The law specifically specifies which violations by an employee job duties should be classified as rude:

a) absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);

b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication;

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;

e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

This list of gross violations is exhaustive and is not subject to broad interpretation.

Absenteeism

Truancy is one of the most serious violations labor discipline. Therefore, the legislation secured the right of the employer to terminate the employment contract with the employee, even for a single absenteeism without good reason. Absence from work during the whole working day or a shift or absence from work (an employee being outside the workplace) without a good reason for more than 4 hours in a row during the working day is recognized as absenteeism. The law of June 30, 2006 No. 90-FZ also supplemented the concept of absenteeism with such a type as absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration. This addition was made due to the fact that in some cases, by decision of the employer, the working day can be set to less than 4 hours. Thus, now if the employee came to work, but then was absent from the workplace during the entire working day, which was less than 4 hours, his actions should be regarded precisely as absenteeism.

Special cases of absenteeism are also:

- leaving work without good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the dismissal of his own free will;

- leaving work without good reason before the expiration of the two-week notice period for dismissal of one's own free will;

- abandonment without a valid reason of work by a person who has concluded an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice of early termination employment contract;

- unauthorized, without the permission of the administration, the departure of the employee on vacation, at least within the time limits determined by the vacation schedule;

- unauthorized, without the consent of the administration, the use of days off (provided, for example, for work on weekends), except in cases where the employer, by virtue of the law, did not depend on the decision on the time of granting the specified days off or rest and he illegally refused to provide these days (for example, refusal to provide an employee who is a donor in accordance with part 4 of article 186 of the Labor Code and article 9 of the Law of the Russian Federation of June 9, 1993 No. 5142-1 "On donation of blood and its components" a day of rest directly after each day of donating blood and its components);

absenteeism from work after the transfer of the employee to new job produced by the employer in full compliance with applicable law.

However, if the transfer is recognized judiciary illegal, then the dismissal of the employee cannot be considered justified and he must be reinstated in his previous job.

Absenteeism is absence from work. If the employee did not appear at events not related to work (although they are held in working time), then this cannot serve as a basis for dismissal (for example, the employee did not go to a demonstration, other social events, the employee did not appear at the solemn meeting of the foreign delegation that visited the company, the employee did not appear at the presentation of a new product of this company, etc.) .

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that average earnings in such cases, a reinstated employee may be charged not from the first day of absenteeism, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced.

AT Soviet times The most terrible weapon of the traffic police inspector was a hole punch: three gross violations during the year - and you are left without rights, the so-called accumulative system. So the drivers, who had two holes in the coupon, behaved on the road quieter than water below the grass.

The hole puncher was washed away by a wave of perestroika, but in the 90s a warning card appeared: each violation, depending on the severity, was evaluated by points, and the one who scored 15 points (the so-called cheating system) became horseless for a year. Then the points were cancelled. But in other countries they are!

The point system was adopted in Latvia and Norway in 2004, in the Maldives in 2005, in Spain, Romania and the Czech Republic in 2006, in France in 1993 (adjusted in 2003). For more than ten years, the point system has been operating in Hungary, Greece, Israel, Ireland, Slovenia, and Germany.

Most often, points are provided only for gross violations. There are 40 such types in France, about 30 in Italy, Korea and Malta, 20 in Great Britain and Hungary, and only seven in Norway. Only pedantic Germans award points for every violation.

The usual list of gross violations: leaving the scene of an accident, driving while intoxicated or refusing a medical examination, driving under a traffic light, serious speeding. If the punishment already provides for deprivation of rights, for example, for "drunkenness", then no points are awarded.

The validity of the points varies from one to three years. Although in Latvia points for ordinary violations live for two years, and for gross violations - five.

The severity of the punishment is different: from several months to several years of a horseless life. In Korea, they are deprived of the opportunity to drive for a day for each point, in Latvia, with a set of 16 points (for beginners - 10), they are excommunicated from the wheel for a year, and with a second set - for life.

In Malta, the points system only works for inexperienced drivers. In the UK, Latvia and France, the attitude towards drivers is differentiated: there are no indulgences for beginners, the law is more severe for them.

Marks on the points scored are no longer manually set: they are entered into databases. In some countries, the driver has the opportunity to view his history.

By the way, penalty points can be worked out. In France, Germany and Hungary, to improve your driving history, you need to attend a course of lectures on traffic safety. It is impossible to attend courses regularly - only once every few years. AT South Korea write off points to those who report violations on the road, and this is not called snitching, but active citizenship.

Reclaiming rights is not easy. In Poland and Israel they pass theory, in Latvia, France and the Czech Republic - also practice. Moreover, in France, even after successfully passing all the exams, a person first receives a temporary certificate - as a novice driver. In Germany, a guilty driver is bullied to the fullest: in addition to passing exams, he visits a psychologist and writes a special Idiotentest, the official name of which is Medizinisch-Psychologische Untersuchung, “medical-psychological examination”. Of course, all exams are paid.

Does it help? In Italy, after the introduction of such a practice in two years, the number of deaths in road accidents decreased by 20.5%, injured - by 22%. In Latvia, after a year, the number of accidents decreased by 7%, and those killed in road accidents - by 11%. In the Czech Republic, the accident rate decreased by 27% in the first month. True, the first results do not reflect the real picture: drivers get used to new fines, and law-abidingness inevitably declines.

In our country, the return of the point system has been repeatedly discussed: the last time in 2013 this was suggested by the deputy Vyacheslav Lysakov. And now, finally, the project was accepted - in the form of changes to the 12th "automobile" chapter of the Code of Administrative Offenses. In the State Duma, the project was represented by Vyacheslav Lysakov and Deputy Interior Minister Igor Zubov. At the same time, the general, as a justification, said that about 40% of the perpetrators of the accident had previously violated the Rules. And Lysakov explained that points will help to effectively deal with chronic offenders, which are 3-5% of the total.

So, the new article 12.38 "Systematic violation of the rules of operation, use of the vehicle and management vehicle"offers for a three-time gross violation during the year to deprive the rights for a year and a half. The "credit" year is counted from the moment the decision on punishment for the first gross violation comes into force - that is, ten days after the traffic police or the court issues a verdict.

If a person without a driver’s license at all turns out to be a chronic violator (and this happens!), Then he will be fined 10-30 thousand rubles. In this case, a decent amount accumulates: a fine for the violation itself plus a fine for driving without a license of 5-15 thousand - and a new one for another 10-30 thousand.

Misdemeanors recorded by automatic cameras are not taken into account, since automation, in accordance with Article 4.1 of the Code of Administrative Offenses of the Russian Federation, can only fine. Thus, only the inspector who personally recorded the violation and determined that it became the third gross violation in a year has the right to initiate a case under the new article.

