, according to the clauses of the Labor Law, if an employee continues to work after the date indicated in the order and notification, and besides, he was not given any money or documents, then the contract with him is automatically extended.

If dismissal cannot be avoided, then all the measures taken will have to be repeated from the beginning. Usually, the employer wants not only to get rid of a negligent employee, but also to receive compensation for the damage caused. In this case, it is important to ensure that the employee receives a written notification, and on the last day of work, the necessary calculation is made with him.

The manager must be firmly convinced that he has completed all the necessary documents correctly and on time, thereby depriving the former employee of the opportunity to win the case when going to court.

It is not uncommon for an employee to disagree with the wording of the dismissal and write a statement "". If the employer does not hurry up and complete all the necessary documents on time - within two weeks, then it will be considered that the dismissal procedure was carried out under article 80, as stated by the employee.

Dismissal due to loss of confidence can put an end to a person's future career. If the employee is really to blame, then he should try to resolve everything peacefully and quit "of his own free will." In this way, you will be able to maintain your reputation, which is very important when looking for a new job.

Wording "Loss of trust". Learn more in the legal video consultation:

It is rather difficult for an employer to dismiss an employee who has concluded an employment contract with him on his own initiative. At the same time, the legislation still has several ways to remove a dishonest employee from work.

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The most common of these is a reduction made on the basis that the employer has simply lost confidence in the employee.

Foundations

The grounds for starting the procedure for dismissal for loss of confidence are the materials of the investigation - documents that record a violation committed by an employee.

When considering, in addition to them, explanatory notes from employees are also provided.

What actions can be considered a violation?

The legislation does not specify the list of reasons for the loss of trust in an employee. Therefore, each employer interprets the grounds in his own way.

Most often, layoffs occur for the following reasons:

theft or damage to property with which the employee worked;
writing off certain material values for personal gain;
using work equipment to achieve personal goals;
theft of company property (whether on a business day or not);
violation of the rules of sale or fraud.

But in order for the violation to serve as a reason for dismissal, it must be recorded in writing. Also, all actions that may cause distrust are spelled out in the employment contract.

The legislative framework

The basic law in the matter of dismissal due to lack of confidence is paragraph seven.

In addition to it, this process is regulated by several more legislative documents:

articles No. 34-35 of the Law "On employment of citizens of the Russian Federation" No. 1032-1;
article FZ No. 79;
article 193 of the Labor Code of the Russian Federation;
article 261 of the Labor Code of the Russian Federation;

Resolution of the Plenum of the Supreme Court No. 2.

Dismissal due to loss of trust

No employee would like to receive notice of their dismissal due to loss of confidence. However, in case of violation of certain conditions, he may be subjected to this type of punishment.

Dismissal due to loss of confidence can be applied not only in commercial organizations, but also in government institutions.

civil servant

When a civil servant is dismissed due to lack of confidence, unlike ordinary employees, it is not the Labor Code that becomes more important, but the Federal Law. All government agencies, such as the prosecutor's office, the police, and so on, have similar reasons why an employee is subject to dismissal.

Unlike other organizations, state-owned firms do not have the ability to independently determine the reasons for which an employee can be fired, since all the grounds are spelled out in Federal Laws.

You can disassemble the main points by reading the provision from the Law "On State Military Service".

Grounds for dismissal may be:

concealment of income: both one's own and relatives, for the purpose of material gain;
own business when working in government agencies;
management or support of non-profit foreign organizations.

Also, an employee may be dismissed due to inaction that led to the formation or flare-up of a conflict. As a result, in such situations, not only ordinary military personnel, but also the commander can be removed from duty.

Procedure

Dismissal due to loss of confidence has a slightly different scheme from the standard one. It is very important for the employer to adhere to its course, otherwise the employee will be able to find a loophole or go to court to cancel the process.

Before you start dismissal, you must collect all the documents confirming the existence of a violation.

After that, you can begin the process, which contains several basic steps:

It is necessary to notify the employee of your intentions. To do this, a specialist from the personnel department must send a written notification to the employee.
After the employee is notified, the employer can draw up a dismissal order. The basis for it will be the previously collected papers.
Further, an entry is made in the employee's work book about the dismissal with an article corresponding to the case.

