Labor Code of Art 40 p 1 what payments. Dismissal of employees according to clause 1 of part 1 of article 40 of the Labor Code (reduction of the number or staff), an algorithm of actions. Signs of "drunkenness": speech impairments, impaired coordination, the smell of alcohol

An employment contract concluded for an indefinite period, and a fixed-term employment contract before its expiration can be terminated by the employer only in cases :

  • changes in the organization of production and labor, including liquidation, reorganization, bankruptcy or re-profiling of an enterprise, reduction of the number or staff of employees;
  • the revealed inconsistency of the employee with the position held or work performed due to insufficient qualifications or health conditions that prevent the continuation of this work, as well as in case of refusal to grant access to state secrets, if the fulfillment of the duties assigned to the employee requires access to state secrets;
  • systematic non-fulfillment by the employee without good reason of the obligations imposed on him by the employment contract or by the rules of the internal labor regulations, if disciplinary or social penalties were previously applied to the employee;
  • truancy (including absence from work for more than 3 hours during the working day) without valid reason;
  • failure to appear for work for more than 4 consecutive months due to temporary disability. (This provision does not apply to maternity leave, as well as to sick leave, if the legislation establishes a longer period for retaining a place of work (position) in case of a certain disease). For employees who have lost their ability to work due to work injury or occupational disease, the place of work (position) is retained until the restoration of working capacity or the establishment of disability;
  • reinstatement of an employee who previously performed this work;
  • appearing at work drunk, in a state of narcotic or toxic intoxication;
  • commission of theft (including minor) of the owner's property at the place of work, established by a court verdict that has entered into legal force or by a resolution of a body whose competence includes the imposition of an administrative penalty or the application of social pressure;
  • calling or mobilizing the owner - natural person (employer) during the special period;
  • establishing the inconsistency of the employee with the position for which he was hired, or the work performed during probationary period.

In addition to the listed general grounds for termination employment contractthat apply to all employees are defined additional grounds for termination of an employment contract at the initiative of the employer concerning selected categories workers. According to this article, an employment contract can be terminated at the initiative of the employer in the following cases:

  • a single gross violation of labor duties by the head of an enterprise, institution, organization (branch, representative office, department and other a separate subdivision), his deputies, the chief accountant of the enterprise, institution, organization, his deputies, as well as officials of the revenue and collection bodies who have been assigned special titles, officials of the state financial inspection and state control bodies at prices;
  • guilty actions of the head of an enterprise, institution, organization, as a result of which wages were paid to employees of the enterprise out of time or in amounts below the statutory minimum wage;
  • culpable actions of an employee directly serving monetary, commodity or cultural values, if these actions give grounds for mistrust on the part of the employer (dismissal due to lack of confidence);
  • the employee performing educational functions has committed an immoral act incompatible with the continuation of this work;
  • being, contrary to requirements, in direct subordination to a loved one;
  • termination of the powers of officials in case of repeated violation of the requirements of the legislation on licensing, on the issuance of permits or in the provision of administrative services.

Each of the above grounds for dismissing employees on the initiative of the employer is discussed below. .

Restrictions on the dismissal of employees at the initiative of the employer

Obtaining the consent of the trade union body to fire an employee

If the dismissal of an employee is carried out by the employer without contacting the trade union body, then in the event of judicial consideration of the dispute, the proceedings on the case are suspended, the court requests the consent of the trade union body and, after receiving or refusing it, considers the dispute in essence.

When is the consent of the trade union body to dismissal not required?

Dismissal for systematic failure by an employee to perform his duties without good reason (clause 3 of article 40 of the Labor Code)

Upon dismissal of an employee it is necessary to indicate in the order not only a specific offense , for the commission of which he is dismissed, but also all disciplinary offenses previously committed by the employee, for which he was brought to disciplinary responsibility, since this article is the basis for the dismissal of the employee precisely for systematic failure to perform work duties .

It should be noted that the basis for termination of the employment contract is the absence of the employee at work during the established period, but going to work for at least one day interrupts this period and in the future, the four-month period must be re-calculated ... At the same time, periods of absence from work of less than four months cannot be summed up (see).

The established arbitrage practice allows the dismissal of an employee only for production needs in dismissal, which is understood as a situation in which the replacement of a disabled employee is necessary, and there is no possibility to distribute his duties among other employees or to take another employee in his place under a fixed-term employment contract.