Will this help increase the number of bribes? Indeed, with each gross violation, the driver will have more desire to negotiate amicably with the inspector. And this can again become a problem: as you know, video monitoring of traffic violations in our country was introduced precisely because of widespread corruption in the traffic police.

And another problematic aspect is the long-suffering Chapter 12 of the Code of Administrative Offenses itself. Take a look at the articles of serious violations: why are some of them fined 5,000 rubles and deprived of their rights, while others can get off with a 500-ruble bill or even a warning? Wouldn't it be more reasonable to first clean up the 12th chapter, conditionally divide the offenses according to the severity of the consequences and determine the appropriate punishment for each - and only then introduce a point system?

We hope that in the course of the future discussion of Article 12.38 of the Code of Administrative Offenses, some of the most controversial points will be removed from it. For example, scoring points for crossing a solid line when turning or turning around - after all, this violation may be unintentional if the markings are partially swept up by snow or erased. And points “for pedestrians” can certainly lead to the flourishing of corruption, because in megacities there are such loaded “zebras” that almost any driver can be accused of not providing a road for a pedestrian. Stay in ambush, slow down and extort!

But one way or another, Article 12.38 “for systematic violations” will be adopted this year.

Violations of traffic rules, which are classified as gross
Those who have committed such violations three times a year are subject to the new article 12.38 of the Code of Administrative Offenses, according to which they plan to deprive them of their rights for 1-1.5 years.
Art. Code of Administrative Offenses	Offense	Punishment
part 3 article 12.9	Exceeding the speed limit by more than 40 but not more than 60 km/h	a fine of 1000-1500 rubles.
part 4 article 12.9	Exceeding the speed limit by more than 60 but not more than 80 km/h	a fine of 2000-2500 rubles. or deprivation of rights for 4-6 months
part 5 article 12.9	Exceeding the speed limit by more than 80 km/h	for 6 months
part 6 article 12.9	Repeated speeding by 40-60 km/h	a fine of 2000-2500 rubles.
part 7 article 12.9	Repeatedly exceeding the speed limit by more than 60 km/h
part 1 article 12.10	Crossing a railway outside the crossing, leaving the railway crossing with a closed or closing barrier or with a prohibitory signal from a traffic light or a crossing attendant, stopping or parking at the crossing	a fine of 1000 rubles. or disqualification for 3-6 months
part 3 article 12.10	Repeated violation of part 1 of article 12.10	disqualification for a year
part 1 article 12.12	Passing a prohibiting traffic light or a prohibiting gesture of the traffic controller, except for cases of leaving the stop line	a fine of 1000 rubles.
part 3 of article 12.12	Repeated violation of part 1 of article 12.12	a fine of 5000 rubles. or disqualification for 4-6 months
part 2 of article 12.13	Failure to comply with the requirement of traffic rules to give way to a vehicle enjoying the priority right to pass through intersections	a fine of 1000 rubles.
part 2 of article 12.14	U-turn or reversing in places where such maneuvers are prohibited (with the exception of the motorway and violation of the requirements of signs and markings)	a fine of 500 rubles.
part 3 article 12.14	Failure to comply with the requirement of traffic rules to give way to a vehicle enjoying the priority right of movement	a warning or a fine of 500 rubles.
part 4 article 12.15	Departure in violation of traffic rules into the oncoming lane	a fine of 5000 rubles. or disqualification for 4-6 months
part 5 of article 12.15	Repeated violation of part 4 of article 12.15	deprivation of rights for a year, in case of fixation by cameras - a fine of 5000 rubles.
part 2 of article 12.16	Turning left or making a U-turn in violation of the requirements prescribed by road signs or markings	a fine of 1000-1500 rubles.
art.12.18	Failure to comply with traffic rules to give way to pedestrians, cyclists	a fine of 1500 rubles.

Dismissal from the enterprise of an employee for repeated violation of elementary obligations is possible. And this applies to negligent employees who simply do not want to work, but are looking for a way to simply earn money, while not wanting to receive a salary.

What is a breach of duty?

There are all sorts of nuances in the process of work. Unfortunately, it also happens when it is necessary to dismiss an employee from the enterprise.

There are no more options, he repeatedly does not fulfill his labor duties, starts the working day in an inadequate state, or simply does not perform the functions assigned to him.

List of grounds for dismissal:

1. . Absence from the workplace for more than half of the work shift or more than 4 is considered absenteeism. If the employee did not appear at the workplace at the allotted time, then the employer can safely prepare an administrative document on his dismissal;
2. An employee acting in accordance with, came to work in a state of intoxication or under the influence of drugs. He risks being fired from the enterprise, regardless of his labor achievements;
3. If the person with whom the employment contract has been concluded has committed, then this case is submitted to the employer for consideration. According to the Labor Code of the Russian Federation, if the amount of theft in monetary terms does not exceed the average monthly, then the head can issue an administrative document to deduct from the employee's salary an amount in the amount of damage, but if the amount of damage exceeds the average monthly earnings, then everything is decided by a court decision;
4. Disclosure of state secrets or confidential information, the non-disclosure of which he signed in the documents of the employer, can also be a reason for dismissal;
5. Non-compliance with the requirements, if this entailed a violation of health and a threat to the life of other persons carrying out activities in accordance with an employment contract.

All cases are considered individually and may be grounds for dismissal.

Details about the walk

Absence without reason for more than 4 hours.

If an employee was absent without a good reason during the whole working day at the workplace, then such a circumstance is regarded as absenteeism.

In the outdated edition of the Labor Code of the Russian Federation, absence from work for 4 hours or more was considered absenteeism, but when considering this provision, a slight inaccuracy was made, namely, not all employees had a working day of 4 hours. As a result of these circumstances, absence from work for 4 hours is considered absenteeism.

The reason for leaving the company is:

1. The employee does not perform labor duties, even if he is present on the territory of the enterprise, and the manager at this time cannot find him;
2. Unauthorized departure from the place of work without prior warning of the administration;
3. Untimely message to the employer about what to take. Time is given for two weeks so that the manager can correctly orient himself and recalculate the workforce;
4. Going on a trade union leave without an appropriate document in which it was necessary to sign;
5. Use of previously worked time for personal needs without a formal application.

As an example, such a factor can be cited, for example, an employee previously applied to his immediate supervisor with an application for granting him time off, since he needs to undergo a technical inspection, but his supervisor did not give official permission for time off and signed the application for a number of reasons. The employee did not show up for work the next day, and such an action became a reason for dismissal from the enterprise.