The last stage comes on the day of dismissal. Then all his documents are transferred to the employee, and the payment of funds is also made.

Employees, most often, do not agree with the wording “loss of trust”, and if it appears, they can go to court with a lawsuit to recognize the employer’s decision as illegal. Therefore, a clear procedure must be followed.

An official investigation

If violations are found, they must be recorded on paper. The law does not provide for a specific form for filling out such a document, however, many use a style similar to a memorandum.

It indicates the data of the employee filling out the questionnaire, the time and circumstances under which the crime was committed.

But the report may not be required, since in the event of interference in the case by law enforcement agencies, their investigation will be suitable as a basis.

In order to independently double-check the data about the employee, you can conduct an unscheduled audit.

Explanations from the worker

Before drawing up an order, the employer must receive an explanatory note from the employee in order to understand what happened from his point of view and decide whether to impose a punishment in the form of dismissal.

In case of refusal, the employee must be notified that writing an explanatory note is a mandatory action.

Upon receipt of the notice, the employee must sign it as a token of receipt. If the employee does not want to sign, it is necessary to record this fact in the act in the presence of two witnesses. The same document is drawn up if the employee signed for receipt, but did not provide the required explanation for two days.

If, upon refusal of an employee, a notification is not sent to him or an act of refusal to sign papers is not recorded, then this aspect will become a chance for the employee.

Due to the lack of evidence of guilt, he will be able to appeal his dismissal in court and be reinstated in the workplace.

Order

It is compiled on the basis of documents proving the employee's involvement in the violation.

The form of the dismissal order due to loss of confidence is not much different from those drawn up in other cases, and has the designation "T-8". It also contains the employee's data and the date of dismissal.

The differences lie precisely in the grounds, as well as in the article under which the employee was dismissed. After drawing up, the order is transferred to the personnel department, as well as to the accounting department for calculating payments to the employee.

Entry in the work book

When making a dismissal, the employee enters a wording that must be identical to the one that was written in the order.

Upon dismissal due to loss of confidence, the entry must contain clause 7 of Art. 81 of the Labor Code of the Russian Federation.

The entry is certified by affixing the signature of the person who made the entry, as well as the round seal of the organization. Also opposite the entry should be a number corresponding to the day the employee was issued and dismissed.

After familiarization, the employee needs to put his signature as a sign of agreement with the wording and termination of the employment contract.

Timing

Timing is perhaps one of the most important parts of conducting a dismissal due to loss of trust. The fact is that the whole process must end no later than the last one for work, which is set in the dismissal order.

If, after the expiration of the established period, the employee is still at his workplace, and the manager does not interfere with this, then the employment contract is considered to be extended automatically.

What payments are due?

Despite the fact that dismissal due to loss of trust is the most significant punishment for a violation, an employee is still entitled to in 2020. They consist of wages and . All money, as expected, the employee must receive on the last day of work.

The employer is not entitled to wage deductions, even if the employee has caused damage to the company.

But after the dismissal, the manager can file a lawsuit against the former employee in court, providing the documents attached to the dismissal order as evidence. In this case, the court, most often, remains on the side of the plaintiff.

Consequences for the employee

When an employee commits a particular violation, the employer has the right to decide what penalty to assign to the offending specialist.

The lightest form is a reprimand, which is usually given for minor infractions.

For more serious "misses" or repeated mistakes, the employer may impose a fine on the employee as compensation for harm.

But the most severe punishment, of course, is the loss of trust and subsequent dismissal. Typically, such a preventive measure is used for serious violations or for repeated repetition of minor errors.

Dismissal entails a number of negative consequences:

seniority is interrupted, which means that in the future payment during disability will be lower;
sometimes, upon dismissal, a ban is imposed on an employee, due to which he cannot hold one or another position for a certain time or for life;
upon dismissal due to loss of confidence, a citizen is not paid unemployment benefits for three months, later the money begins to flow, but the rate is still reduced.

In addition, an entry in the work book can interfere with getting a new job, since few employers want to accept a person who is difficult to rely on in their team.

Who can't be fired?