It should be noted that the dismissal of an employee is an employer's right, not an obligation (see the newspaper "Pratsya i salary" No. 44 (672) of November 25, 2009, p. 17). Therefore, if the employer does not have a production need, he is not obliged to fire an employee in the event of his prolonged illness and absence from work for more than four consecutive months.

Employment contract cannot be terminated with an employee who has lost the ability to work due to injury or occupational disease. He retains his place of work (position) until the restoration of working capacity or the establishment of disability.

Dismissal in connection with the reinstatement of the previous employee at work (clause 6 of article 40 of the Labor Code)

Termination of an employment contract on the basis is possible in the event of the reinstatement of a previously dismissed employee to his previous job by a court decision, the initiative of the employer or the request of the relevant body supervising compliance with labor legislation. However, such dismissal of an employee is permissible only if it is impossible, with his consent, to be transferred to another job (position).

Restoration at work is allowed if the previous the employee was dismissed without legal grounds , including without the consent of the trade union body, if obtaining such consent in accordance with the law is necessary, as well as in the case if the employee was dismissed from work due to illegal conviction .

It should be borne in mind that the work (position) performed by him earlier is provided to the person no later than one month from the date of contacting the place previous workif such an appeal was received within 3 months from the date the acquittal entered into legal force or the decision (ruling) was issued to close the criminal case due to the absence of corpus delicti or lack of evidence of the accused's participation in the crime.

At the same time, the Supreme Court of Ukraine considers impossible employee recovery in his previous position, not only in the event of liquidation of an enterprise, institution, organization and reduction of the position, but also in the presence of other reasons that prevent the restoration of an employee, for example, if the position is occupied by an employee who, according to the current legislation, cannot be dismissed (see the newspaper " Pratsya i salary "No. 48 (772) of December 28, 2011, p. 12). In this case, such a person should be provided with another equivalent job (position).

In addition, the legislation of Ukraine the possibility of terminating an employment contract with a newly hired employee is not provided for due to the return of an employee who quit in connection with election to an elective position at the end of the term of office. An exception is the case when the newly hired employee was hired only for the period of being in the elective position of the specified employee. It should be noted that dismissal on the basis will be recognized as legal only if it is impossible to transfer the employee with his consent to another job .

FROM full text This analytical article is available free of charge by registering in the online version of the ezine.

The article also covers the following issues:

    • Dismissal for appearing at work drunk, in a state of narcotic or toxic intoxication (clause 7 of article 40 of the Labor Code)
    • Dismissal in connection with theft at the place of work (clause 8 of article 40 of the Labor Code)
    • Dismissal of an employee in case of conscription or mobilization of an employer - an individual during a special period (clause 10 of article 40 of the Labor Code)
    • Dismissal in the event that an employee is found to be inconsistent with the position for which he was hired or the work performed during the probationary period (clause 11 of article 40 of the Labor Code)
    • Dismissal due to a single gross violation of labor duties (clause 1 of article 41 of the Labor Code)
    • Dismissal of the head of the enterprise due to late payment of wages or payments in an amount below minimum wage (Clause 11, Article 41 of the Labor Code)
    • Dismissal due to loss of confidence (clause 2 of article 41 of the Labor Code)
    • Dismissal for committing an immoral offense (clause 3 of article 41 of the Labor Code)
    • Dismissal of employees who, contrary to the requirements of the Law of Ukraine "On the Prevention of Corruption", are directly subordinate to a close person (clause 4 of article 41 of the Labor Code)
    • Dismissal in connection with the termination of the powers of officials (clause 5 of article 41 of the Labor Code)
    • Dismissal of officials in case of repeated violation of the legislation on licensing, on the issuance of permits and on the provision of administrative services (part 2 of article 41 of the Labor Code)

Andriy Bodnarchuk, Legal Adviser, Sokolovsky & Partners Law Firm

This publication highlights the issues of dismissal under clause 1 of part 1 of article 40 of the Labor Code (reduction of the number or staff of employees)

During the preparation of the publication, the following legislative and other regulatory legal acts were used:

2. Law of Ukraine "On Employment of the Population";

3. Law of Ukraine "On wages";

4. Law of Ukraine "On trade unions, their rights and guarantees of activity";

5. Resolution of the Plenum of the Supreme Court of Ukraine "On the practice of consideration of labor disputes by courts".