But there are different circumstances, for example, the employee was absent from the workplace due to injury.

In this case, the leader should not rush to dismiss, since it is necessary to find out where his subordinate was after all. It is possible that he will bring a certificate from a doctor.

Drunk at work

There is a norm for the presence of alcohol in the blood.

According to labor legislation, intoxication can occur not only as a result of the use of alcoholic beverages, but also as a result of the use of narcotic and toxic drugs.

To accurately determine whether a person is drunk or not, it is necessary to conduct a medical examination. Based on the results of the examination, a decision is made on admission to work or removal from the performance of official duties.

With all such a tough approach in resolving the issue, you should know that at the rate of 80 kg of mass in the presence of 0.5 ppm in a person’s blood, this is about half a liter of beer or 0.75 mg of vodka, an employee cannot be fired. If this dose is exceeded, then you should act in accordance with the letter of the law.

An important nuance: the manager cannot force the employee to undergo this examination, but the employee’s refusal also casts doubt on his condition.

Therefore, in practice it is quite difficult to dismiss a person for this violation, for this there must be compelling circumstances.

Theft of property

Theft must be proven.

Labor legislation states that the theft of property is an administrative form of responsibility. An employee who repeatedly gets caught on this is subject to dismissal from the enterprise.

List of reasons for dismissal:

• material damage amounted to an amount not exceeding the average monthly earnings of an employee. This circumstance was clarified after an independent examination. As a result, according to the issued administrative document, the amount determined by the commission is withheld from the employee;
• the employee caused material harm to the employer in an amount exceeding his average monthly earnings. After the peer review this fact was confirmed. According to the audit, the employer must apply to the court, where a decision will be made to withhold from wages an employee of a certain amount;
• the employee, as a result of his incompetence, allowed the loss of the employer's property, which affected the cost of production. For example, he did not take measures to block the valves, while water from the tap flowed out in a large volume. This case needs to be proven, but it also refers to the loss of material values.

Repeated theft or failure to comply with elementary requirements that caused damage to the property of the employer are grounds for dismissal, but only the employer can make this a reality, in this case he solves many issues, including those related to dismissal.

About disclosure of classified information

The condition is written in the employment contract.

Many specialties and positions provide for mandatory familiarization with classified materials. For this, a special stamp is assigned.

When familiarizing themselves with documents containing information on state secrets, the special departments first acquaint them with documents on non-disclosure against signature. The same documents prescribe what will happen if the secret is brought to third parties.

If these requirements are violated, the employee is automatically dismissed from the enterprise. But before that, an independent check is carried out. If, based on the results of the investigations, the fact of disclosure is confirmed, then an administrative document is issued and the employee is suspended from duty in a short period of time.

Along with state secrets, there is confidential information and trade secrets. Any enterprise should develop special Provisions on non-disclosure of information, as well as procedures for issuing this information to third parties.

Such cases are subject to investigation and, if there is evidence of the fact of disclosure, the employee is considered as a candidate for dismissal.

It is possible that after the information recorded by the employer on the disclosure of classified information, trade secrets or confidential information for the first time, the manager, at his discretion, will make a decision to punish the employee, and if a repeated violation is detected, dismissal will follow.

On violation of labor protection requirements

The employee must comply with OT requirements.

Special attention is paid to safety today. The instructions clearly state what the employee must do and where he must not interfere.

In large organizational structures Additionally, OHS standards can be developed, in which special attention is paid to OHS violations. The system of labor protection conditions can work as follows:

1. The employee is reprimanded for non-compliance with elementary requirements. This comment can be included in the list of comments on the first stage of control, while the employee must be familiarized with the specified defect against signature;
2. If the fact of violation is repeated, the next step will be the deprivation of bonuses. Everything is reflected in the administrative document for the enterprise, it also indicates that with further comments of the same nature, the employee will be fired;
3. If the remark is issued for the third time, then documents are prepared for the dismissal of the employee and an Order is prepared.

For gross violations of labor protection requirements, both section managers and shop managers who issued a task that resulted in injury to the employee or death are dismissed.

A whole investigation is carried out and, based on the results, the head is fired. In this case, the order for the enterprise is mandatory, after which all employees are familiarized with this document in order to prevent this situation from happening in the future.

Violation and failure to perform official duties

Need to follow job description.

The development of proper instructions for employees is mandatory, but in some cases it can come in handy, so the employer seeks to streamline the process of developing and familiarizing with job responsibilities so that if contentious issues there was no doubt what to do. In total, there are two categories of workers - these are engineers and workers.

The actions of management in case of failure to perform their functions may be as follows:

• job descriptions are developed for engineering and technical workers, which clearly spell out rights and obligations. If the employee categorically refuses to perform or simply does not perform the work assigned to him, then after repeated warnings, administrative documents are created.

They must be familiarized with the employee against signature. The content should contain a warning in case of repeated violation.

That is, if he once again did not fulfill his duties, then he is subject to automatic dismissal from the enterprise. Dismissal is made in the form of an order;

• it is not necessary for a worker to develop a job description, all functional responsibilities recorded in the ETCS. He should be made aware of what he must do during the shift.

For the worker, there is also a system for issuing shift-daily tasks. In case of systematic failure production tasks comments are made to the worker on the part of the management, then a warning Order is issued indicating what has not been done and what will happen if a similar violation is repeated.

With subsequent non-fulfillment, the worker is dismissed from the enterprise in the form of an order.

All employers need to think carefully about the legality of their actions, since the employee has the right to go to court. To prevent this from happening, it is necessary to clearly state the information in the job description and correctly draw up orders.

To avoid mistakes, all developed draft documents should be submitted for consideration to lawyers and to the trade union committee. If there are comments on their content, then they must be eliminated and only after signing the document stakeholders and approved by the employer.

Not in all cases it is possible to dismiss an employee with ease and peace of mind, but it is extremely necessary.

From this video you will learn about the dismissal for theft.

Question form, write your

Dismissal for a single gross violation of labor duties by an employee (clause 6, part 1, cm. 81 of the Labor Code of the Russian Federation)

In accordance with and. 38 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 when considering the case on the reinstatement of a person dismissed under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the employee has committed one of the gross violations of labor duties specified in this paragraph. At the same time, it should be borne in mind that the list of gross violations of labor duties, which gives grounds for terminating the employment contract with the employee under paragraph 6 of part 1 of Art. 81 of the Code, is exhaustive and is not subject to broad interpretation.