If the employer has evidence that the employee has committed a violation, then he has every right to fire him.

However, there are a number of exceptions here, for example, the employer cannot terminate the contract with:

a pregnant woman;
an employee who is absent from his place due to temporary incapacity or vacation.

Also, in part, juvenile offenders can be attributed to them. Of course, you can dismiss them, however, for this you will have to coordinate your actions with the labor inspectorate by contacting the local department. In addition, this requires approval from the juvenile commission.

Can it be disputed?

Dismissing an employee due to loss of trust is a tool to protect the company's material assets and a warning against causing damage. What fault of the employee can lead you to his dismissal on this basis?

Grounds for loss of trust in an employee

Dismissal for distrust is regulated by paragraph 7 of Art. 81 of the Labor Code of the Russian Federation. Often this happens in relation to people who perform work related to the acceptance, vacation, storage of any material values \u200b\u200band finances. What exactly is considered a loss of trust is not spelled out in the Labor Code of the Russian Federation, since it is formulated by the head of the company himself. This boss, in his own way, expresses distrust of employees, based on the situation.

The trust of the head of the company is spelled out in the working documentation of the financially responsible person. A liability agreement is signed with the employee, but this does not serve as a basis for dismissing for lack of confidence. If theft, embezzlement, bribery is proven, he also falls under the article of no confidence. But this can happen only when the employee is really financially obliged.

Dismissal in distrust can also occur due to a misdemeanor committed by a person in another place of work. Then the termination of the employment contract will be based on a copy of the court decision, which will establish the guilt of the subordinate.

Dismissal due to loss of confidence is considered legal only if the head of the company has correctly drawn up the recovery procedure (based on the results of an inventory of material assets at the enterprise, litigation, with the acceptance of a written explanation from the employee within the period strictly prescribed by law). In the event that the director does not have this evidence, then he does not have the right to dismiss the employee.

Dismissal due to loss of trust is considered legal only if the head of the company has correctly drawn up the recovery procedure.

The dismissal of an employee under this article of the Labor Code of the Russian Federation is the right of the boss, but it is not his duty. He has the right to resort to other types of punishment or not to punish at all.

You can lose trust for the following reasons:

theft, loss, damage to the material assets of the enterprise;
untimely cash transactions;
trade in any goods at a deliberately high / low cost;
illegally written off material values;
scam;
incorrectly executed acts of acceptance / issuance.

The loss of trust will also be caused by such misconduct by the employee, with which material damage will be associated, for example, if he was caught stealing valuables for which he is responsible. However, this case must be in writing.

Dismissal procedure

Consider the procedure for dismissal in connection with the loss of confidence in the workplace:

1. Fixing in writing the illegal actions of the employee.

There is no specially approved form for such a document. Usually, an employee who discovers an oversight writes a report addressed to the director of the organization, in which he indicates:

FULL NAME. the one who discovered.
The conditions under which the infringing act was committed or its results were disclosed.
Exact time and date of detection.

If employees learned about the illegal actions of an employee from law enforcement agencies or someone else, then a report is not issued. If the lost value was revealed during the verification period, then in this case a special act is drawn up.

2. Official investigation.

Based on this evidence, the director of the company begins an internal investigation, during which the culprit is determined. It is done like this:

A commission is created, consisting of at least 3 employees who are not interested in the consequences of the investigation.
An order is drawn up on the creation of a commission, in which the full name is entered. participants, their position, date of creation of the commission, purpose, duration, powers of the participants.

All members of the commission must put their signatures in the order.

Also, such a commission is collected if the employee's act did not cause harm, but could potentially lead to this.

The tasks of this commission include:

Determine the circumstances of the loss - time, place, method.
Describe how the damage was done.
Calculate the total damage.
Determine the culprits.
Gather facts about the case.
Determine the degree of guilt, the type of subsequent punishment.
Keep all materials on this case.

All actions of the members of the commission, as well as information that was received during the investigation period, are recorded in special documents: acts, certificates, notes.

After the work of the created commission is completed, an act is drawn up in which all its participants put their signatures. The offending employee must read and sign this document without fail.

After conducting such an investigation within the organization, you have the right to issue an employee dismissal due to loss of trust.