There are white and black stripes in the activities of any enterprise. With the onset of the financial crisis, the majority of entrepreneurs have reduced production volumes, sales of goods, and therefore, it is impossible to maintain a pre-crisis staff of workers, therefore, the management of such business entities quite often decides to reduce the number or staff of workers. We have developed an approximate algorithm for the actions of the owner of the enterprise, who decided to fire employees under clause 1 of part 1 of article 40 of the Labor Code.

In order to dismiss an employee on the basis of clause 1 of part 1 of Art. 40 of the Labor Code of Ukraine, it is necessary:

1. The owner or the body authorized by him to issue an order on the reduction of positions. All employees who may be fired in the future should be familiarized with this order, against receipt.

Based on the changes to be made to staffing table (meaning the reduction of certain positions), it is necessary to determine specific workerswho occupy redundant positions and are subject to dismissal.

2. Each employee who is subject to dismissal must be notified of the future dismissal against receipt, no later than 2 months before the date of dismissal.

When determining the range of employees who are subject to dismissal due to job cuts, it should be borne in mind that the prevailing right to stay in work is given to employees with higher qualifications and labor productivity (taking into account whether the employee has higher education, work experience, passing refresher courses, etc.) (Art. 42 of the Labor Code).

If there are "open" vacancies at the enterprise, the employee is invited to take vacant post... If the employee refuses to be transferred to another position, an appropriate act of refusal is drawn up.

3. In order to dismiss an employee of the enterprise, it is necessary to notify the primary trade union about this. For the dismissal of employees, due to a reduction in the number or staff of employees, the trade union organization (enterprises), of which the employee is a member, must give consent. The owner or the body authorized by him has the right to terminate the employment contract no later than one month from the date of obtaining the consent of the primary trade union organization (union representative).

4. Not later than two months before the dismissal of employees, the company sends to Public service employment report on the planned layoffs of workers.

5. At the final stage, the owner, or his authorized body, on the basis of an order to reduce positions (see paragraph 1), issues, in the prescribed manner, an order (orders) to dismiss specific employees (in accordance with the number of employees who are dismissed) ...

On the day of dismissal, the employee is issued: employment history with a written notice of dismissal and a copy of the order of dismissal.

On the day of dismissal, a full settlement is carried out with the employee, including debts for wages, compensation for days unused vacation and severance pay, the amount of which is determined by Art. 44 of the Labor Code of Ukraine.

6. The personnel service, at the request of the employee, must issue the latter with a certificate of his work at the enterprise, indicating the specialty, qualifications, position, working hours and the amount of wages.

7.After the employee is fired, the personnel service must provide the employment center for ten calendar days, counting from the date of dismissal, the list of actually dismissed workers.

It should be noted that this algorithm of actions is approximate and may not take into account the nuances of dismissal under clause 1 of part 1 of article 40 of the Labor Code at a particular enterprise, therefore we advise you to contact specialists in labor law.

Lawyers and attorneys of the Law Firm "Sokolovsky & Partners" have extensive experience in complex legal services for companies that reduce the number or staff of employees. We "worked out" the documents (orders, notifications, protocols, acts, etc.) that are used personnel service enterprises upon dismissal of employees. The courts have repeatedly confirmed the legality of the dismissal of employees, under paragraph 1 of part 1 of article 40 of the Labor Code, who worked at enterprises to which our law firm provided legal assistance.

Not so often, but all the same, the trade union committees receive submissions from the administration to give consent to dismissal for systematic non-fulfillment by the employee without good reason of the obligations imposed on him by the labor contract or by the rules of the internal labor regulations, if the employee was previously subjected to disciplinary or social punishment ( paragraph 3 of Article 40 of the Labor Code of Ukraine).

According to labor law, such dismissal can be made only under certain conditions:

  1. The employee does not fulfill or improperly fulfills his labor obligations arising from the labor contract, the rules of the internal labor schedule. I draw your attention to the fact that in each insert to the card functional responsibilities (for workers) and job responsibilities (for the RCC) there are two sections linked to each other. These are "duty" and "responsibility". In other words, each obligation may (under certain circumstances) be liable. I mean punishment. In the form of a disciplinary sanction (reprimand) or partial deprivation of the premium. The Labor Code does not contradict the simultaneous application of disciplinary sanctions and the reduction in the amount of the premium.
  2. Non-performance or improper performance of labor duties without good reason (intentional or negligent). In order to avoid incriminating the administration of this, one should act in full accordance with the duties prescribed in regulatory documents (leaflets or instructions). If, for example, a team that has arrived for the execution of the PM cannot start work at the specified time due to the failure of the technological unit at the specified time, then both the management of its workshop and the customer's workshop must be notified of this fact. Or, for example, in the course of work it turns out that an additional tool is needed to execute it. Then you need to notify your leader (foreman, foreman) about this and get certain instructions. But in no case, do not wait how and who will solve the problem. For both in the card of functional responsibilities, and in the rules of the internal labor schedule, the obligation to act in problem situations is written out.
  3. Non-performance or improper non-performance must be systematic. Those who systematically violate labor discipline include those employees who previously had penalties for violation labor discipline and who violated it again within a year from the date of the application of the penalty for the first violation. Let's say March 17, 2014. the employee was reprimanded for being late for work, and in September of the same year, through his fault, the release of defective products was allowed. In this case, two actions of the administration are possible:

Reprimand or initiate dismissal for systematic violation of labor discipline. Although, as a rule, the system begins to be applied in the presence of two reprimands. But exceptions are both possible and acceptable.

  1. The imposition of a disciplinary sanction is allowed only within a month from the moment the misconduct was discovered.

To apply a disciplinary sanction, officials entitled to apply it are obliged to request a written explanation from the violator of labor discipline. This action should be given special emphasis. The fact is that quite often employees mistakenly believe that by refusing written explanations, they deprive the administration of the possibility of applying a disciplinary sanction. By no means, and rather the opposite. Refusal to explain, firstly, makes it impossible for the employee himself to state the reasons and arguments that did not allow him to perform the assigned work, and secondly, the fact of refusal will be compulsorily formalized by an act. Which will give grounds for issuing an order or order on punishment.

You should both know and remember that for each violation of labor discipline, only one disciplinary penalty can be applied. Let me remind you again that partial or complete deprivation does not apply to disciplinary action... This requirement (one penalty for one violation) indicates that having reprimanded the employee for the misdemeanor, the owner is no longer entitled to talk about dismissal for what he did. Because according to the Labor Code of Ukraine, both a reprimand and dismissal are disciplinary punishments.

And the last thing. When choosing the type of punishment, no doubt, the severity of the offense and the harm caused by it, the circumstances under which it was committed, as well as the previous work of the employee, must be taken into account.

The employee got into an accident, as a result of which she was injured. She was given a certificate of incapacity for work, which is about four months. She cannot go to work and does not want to quit. Is it possible to fire her under paragraph 5 of Article 40 (further - Labor Code)?

Dismissal of an employee at the initiative of the owner is not allowed during the period of his temporary incapacity for work. Clause 5 of Article 40 of the Labor Code is an exception to general rule under certain conditions. Dismissal under this clause is possible if the employee, as a result of temporary incapacity for work, is absent from work for more than four months in a row or more than the long period established by law, during which he retains his place of work (position) in case of certain diseases, for example, tuberculosis.

Dismissal under paragraph 5 of Article 40 of the Labor Code is a right, not an obligation of the employer; he may not fire an employee who has been sick for more than four months.

Article 40 of the Labor Code defines the grounds for dismissal at the initiative of the employer, and therefore, accordingly, the employee's consent is not provided. If in the future the dismissed employee will challenge such a decision, the employer must be ready to prove that the dismissal of the employee is due to the interests of production and that it is impossible to replace the absent employee with another or redistribute his work among other employees.

To dismiss an employee on this basis, the prior consent of the elected body of the trade union, which operates in the enterprise and of which the employee is a member, is required.

Consequently, the employer, on the day after the expiration of four months of the employee's absence from work, may issue a dismissal order, having previously obtained the consent of the trade union. On the same day, you need to properly calculate and issue a work book.

You should first make sure that the cause of the injury is not a work injury, the injury was not received at work or on the way home from work. In this case, the employer does not have the right to dismiss the employee until the restoration of the ability to work or the establishment of disability.

Another restriction on dismissal on this basis - if the employee belongs to the category of persons defined by Article 184 of the Labor Code (pregnant women and women with children under the age of three (up to six years - part six of Article 179), single mothers with a child in under the age of 14 or a disabled child), whose dismissal at the initiative of the owner is not allowed.

If a sick employee starts work for at least one day, and then again opens the certificate of incapacity for work, the period of four months must be counted again.

 

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