Absenteeism, those. absence from the workplace without good reason during the whole working day (shifts), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

The Plenum of the Supreme Court of the Russian Federation in its decision of March 17, 2004 No. 2 (paragraph 39) indicated that when resolving a dispute about the termination of an employment contract with an employee under subp. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis, in particular, can be made:

• a) for absenteeism from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);
• b) the presence of an employee without good reason for more than four hours in a row during the working day outside the workplace;
• c) abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week warning period (part 1 of article 80 of the Labor Code of the Russian Federation);
• d) leaving work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1, Article 292, part 1 of article 296 of the Labor Code of the Russian Federation);
• e) unauthorized use of days off, as well as unauthorized leave on vacation (main, additional).

At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism if the employer, in violation of the obligation stipulated by law, refused to provide them and the time for the employee to use such days did not depend on the discretion of the employer (for example, a refusal to an employee who is a donor to provide in accordance with part 4 of article 186 of the Code of the day of rest immediately after each day of donating blood and its components).

In accordance with paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start it, the employer is obliged to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code of the Russian Federation). If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified, and the employee is subject to reinstatement in his previous job.

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting average earnings during forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average earnings to the reinstated employee in such cases may be recovered not from the first day of absence from work, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced (and. 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 ).

It is important to take into account the position of the Constitutional Court of the Russian Federation on the constitutionality of sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Thus, absenteeism may result in the termination of the employment contract by the employer in accordance with subpara. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation, which is one of the ways to protect the violated rights of the employer.

The decision of the employer to recognize the specific reason for the absence of an employee from work as disrespectful and, as a result, dismissal of him for absenteeism can be verified in court. At the same time, the absence of a list of “good reasons” in the contested norm cannot in itself be considered as violating the constitutional rights of citizens, since, in carrying out a judicial review and resolving a specific case, the court does not act arbitrarily, but proceeds from general principles legal, and therefore disciplinary, responsibility (in particular, such as justice, proportionality, legality) and, guided by the norm of the Labor Code of the Russian Federation contested by the applicants in conjunction with its other provisions, evaluates the entire set of specific circumstances of the case, including checking and evaluating the circumstances and motives for the absence of the employee at work, the previous behavior of the employee, his attitude to work, etc.

From judicial practice

1. The Judicial Collegium finds justified the refusal to satisfy the claims for recognition of the dismissal order and the order to impose a disciplinary sanction as illegal.

The employee voluntarily left workplace, was absent without good reason for more than four hours in a row during the work shift, a disciplinary sanction was applied to him in the form of dismissal under subpara. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

AT explanatory worker indicates that at ten o'clock in the evening he left the territory of the enterprise in his car, was stopped by a road patrol service (DPS), which, when inspecting the car, found 80 liters of gasoline without documents, in connection with which he was taken to the police department until the circumstances were clarified.

The court, recognizing the dismissal as lawful and justified, correctly proceeded from the fact that during the period from 21.00 to 02.50 the plaintiff was absent from the workplace without good reason, while the procedure for his dismissal by the employer was not violated.

The court of first instance came to a reasonable conclusion that the plaintiff left his workplace without permission, having left at 21:00, without informing his employer about this.

The detention of the plaintiff by the police in itself can be recognized as a good reason for the absence of the plaintiff from the workplace, if he had been detained while going to work. The plaintiff was on his way home from work and no evidence of his intention to return to work was presented to him.

Therefore, the employee made absenteeism without good reason. Evidence of respectfulness of unauthorized leaving the workplace and his absence from work for more than four hours by the plaintiff is not presented.

Bringing the plaintiff to disciplinary responsibility and subsequent dismissal produced in compliance with Art. 192, 193 of the Labor Code of the Russian Federation 1 .

2. The court of first instance took into account the duration of the absence of the plaintiff from the workplace without good reason, took into account the nature of the violation, circumstances of the offense, and also reasonably proceeded from the fact, that the right to choose the type of penalty belongs to the employer.

As established by the court of first instance, on January 1, 2015, F. was hired as a driver in OOO Zh. (Based on the order dated January 15, 2015, the name of the company was changed to OOO A.). Then, on March 1, 2015, the plaintiff was accepted as a part-time loader at A. LLC.

Due to F.'s absence from the workplace from September 7, 2015 to September 11, 2015, he was dismissed on the basis of sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation from the position of a driver and, on the same grounds, from the position of a loader.

At the same time, the fact of absence from the workplace without valid reasons was confirmed by acts of absence from the workplace for the specified period, time sheets, and an order to terminate employment contracts dated January 1, 2015 and March 1, 2015.

It can be seen from the materials of the case that, due to the absence from the workplace, the employer requested an explanation from the plaintiff, which he refused to give, which is reflected in the act of September 15, 2015. place F. neither the court of first nor the court of appeal ns submitted.

The court of first instance came to the correct conclusion that the defendant had sufficient grounds to impose a disciplinary sanction on the plaintiff in the form of dismissal under sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. Assessing the compliance of the severity of the misconduct committed by the plaintiff with the penalty applied to him, the court of first instance took into account the duration of the plaintiff's absence from the workplace without good reason, took into account the nature of the violation, the circumstances of the misconduct, and also reasonably proceeded from the fact that the right to choose the type of penalty belongs to the employer.

Taking into account that the employer complied with the procedure and terms for bringing the plaintiff to disciplinary responsibility by the employer, the court rightfully refused to satisfy the stated claims for reinstatement at work.

3. The court rightly concluded that the plaintiff was absent from work without good reason, which is a disciplinary offense in the form of absenteeism.

Citizen C. was a member of labor relations with the city administration and worked as the director of a specialized children's and youth sports school Olympic reserve in sports acrobatics.

By order of the city administration dated February 26, 2015 No. 96-r, Ts. was dismissed from March 12, 2015 from her position under sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

The basis for applying to C. disciplinary action in the form of dismissal under subp. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation was the absence of an employee at the workplace without good reason in the period from November 23, 2013 to March 2015, established in the acts.

Since no evidence was presented to the court confirming that Ts. for good reason was absent from the workplace, which is a disciplinary offense in the form of absenteeism.

At the same time, the court correctly established that Art. 193 of the Labor Code of the Russian Federation, which provides for the procedure for applying penalties, was observed by the defendant when the plaintiff was dismissed, she repeatedly sent letters to demand explanations about her absence from work, which she left unanswered, before applying a disciplinary sanction, the employer demanded a written explanation from the employee, in which she was not valid reasons for the absence are indicated, with the employer’s order to terminate the employment contract, Ts. was familiarized with the signature on March 12, 2015.

The court correctly applied the substantive law, established the circumstances relevant to the case, gave a proper legal assessment to the evidence, and did not establish violations of the norms of procedural legislation that entailed the annulment of the decision in the case.

4. The court of first instance came to a reasonable conclusion that the fact of absenteeism was not proven by the employer.