Only after an internal investigation has been conducted are you entitled to issue an dismissal of an employee due to loss of trust.

3. An explanatory note from a delinquent employee.

Before issuing an order to punish an employee, it is necessary that he writes by hand an explanatory note about what happened. Does he refuse to write? Then he is given a notice that he is obliged to do so. If the employee does not sign this notice, then an act is drawn up. After two days from the moment of warning, the employee did not provide an explanation? Then, in accordance with Art. 193 of the Labor Code of the Russian Federation, an appropriate document is drawn up. If there is a notice and such a document, you can begin the dismissal procedure.

4. The order of execution of the main documents.

An order is issued on the disciplinary punishment of an employee, where his guilt is prescribed. After that, the director issues an order to terminate the contract of employment. It includes the grounds for termination - loss of confidence in the employee.

The employee reads the order and signs it. Refuses to do so - an appropriate entry is made.

If all these documents are in the hands of the employer, then the employee does not make sense to sue the company.

5. Record in the labor and in the card of the employee of the enterprise.

Record that the employee was dismissed under Art. 81, part 1, paragraph 7 of the Labor Code of the Russian Federation fits into the labor and personal card of the employee. Labor is issued on the day of dismissal. The employee signs in a personal card, as well as in the book of accounting for the movement of work books.

6. Payments to the employee upon dismissal.

When calculating an employee, he is paid a salary for the period worked, compensation for unused vacation. The money is paid by the organization on the day of dismissal. The company can force the employee to pay money for the loss caused to him only by a court decision (, Labor Code of the Russian Federation).

So, only employees who work with money and are financially responsible can be fired under the article “Loss of confidence”. If the fault is related to work, then dismissal under the article will also carry a disciplinary sanction, which is why it is necessary to meet the deadlines. Non-work related activities can also cause a loss of confidence if a person is caught in a crime and convicted under the law.

;
- dismissal for disclosure of protected information;
- dismissal for theft of other people's property;
- dismissal for violation of requirements;
dismissal due to loss of confidence;
- dismissal of the head of the organization;
- dismissal of the deputy head and chief
* Removal of disciplinary
* Reward for
* Accounting for rewards and
* Grounds for reducing the amount of benefits and refusal to pay