On the basis of an employment contract dated December 1, 2011, Sch. worked at OOO D. in the position of leader structural unit in St. Petersburg.

By order dated June 1, 2015, the plaintiff was dismissed from his position on the grounds provided for by goi, “a”, paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation, for absenteeism committed on April 20 and 21, 2015.

In resolving disputed legal relations, the court of first instance came to a reasonable conclusion that the fact of absenteeism was not proven by the employer. The court rightfully considered that workplaces (premises) in the family mall, in the location of which the plaintiff was supposed to perform his labor duties, were returned by the employer as a tenant to the landlord on April 19, 2015.

Therefore, on April 20 and 21, 2015, i.e. during the period of absenteeism imputed to the plaintiff, Shch. could not fulfill his official duties at the family mall. At the same time, the impossibility of fulfilling labor duties was due not to the guilty actions of the employee, but to the actions of the employer, who did not provide the plaintiff with a workplace after the transfer of the leased premises.

The panel of judges agreed with the conclusion of the court that the defendant did not prove the fact of the plaintiff's guilty actions, which could be qualified as a disciplinary offense, and taking this into account, considers that Sch.'s dismissal was unlawful.

The court of first instance also made the correct conclusions about the defendant's violation of the established Part 3 of Art. 193 of the Labor Code of the Russian Federation, a monthly period for bringing the plaintiff to disciplinary liability. The court found that the defendant became aware of the plaintiff's absence from work on April 20 and 21, 2015 no later than April 30, 2015, and the dismissal order was issued on June 1, 2015. 1

5. The court came to the conclusion that, that there are no grounds for recognizing the reasons for the plaintiff's absence from work as valid.

Citizen M. filed a lawsuit against OOO G. on the recognition of illegal dismissal and reinstatement at work with payment for forced absenteeism.

Notice that she was fired for absenteeism in the order go, “a”, paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation, along with a copy of the dismissal order, M. received by mail on December 9, 2015.

According to the dismissal order, the grounds for this were acts of absence from the workplace from November 19, 2015 to November 27, 2015, a memo, a notice, an act of refusing to read the notice, an act of refusing to submit an explanatory note.

Dismissal on the grounds provided for in paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation, refers to disciplinary sanctions (part 3 of article 192 of the Labor Code of the Russian Federation).

If the employment contract with the employee is terminated under sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation for absenteeism, it must be borne in mind that dismissal on this basis, in particular, can be made: for absenteeism from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift); for finding an employee without good reason for more than four hours in a row during a working day outside the workplace, for unauthorized use of days off, as well as for unauthorized leave on vacation (basic, additional).

Resolving the stated requirements and refusing to satisfy them, the court concluded that there were no grounds for recognizing the reasons for the plaintiff's absence from work from November 19 to November 25 and November 27, 2015 throughout the day and November 26 from 14 to 18 h is not valid and that the applied disciplinary sanction in the form of dismissal under sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation in proportion to the committed disciplinary offense.

The plaintiff's argument that she did not commit absenteeism was not confirmed during the consideration of the dispute.

The defendant submitted certificates of absence from work without a good reason on November 19, 20, 23-25, 27 and from 14 to 18 hours on November 26, 2015.

The testimony of the witnesses was reasonably accepted by the court as admissible evidence. Evaluation of the testimony of these witnesses given by the court in the decision.

The arguments of the complaint about the violation of the procedure for applying a disciplinary sanction, expressed in failure to familiarize themselves with the acts of absence from work, failure to demand explanatory notes, are not valid, since the plaintiff refused to sign in receiving a notification about the presentation of explanations about the absence from work.

Thus, the arguments of the complaint about the violation by the defendant of the dismissal procedure must be rejected as unfounded. The court dismissed the plaintiff's claims in full.

6. The defendant did not present evidence to the court showing that when imposing a penalty in the form of dismissal, the severity of the misconduct committed, the circumstances under which it was committed, as well as the previous behavior of the plaintiff, his attitude to work were taken into account.

By order of the administration of the enterprise, the driver-forwarding agent S. was dismissed under subp. "a" i. 6 h. 1 tbsp. 81 of the Labor Code of the Russian Federation. The fact of the absence of the plaintiff at the workplace was established at the court session and was not disputed by the parties.

These circumstances are confirmed by: memoranda of the chiefs of the convoy N. and V., certificates of S.'s absence at the workplace, as well as on the territory of the enterprise.

It can be seen from the materials of the case that the defendant did not present evidence to the court of first instance, indicating that when imposing a penalty in the form of dismissal, the severity of the misconduct committed by S., the circumstances in which it was committed, as well as the previous behavior of the plaintiff and his attitude towards labor.

Together with him, during the consideration of the case by the court, it was established that S. coordinated his absence from work according to the schedule with the immediate head of the motorcade, which was confirmed by the witness Ya.

For the entire period of work, the plaintiff did not have disciplinary sanctions, which the defendant did not dispute during the consideration of the case.

Thus, taking into account the above circumstances, the court of first instance correctly came to the conclusion that the plaintiff's claims were satisfied, reinstated him at work as a forwarding driver of the enterprise.

Appearance of an employee at work (at your workplace or on the territory of the employing organization or facility, where, on behalf of the employer, the employee must perform labor function ) in a state of alcohol, narcotic or other toxic intoxication (subparagraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

According to clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, when resolving disputes related to the termination of an employment contract under subp. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (appearance at work in a state of alcoholic, narcotic or other toxic intoxication), the courts should bear in mind that on this basis employees who were during working hours at the place of performance of work duties in a state of alcoholic, narcotic or other toxic intoxication. It does not matter whether the employee was suspended from work in connection with the specified condition.

It should also be borne in mind that dismissal on this basis can also follow when the employee was in such a state during working hours not at his workplace, but on the territory of this organization, or he was on the territory of the facility where, on behalf of the employer, he had to perform a labor function .

The state of alcoholic or narcotic or other toxic intoxication can be confirmed as medical opinion and other types of evidence, which must be assessed accordingly by the court.

From judicial practice

Citizen B. filed a lawsuit against motor transport company(ATP) on invalidating the certificate of examination, illegal and unreasonable order of the director of the LTP to terminate the employment contract, imposing the obligation to cancel given order, recovery of the average wage for the time of forced absenteeism.

He was fired under "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation for appearing at work in a state of alcohol intoxication. The basis for the issuance of this order was the certificate of examination for the presence of alcohol with a breathalyzer.

From the act, drawn up in the presence of drivers A. and S., it follows that B. was examined by the inspector for pre-trip medical examinations S. using the Alcotest-203 breathalyzer. - 0.52%.

The fact of the examination was also confirmed by the data of the pre-trip and post-trip log medical examination drivers.

The suitability of the device for measuring the concentration of alcohol vapor in the exhaled air "Alcotest-203", manufactured in 2012, is confirmed by the passport for the specified device, a copy of the verification certificate.

The court of first instance examined the evidence presented by the parties, questioned witnesses who confirmed that the plaintiff was at the workplace with signs of intoxication.

Disputing the validity of the defendant's actions to apply to him a disciplinary punishment in the form of dismissal for appearing in a state of intoxication at work, the plaintiff submitted to the case file a protocol of a medical examination to establish the fact of alcohol consumption and intoxication, from the conclusion of which it follows that as of 16: 47 - 0.03 mg / l, 17:07 - 0.00 mg / l, the state of intoxication has not been established.

It follows from the materials of the case that the plaintiff underwent a medical examination on his own, on the basis of an agreement in accordance with which he was provided with a paid service.

In the court of first instance, witness V. confirmed his conclusion, and also testified that at the time of the examination of the plaintiff there were no external signs of intoxication. At the time of his examination, the breathalyzer could no longer show alcohol, since, as follows from the plaintiff's explanations, he consumed alcohol (one and a half liters of beer) the day before at 21.00.

Interrogated by the court of first instance as a specialist, narcologist K. testified that in this situation there could have been malfunctions in the device during the examination of the plaintiff by doctor V., since alcohol vapors could not disappear without a trace from the human body in such a short period of time.

As follows from the plaintiff's explanations in the court of first instance, the latter did not deny that he had drunk alcohol the day before - at 21:00, which he also indicated in his own explanation after drawing up an act against him.

Taking into account the above, the panel of judges came to the conclusion that the evidence refuting the fact that at 14 h 18 min. (the time of drawing up the act) he was not in a state of alcoholic intoxication, the plaintiff was not presented, while the totality of the relevant and admissible evidence presented in the case materials confirms that the plaintiff was in a state of alcoholic intoxication.

The Court of First Instance justifiably invalidated the Plaintiff's arguments regarding his illegal dismissal in view of the fact that, according to the results of the medical examination conducted by doctor V., he was sober, and therefore, the testimony of Alcotest-203, by which his examination was carried out, is doubtful. As the court of first instance correctly pointed out, this device has a passport, a verification certificate, which is confirmed by the documents submitted to the court. The qualifications of the medical worker and his professional training There is also no doubt in the mind of the court.

Thus it is the court of first instance took into account in the aggregate all the established circumstances, assessed the evidence collected in the case in accordance with the requirements of Article. 67 Code of Civil Procedure of the Russian Federation, including the explanations of the persons participating in the case, the testimonies of the interrogated witnesses, and concluded that there were no legal grounds for satisfying the claims stated by the plaintiff.

Disclosure of legally protected secrets (state, commercial, official and other), famous employee due With performance of their job duties, including disclosure of personal data of another employee (sign. "in" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation).

In paragraph 43 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, it is explained that if an employee challenges the dismissal under subpara. "c" p. 6 h. 1 art. 81 of the Code, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with applicable law, refers to state, official, commercial or other secrets protected by law, or to the personal data of another employee, this information became known to the employee in connection with with the performance of his labor duties and he undertook not to disclose such information.

From judicial practice

Citizen S. applied to the district court with a claim against a closed insurance company. joint-stock company(ZASO). The requirements are motivated by the fact that, by order of the deputy director, he was dismissed under subp. "in" part 6 part 1 art. 81 of the Labor Code of the Russian Federation in connection with the disclosure of official secrets that became known to him in connection with the performance of his labor duties. The plaintiff considers the dismissal illegal, points out that he did not disclose trade secrets.

By decision of the district court, S.'s claims were partially satisfied. The court decided to recognize the order as illegal, to change the wording of the grounds for S.'s dismissal from “Fired due to a single gross violation by the employee of labor duties - disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including disclosure of personal data of other employees, sub. "in and. 6 h. 1 tbsp. 81 of the Labor Code of the Russian Federation "to" Dismissed of his own free will, Art. 80 of the Labor Code of the Russian Federation.

After checking the legality and validity of the court decision in accordance with Art. 327.1 Code of Civil Procedure of the Russian Federation within the arguments of the appeal Zhatoby, after hearing the parties, the panel of judges found no reason to cancel or change the decision of the court.

By virtue of Art. 46 (part 1) of the Constitution of the Russian Federation, which guarantees everyone judicial protection of his rights and freedoms, and the provisions of international legal acts that correspond to it, in particular Art. 8 of the Universal Declaration of Human Rights, December 10, 1948, Art. 6 (p. 1) of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950, as well as Art. 14 (and. 1) of the International Covenant on Civil and Political Rights of December 16, 1966, the state is obliged to ensure the exercise of the right to judicial protection, which must be fair, competent, full and effective.

The court of first instance established that the plaintiff, on the basis of an employment contract, was hired by WASO as the head of the User Support Department of the Department of Infrastructure Technologies of the Directorate of Information Technologies of WASO.

According to clause 7.1 of the employment contract, the employee undertakes to comply with the laws on trade secrets and local regulations the employer's obligation to protect the confidentiality of information (in accordance with the Regulations on Trade Secrets approved by the employer).

By the order of the Director General of ZASO, a list of information containing confidential information in the organization was approved. The plaintiff familiarized himself with the specified order and gave an obligation not to disclose commercial secrets.

To the Director General of ZASO from the Director for information technology a memo was received stating that S. copied confidential information from ZASO onto external media.

It does not follow from the literal interpretation of the memorandum that S. was allowed to disclose secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of labor duties, there is no specific data on the commission of this disciplinary offense by the employee, which would could be grounds for bringing him to disciplinary responsibility.

Satisfying the claims for recognition of the dismissal order as illegal, the trial court, having examined and evaluated according to the rules of Art. 67 Code of Civil Procedure of the Russian Federation all available evidence in the case, came to the conclusion that the defendant did not provide evidence that meets the principles of relevance, admissibility, reliability and sufficiency, the fact that the plaintiff disclosed trade secrets that became known to him in connection with the performance of his labor duties. The information provided by the defendant was not classified as confidential, the dismissal of the plaintiff on the grounds of sub. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal.

The arguments of the appeal that the information was a trade secret of value to the company, the judicial board considers untenable.

The trade secret regime is considered established after the owner of the information constituting a trade secret has taken the measures specified in Part 1 of Art. ten federal law dated July 29, 2004 No. 98-FZ "On Trade Secrets", i.e. putting on material media containing information constituting a trade secret, or including in the details of documents containing such information, the heading "Commercial secret" indicating the owner of such information (for legal entities- full name and location, for individual entrepreneurs - full name and place of residence).