Termination of the employment contract under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with loss of confidence is possible only in the following cases: The lack of evidence from the employer that the employee has committed these actions entails the recognition of dismissal under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation illegal (see the Decision of the Moscow City Court dated 06/22/2010 in case N 33-18390). If the employee committed guilty acts and the employer followed the procedure for applying a disciplinary sanction in the form of dismissal (an investigation was carried out, an inventory was conducted, an explanation was requested from the employee, the penalty was applied within the period prescribed by law), termination of the employment contract on the specified basis is recognized as lawful (see Ruling of the Moscow City Court dated July 1, 2010 in case No. 33-19482).
When the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, employees may be dismissed due to a loss of confidence in them and in the event that these actions are not related to their work.
Confidence on the part of the employer is expressed in fixing in the job description of the employee the rights and obligations for the maintenance of material and monetary values. An agreement on full liability is concluded with such an employee. However, the existence of such an agreement for dismissal on this basis is not mandatory.
An agreement on full liability in itself will not be a confirmation that the employee directly services material assets.
In the event of litigation, the employer will have to prove the validity of concluding such an agreement, and this can only be done if the position of the employee or the type of work performed is indicated in the List of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full liability (approved Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85).
The application of punishment in the form of dismissal in this case is only the right of the employer. Therefore, he may limit himself to a reprimand or remark, or not to apply a penalty to the employee at all.
The Labor Code of the Russian Federation does not contain a specific list of circumstances that may be considered by the employer as grounds for the loss of confidence in the employee. Loss of trust is an evaluative concept, and the employer has the right to independently qualify the actions of the employee, taking into account the personality of the latter, the circumstances of their commission, etc.
The culpable acts include the following:
committing theft, loss, destruction of inventory items or funds entrusted to the employee, even if on this basis no investigation was carried out by law enforcement agencies and no court decision was issued;
violation of cash discipline (Determination of the Arkhangelsk Regional Court dated May 16, 2002 N 33-1411);
sale of goods at a price higher or lower than the established one (Decision of the justice of the peace of the court district N4 of the city of Kotlas, Arkhangelsk region of 17.05.2004);
fictitious write-off of goods and valuables;
fraudulent activities;
violation of local regulations containing the procedure for issuing commodity and monetary values (Determination of the Ryazan Regional Court of November 29, 2006 N 33-1699), etc.
It should be noted that actions that could cause damage to the employer are also grounds for loss of confidence.
situation from practice. Is it legal to fire an employee who offered illegal services to the employer's clients?
If the employee has committed actions that give rise to a loss of confidence in him, the employer has the right to terminate the employment contract with him.
It should be borne in mind that an employer can terminate an employment contract on this basis only with an employee who directly services monetary and commodity values. According to paragraph 2 of clause 45 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, if the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, the employee may be dismissed due to the loss of confidence in him and in the event that these actions not related to his work, for example, if an employee servicing inventory items provides additional services to customers of a gun store (for issuing licenses for firearms, upgrading weapons sold, etc.). The provision of such intermediary services is a violation of the current legislation, for which criminal liability is provided (Articles 223 and 291 of the Criminal Code of the Russian Federation). Therefore, the employer, having learned about such actions of the employee, may terminate the employment relationship with him due to the loss of trust. At the same time, he must have relevant evidence of the commission of illegal actions by the employee.
situation from practice. Is it legal to dismiss a storekeeper who was detained while trying to take out boxes of stationery from a warehouse due to a loss of confidence in him?
In this situation, the employer has the right to terminate the employment contract with the employee in connection with the loss of confidence in him. According to paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, termination of the employment contract on the grounds provided for in paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is possible only in relation to employees directly servicing material assets (receiving, storing, transporting, distributing, etc.). In this case, it should be borne in mind that this circumstance can be confirmed by an agreement on full liability. Decree of the Ministry of Labor of Russia dated December 31, 2002 N 85 approved the List of positions and works replaced or performed by employees with whom the employer can conclude written agreements on full individual liability for the shortage of entrusted property. Therefore, if such an agreement is concluded with the storekeeper and he has committed actions that give grounds for the loss of confidence in him, the employer may dismiss him. At the same time, the fact of an attempted theft of property must be recorded by an appropriate act.
Despite the fact that the damage was not caused by the actions of the employee, the employer has the right to apply disciplinary measures against him, up to dismissal for actions that give rise to loss of confidence, since the duties of the storekeeper include maintenance of inventory items.
situation from practice. Is it legal to dismiss an employee for committing guilty acts identified at his previous place of work and serving as a basis for losing confidence in him?
An employee may be dismissed due to loss of confidence for guilty actions not only committed at the place of work, but also not related to the performance of his labor duties. According to paragraph 2 of clause 45 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2, if the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, the employee may be dismissed due to the loss of confidence in him and when these actions are not related with his work.
For dismissal on this basis, the employer must obtain a copy of the court verdict establishing the guilt of the employee.
Expert advice: How long does an employer have the right to terminate an employment contract with a storekeeper who attempted to steal money from an organization's safe?
Registration of the fact of detection of actions that give grounds for the loss of trust
There is no unified document that needs to be drawn up upon detection of actions committed by an employee that give rise to a loss of confidence. In practice, the fact of the commission of such actions is recorded by a memorandum of the person who discovered their commission or result. It should reflect:
surname, name, patronymic of the employee who discovered these actions
the circumstances under which the actions were taken;
date and time of the event.
If the employees of the organization received information about illegal actions directly from law enforcement agencies or from third parties, then it is not necessary to draw up a memorandum.
In the case when the loss of inventory items or cash is identified based on the results of the inventory, it is necessary to draw up an appropriate act.
On the basis of these documents, the employer conducts an internal investigation in order to identify the guilty person.
Establishment of a commission to establish the fact of illegal actions and determine the guilt of the employee
To establish the fact of committing illegal actions and the person who committed them, a commission is created, which is formed from competent employees who are not interested in the outcome of the proceedings. To conduct an internal investigation, the employer is recommended to prepare an order to establish a commission of at least three people. The order indicates the names and positions of employees, the purpose, date of creation of the commission, its validity period (it may not be limited to a specific case), as well as the powers of the commission (if they are not specified in a separate local regulatory act of the employer). The tasks of the commission for conducting an internal investigation include: The commission has the right to demand explanations from employees suspected of misconduct. If during the investigation an explanatory note was received from the guilty employee, then it is not necessary to demand it again when applying the penalty.
The commission is also created if there was no direct damage, but the actions of the employee could lead to similar consequences.
With the order on the creation of the commission, it is necessary to acquaint all employees included in the commission against signature.
Conducting an internal investigation does not exclude the possibility of contacting law enforcement agencies.
For dismissal due to loss of confidence, it is sufficient to conduct an investigation and establish the guilt of the employee by the employer on their own.
Registration of the results of the work of the commission to establish the fact of commission of unlawful acts and determine the guilt of the employee
All actions of the members of the commission and the information obtained during the investigation are documented in acts, certificates, memoranda, which are attached to the materials of the investigation.
The results of the work of the commission are reflected in the relevant act, which sets out:
actions that the employee has committed and which give the employer grounds for losing confidence in him;
the circumstances of such actions and the damage they caused or could have caused;
degree of guilt of the employee;
a possible measure of punishment for the person who committed the guilty actions, etc.
Be sure to indicate that it is for the commission of these actions that the employee loses the trust of the employer.
The act is signed by members of the commission.
If an inventory was carried out to establish the fact of causing material damage, then its results are attached to the documents of the internal investigation.
If the employee’s guilt is proved by the court or illegal actions are revealed with the help of a third-party organization (for example, a bank), then a court decision in a criminal (administrative) case and documents of a third-party company can also be attached to the investigation materials.
The employee in respect of whom the investigation was carried out must be familiarized with the decision of the commission against signature. In the event of his refusal or evasion of signature, an appropriate act is drawn up.
Obtaining explanations from an employee who has committed actions that give grounds for the employer to lose confidence
Before issuing an order to apply a disciplinary sanction in connection with the loss of confidence, a written explanation must be required from the employee (Article 193 of the Labor Code of the Russian Federation, clause 47 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). The Labor Code of the Russian Federation does not specify in what form such an explanation must be requested. Therefore, if the employee is ready to draw up an explanatory note, a written notice of the need to give an explanation can not be issued. If the situation is clearly of a conflict nature, then it is better to issue this requirement in writing and hand it over to the employee against signature. If he refuses to sign, it is necessary to draw up an appropriate act.
If, after two working days from the moment the request was made, the employee did not provide an explanation, then an appropriate act is drawn up. If there is such an act and a document indicating that an explanation was requested from the employee, dismissal is possible without an explanatory note (Article 193 of the Labor Code of the Russian Federation).
If the employer violates the procedure for applying a disciplinary sanction: does not ask the employee for a written explanation, the latter is subject to reinstatement (for example, Ruling of the Leningrad Regional Court dated 05/19/2010 N 33-2306 / 2010).
Registration of an order on the application of a disciplinary sanction and an order (instruction) on the termination (termination) of an employment contract due to loss of confidence
Before issuing a dismissal order, a disciplinary sanction must be applied to the employee, since this violation is included in the list of grounds for bringing the employee to disciplinary liability (Article 192 of the Labor Code of the Russian Federation). There is no unified form of an order to apply a penalty, so the organization develops it independently. The order must include the following information:
surname, name, patronymic of the employee;
the position of the employee;
the structural unit where the employee works;
misconduct committed by the employee, with references to the violated clauses of the contract or job description and to documents confirming this violation;
the circumstances of the misconduct, the degree of its severity and the guilt of the employee.
As a basis for issuing an order, the details of the act, memorandum or other document fixing the misconduct, the employee's explanatory note or the act of refusing to provide explanations are indicated.
Immediately after the issuance of an order for a disciplinary sanction, it is necessary to draw up an order (order) on the termination (termination) of the employment contract (unified form N T-8). It must indicate that the employee is leaving due to loss of confidence in accordance with paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation. In the column "Ground" should reflect the details of the order to apply a disciplinary sanction.
It is necessary to familiarize the employee with the order against signature. If he refuses to sign, an entry is made in the order: "Familiarized, refused to sign" or "It is impossible to familiarize against signature" (part 2 of article 84.1 of the Labor Code of the Russian Federation).
The period during which it is possible to issue an order (instruction) on the termination (termination) of an employment contract due to loss of confidence
It is necessary to issue an order (instruction) to terminate the employment contract due to loss of trust immediately after the issuance of the order to apply the penalty. Thus, the terms for applying the penalty and dismissal of the employee for misconduct must coincide.
Registration of a work book upon dismissal due to loss of confidence
Information about the dismissal is entered in the work book, while indicating that the employee is leaving due to loss of confidence on the grounds of paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The work book is issued to the employee on the day of dismissal (part 4 of article 84.1 of the Labor Code of the Russian Federation). Upon receipt of it, he must sign on his personal card and in the book of accounting for the movement of work books and inserts in them.
Payments to be made to an employee upon dismissal due to loss of confidence
When an employee is dismissed due to loss of confidence, he must be paid wages for the period worked, compensation for unused vacation and other amounts due (bonuses, etc.). The payment is made on the day of dismissal, which is the last working day (Art. 84.1 and 140 TKRF).
If the employee did not work on the day of dismissal, then these amounts must be paid no later than the next day after the dismissed person submits the relevant request. At the same time, the Labor Code of the Russian Federation does not establish the form of such an appeal. This means that a verbal statement of the employee is sufficient. In the event of a dispute about the amounts due to the employee upon dismissal, on the day of dismissal or filing a corresponding claim, he must be paid an undisputed amount (Article 140 of the Labor Code of the Russian Federation). This amount should be understood as the amount for which the employee has no claims.
If a dispute arises about the amounts payable (for example, about the amount of compensation for unused vacation or bonuses), these issues are resolved after the termination of the employment contract in the manner prescribed for the consideration of an individual labor dispute (Chapter 60 of the Labor Code of the Russian Federation).
It is impossible to withhold the amount of material damage caused upon dismissal, since such a basis for withholding is not provided for in Article 137 of the Labor Code of the Russian Federation. To recover this amount, the employer should apply to the court in accordance with Article 248 of the Labor Code of the Russian Federation.