According to clause 1.2 of the Regulation on the procedure for organizing and carrying out work to protect confidential information in SASO, confidential information is recorded on paper (documents, publications, books, brochures, booklets, etc.), magnetic (floppy disks, audio, video tapes, etc.) etc.), optical (laser discs) and other media. Such documents are assigned the delimiting stamp "Confidential".

defendant in violation of Art. 56 of the Code of Civil Procedure of the Russian Federation, no evidence was presented to the court of first and appeal instances that the information that became known to the plaintiff by virtue of the performance of official duties and contained in the folder, which was subsequently copied to an external medium, was assigned the stamp "Commercial secret" indicating the owner of such information , in connection with which the conclusion of the court of first instance in this part, according to the panel of judges, is lawful and justified.

Commitment at the place of work of theft (including small) of another's 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 (sub. "g" p. 6 h. 1 cm. 81 of the Labor Code of the Russian Federation).

In accordance with and. 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 when considering cases on the reinstatement of persons whose employment contract was terminated under subp. "g" p. 6 h. 1 art. 81 of the Code, the courts must take into account that on this basis, employees who have committed theft (including petty) of another's property, embezzlement, its deliberate destruction or damage can be dismissed, provided that these unlawful actions were committed by them at the place of work and their guilt is established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses.

Any property that does not belong to the this employee, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization.

The established one-month period for the application of such a disciplinary sanction is calculated from the date of entry into force of a court verdict or decision of a judge, body, official authorized to consider cases of administrative offenses.

Subparagraph "g" of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation was the subject of consideration by the Constitutional Court of the Russian Federation.

According to Mr. N., who challenged the constitutionality of this norm, it contradicts sg. 2, 7 (part 2), 15, 19, 46 and 125 of the Constitution of the Russian Federation, since, without defining the concept of “place of work”, it allows you to terminate an employment contract with an employee who, on the date of the court verdict, held a different position with the same employer than at the time of the crime.

The Constitutional Court of the Russian Federation did not find grounds for accepting this complaint for consideration, indicating that the federal legislator, regulating the issues of the emergence, change and termination of labor relations, in order to ensure the constitutional freedom of an employment contract (Article 37 of the Constitution of the Russian Federation), is competent by virtue of Art. 71 (and. "c") and 72 (clause "k" part 1) of the Constitution of the Russian Federation provide for unfavorable legal implications non-fulfillment by the party of its obligations under the employment contract, adequate to the degree of violation of the rights of the other party, including the grounds for termination of the employment contract at the initiative of one of the parties.

By concluding an employment contract, the employee undertakes to conscientiously fulfill his labor duties, observe labor discipline, the rules of internal work schedule, take care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees (Article 21 of the Labor Code of the Russian Federation). These legal requirements apply to all employees. Their culpable non-fulfillment, in particular, the commission of the theft of someone else's property at the place of work, established by a court verdict that has entered into legal force, may result in the termination of the employment contract by the employer in accordance with subpara. "g" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, which is one of the ways to protect the violated rights of an employer whose employee continues his labor activity after committing a crime.

Thus, the provision of the Labor Code of the Russian Federation disputed by the applicant cannot be considered as violating his constitutional rights.

From judicial practice

Citizen B. filed a lawsuit against OOO K. on recognizing the wording of the grounds for dismissal as inconsistent with the law, changing the wording of the grounds for dismissal, collecting wages for the time of forced absenteeism, and compensation for non-pecuniary damage.

In support of the claim, she indicated that by order of February 3, 2015 she was dismissed from work on the basis of sub. "g" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation (theft). She considers the actions of the employer illegal, since she did not commit theft of property in the store. He believes that the employer could not dismiss her on this basis, since guilt in embezzlement must be established by a court verdict or other decision.

By the decision of the district court dated May 12, 2015, the dismissal of B. from LLC "K." but sub. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation was declared illegal. At LLC "K." assigned the duty to cancel this order and dismiss B. under Art. 80 of the Labor Code of the Russian Federation since February 9, 2015

Satisfying the plaintiff's demands for the recognition of illegal dismissal on the basis of an order dated February 3, 2015 for committing theft at the place of work, the court of first instance reasonably proceeded from the fact that the verdict of the court, which entered into legal force, or the decision on an administrative offense, confirming the fact that the plaintiff had committed there is no theft at the place of work, in connection with which the dismissal of B. on the indicated basis is illegal and unreasonable.

At the same time, the panel of judges cannot agree with the court's conclusion that the defendant is obliged to cancel the order of February 3, 2015 and to dismiss the plaintiff at his own request. The plaintiff did not demand that the defendant be required to cancel the order of February 3, 2015 and dismiss her under Art. 80 of the Labor Code of the Russian Federation. The decision of the court in this part is subject to cancellation.

Violation of labor protection requirements, entailing grave consequences (accident at work), accident, catastrophe) or knowingly creating a real threat of the onset of such consequences (subparagraph “e”, paragraph 6, part 1, cm. 81 of the Labor Code of the Russian Federation).

Subparagraph "e" of paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation was the subject of consideration by the Constitutional Court of the Russian Federation.

So, Mr. S., who worked at JSC "G." the driver of an underground self-propelled machine, by order of the employer dated November 9, 2004, he was dismissed from work on the grounds provided for in subpara. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, in connection with the violation of labor protection requirements and the commission of an act that knowingly created a real threat of serious consequences.

Citizen S. challenged the constitutionality of subpara. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, which provides for the possibility of terminating an employment contract at the initiative of the employer in case of violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

According to the applicant, this legal provision, which allows to dismiss an employee in case of violation of labor protection requirements contained in local regulations that are not officially published, does not comply with Art. 7 (part 2) and 37 (parts 1 and 3) of the Constitution of the Russian Federation.

The Constitutional Court of the Russian Federation indicated that, by concluding an employment contract, the employee undertakes to conscientiously fulfill his labor duties, requirements for labor protection and ensuring labor safety (Article 21 of the Labor Code of the Russian Federation). Their culpable failure to comply, in particular, violation of labor protection requirements, if this violation entailed grave consequences or knowingly created a real threat of such consequences, may serve as a basis for termination by the employer of the employment contract in accordance with subpara. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation.

In accordance with Part 3 of Art. 68 of the Labor Code of the Russian Federation, when hiring, the employer is obliged to familiarize the employee with local regulations directly related to the employee's work, including the local regulation containing labor protection requirements.