One of the reasons for termination at the initiative of the employer of labor relations may be dismissal due to loss of trust. This norm is enshrined in paragraph 7 of Part 1 of Art. 81 TC, but they use it infrequently. To terminate the contract with such wording, strict observance of the special procedure for dismissal and a number of certain conditions is necessary.

If the dismissal procedure is not followed, the court may conclude that the employment contract was illegally terminated and reinstate the employee at work, and the employer may be required to pay compensation to the reinstated employee for the forced downtime.

What Circumstances Can Lead to Loss of Trust

The Labor Code does not contain a clear list of misconduct that may be the reason for the loss of trust. The employer has the right to evaluate the actions of the employee and apply the appropriate penalty. In order for an employer to legally apply the article of the Labor Code of the Russian Federation “Dismissal for loss of confidence”, 3 conditions must be met:

the employee has committed any misconduct;
the employee's labor activity is connected with material values or money;
the actions committed by the employee caused the employer to lose confidence (including inaction);

Termination of an employment contract on the basis of loss of trust has negative consequences for employees.
These include: 1) interruption of seniority - affects temporary disability payments 2) non-payment of unemployment benefits for the first three months, in the future the amount will be reduced 3) lack of permission for a certain position (temporary or for life).

An important point in this situation is that the misconduct of the employee does not necessarily have to cause any damage to the employer. If damage is caused, the right to compensate for it and bring the employee responsible for this to material liability arises automatically. In this case, the repeated actions of this employee may further lead to material losses, therefore, this reason for dismissal of an employee allows the employer to prevent possible damage and protect the monetary and material values of the organization.

In what cases is dismissal possible?

Dismissal under the article "Loss of confidence" for a misconduct committed by an employee during working hours is, in accordance with part 1 of article 192 of the Labor Code, one of the ways of disciplinary action. In addition to him, the head has the right to use other penalties provided for in this article, such as a remark or reprimand. For certain categories of employees, various regulations provide for other types of penalties, for example, the transfer of an employee to another position or job. What kind of penalty to apply in a particular case, the head decides on his own.

Dismissal due to loss of confidence is allowed for an employee who uses material or monetary values in his work. As a general rule, it is necessary to draw up an agreement on personal liability with such an employee. The list of positions of employees with whom such contracts should be drawn up is given in the Decree of the Ministry of Labor No. 85, adopted on December 31, 2002. It is also allowed to dismiss an employee under paragraph 7 of Part 1 of Art. 81 of the Labor Code and in a situation where this offense is not related to direct work.

Important! If the misconduct of an employee, which can lead to a loss of confidence, is not related to his work activity, then dismissal for this reason will not be considered a disciplinary sanction.

Judicial practice shows that dismissal for loss of confidence is possible in cases where the liability agreement is not signed. This happens if the obligations for working with cash or commodity values are fixed in an employment contract with him, or he is authorized to sign any documents relating to material values \u200b\u200band finances.

Special grounds exist for the dismissal of a civil servant for loss of confidence. Various types of official penalties can also be applied to this category of employees when they commit disciplinary offenses. But in Art. 59.2 of Law 79-FZ "On the State Civil Service" lists specific reasons for dismissal on such a basis, namely:

failure to provide information about personal income and income of close relatives;
doing business;
opening accounts in foreign banks by the employee himself and his close relatives;
participation in the management of a commercial organization, except as permitted by law.

It is not allowed to dismiss pregnant women on such a basis, during the next vacation or illness of an employee.

About the termination of labor relations in connection with the loss of trust is described in the video

Dismissal procedure

The procedure for dismissal for loss of confidence consists of several stages. Only strict observance of the entire sequence of these stages can guarantee the legality of termination of the employment contract under paragraph 7 of Part 1 of Art. 81 of the Labor Code and will allow the organization to protect its rights in the event of litigation on the legality of such dismissal.

Some facts

The main points considered by the established commission are: 1) determination of the circumstances under which the damage was caused, indicating the place, time and method of causing it 2) if necessary, examine those places that suffered damage 3) identify the cost of damage at a given moment 4) identify the persons who caused the damage 5) collect evidence 6) establish the degree of guilt of these persons and determine the amount of the penalty 7) determine the causes and conditions that caused the damage.

If actions of an employee are found that may cause a loss of trust, they should be documented. There is no standard form for such a document; in practice, such actions of an employee are reflected in a memorandum. The employee who discovered the result of such actions or witnessed them, indicates in the report his data, the date and time of the event and describes all the circumstances. In the event of a shortage of material assets or money during the inventory, an act is drawn up.
Based on these documents, an internal investigation is organized to determine the guilty person. For this purpose, a special commission is created from disinterested competent employees in the amount of at least 3 people. The commission conducts an investigation even if no material damage has been caused, but the relevant actions of the employee could have caused such consequences. In addition to his own official investigation, the head of the organization has the right to apply to law enforcement agencies. However, establishing the guilt of the employee by the employer itself is sufficient for dismissal due to loss of confidence.
The conclusions made by the commission and the information received are recorded in the relevant act. One of the obligatory points of this document is the conclusion that for the actions taken, the employee loses the trust of the employer. The employee must be familiarized with the act against signature, if he refuses to sign, they draw up an act in which the members of the commission sign.
Before applying a penalty to an employee, an explanation should be obtained from him in writing in accordance with Art. 193 of the Labor Code of the Russian Federation. If the employee does not agree to write an explanation, it is also better to submit a request for its provision in writing. If the employee does not provide an explanation within 2 working days, the employer draws up an act about this. If there is a written request for an explanation and an act, an employee can be dismissed without an explanatory note.
Further termination of the employment contract is carried out according to the general rules: a termination order is created, a note-calculation is prepared, a corresponding entry is made on the employee’s personal card and in the work book. All documents necessary for dismissal are issued to the employee in the general manner.
Thus, in order to avoid litigation, it is necessary to strictly follow the procedure for dismissal for loss of confidence.

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