Thus, on the issue of compliance sub. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation of the Constitution of the Russian Federation there is no uncertainty.

From judicial practice

1. The court concluded that there was no causal link between the violations by the plaintiff and the consequences, in connection with which the dismissal of the plaintiff under sub. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the court considered illegal.

Citizen B. filed a lawsuit against the organization to recognize the dismissal order as illegal, reinstatement, recover material damage and compensation for moral damage, motivating her claims by the fact that on September 15, 2014 she was dismissed for a single gross violation of labor duties by an employee , which created a real threat of the onset of serious consequences (God, "d" and. b Art. 81 of the Labor Code of the Russian Federation). This fact was established by the commission on labor protection.

The court found the claim justified and subject to satisfaction on the following grounds.

Termination of an employment contract on this basis is lawful only if the violation of labor protection requirements entailed serious consequences (accident, accident) or knowingly created a real threat of serious consequences. The fact of violation by the employee of safety requirements, requirements and norms for labor protection must be established and documented. Violation of labor protection rules must be established by the commission on labor protection or the commissioner for labor protection, whose activities are regulated model provision on the committee (commission) for labor protection, approved by order of the Ministry of Health and social development RF dated May 29, 2006 No. 413 and Recommendations on the organization of the work of an authorized (trusted) person for labor protection of a trade union or labor collective, approved by the Decree of the Ministry of Labor of Russia dated April 8, 1994 No. 30.

Order No. SKDI-244 dated August 18, 2014 “On approval of the composition of the commission on labor protection” created a commission to conduct an investigation to establish the facts of violations of labor protection requirements by employees of the infrastructure directorate (a contact wire burned out on August 17, 2014).

Based on the results of the work of the commission on August 20, 2014, act No. 2 “On the results of the work of the commission to investigate the facts of violations of labor protection requirements” was drawn up, which states that on August 17, 2014, the contact network was damaged on the Dagomys - Sochi stretch of the Tuapse distance power supply, as a result, the contact network wire was energized at 3.3 kV and lay on the upper structure of the track, all employees of Russian Railways and citizens located near the damage site were actually at risk of fatal electric shock.

Ensrgodispatchsrom B. violated the requirements of the "Safety Rules for the operation of the contact network and automatic blocking power supply devices railways Russian Railways OJSC, approved on December 16, 2010 (clause 3.4), which created a real threat of fatal injury to the distance workers. Since the guilty actions of the energy dispatcher B. caused an accident and could lead to fatal injury to the electrician of the area of ​​​​the contact network of the Sochi station, and also knowingly created a real threat of fatal injury to employees of Russian Railways and citizens located near the site of damage, the commission considered that to B .should apply a disciplinary sanction in the form of dismissal under subp. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation.

However, the defendant did not provide evidence of the possibility of a real onset of grave consequences. According to the court, the defendant's argument that the guilty actions of the energy manager B. caused the accident, as indicated in the recall, is also valid, because there were no such consequences.

In addition to the violation of labor protection requirements and the occurrence or possibility of serious consequences, it is necessary to have a causal relationship between the plaintiff's guilty misconduct in violating labor protection requirements and the threat of serious consequences.

The assessment of the evidence presented, when, as a result of the investigation, the commission established numerous gross violations on the part of other employees of the organization, allowed the court to conclude that there was no causal relationship between the violations on the part of the plaintiff and the ensuing consequences, in connection with which the dismissal of the plaintiff on the indicated grounds was considered unlawful .

2. Dismissal of the plaintiff under sub. "d" p. 6 h. 1 cm. 81 of the Labor Code of the Russian Federation is illegal, since the plaintiff's violation of labor protection rules, indicated in the conclusion on the investigation of an industrial accident, is not in a causal relationship with the accident that caused grievous harm health.

Citizen P. filed a lawsuit against OOO L. on changing the wording of the reason for his dismissal to dismissal of his own free will in accordance with Art. 80 of the Labor Code of the Russian Federation, on changing the date of his dismissal. In support of the claim, he indicated that his dismissal with the wording “dismissed due to violation of labor protection requirements, which entailed grave consequences (subparagraph “e”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation) does not correspond to the circumstances, prior to his dismissal.

As established by the court, P. was in an employment relationship with LLC "L." To the General Director of LLC "L." They were sent a letter of resignation of their own free will.

Director General of LLC "L." in relation to P., an order was issued to apply a disciplinary sanction in the form of dismissal under subp. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation in connection with the violation by the plaintiff of clauses 3.8, 3.9 of the job description, as well as clause 1 of Art. 20 of the Federal Law of December 10, 1995 No. 196-FZ "On Security traffic”, expressed in violation of labor protection requirements, which entailed grave consequences. The basis for the dismissal was a memo by E., an explanatory note by P. The plaintiff was not acquainted with this order due to the impossibility of contacting him, about which an appropriate act was drawn up.

On the same day, the employment contract with P. was terminated on the grounds provided by go, "d" and. 6 h. 1 tbsp. 81 of the Labor Code of the Russian Federation - in connection with a single gross violation by an employee of his duties.

On the fact of an accident that occurred at the site of LLC "L." A committee was set up to investigate the incident. According to the conclusion on the investigation of the group accident, P., B. - the foreman of loading and unloading operations, and G. - the crane operator were recognized as responsible for the violations of legislative and other regulatory legal and local regulations that caused the accident. Guilt 11. in the accident that occurred is the failure to comply with the job description (clauses 3.8, 3.9), as well as violation of clause 1 of Art. 20 of the Federal Law "On Road Safety", expressed in the admission without passing a pre-trip medical examination to the control of an automobile crane by the driver G. in a state of intoxication.

From a literal interpretation of sub. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it follows that when terminating an employment contract on this basis, three conditions must be present simultaneously: unlawful behavior of the employee (violation of specific labor protection requirements); the presence of a harmful result (accident, accident, catastrophe) or a real threat of its occurrence; causal relationship between these two conditions. The absence of at least one of the provided elements excludes dismissal on the specified basis.

In resolving the dispute and satisfying the plaintiff's claims, the court rightly proceeded from the fact that the dismissal of the plaintiff under sub. "e" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation is illegal, since the plaintiff's violation of the rules for protecting the pile, indicated in the conclusion on the investigation of the accident at work, is not in a causal relationship with the accident that caused grievous bodily harm.

The judicial collegium finds this conclusion of the court of first instance correct, motivated, confirmed by the evidence available in the case, to which the court gave a proper legal assessment.

In such circumstances, the court correctly considered the dismissal of the plaintiff in accordance with div, "d" n. b h. 1 tbsp. 81 of the Labor Code of the Russian Federation illegal, changing the wording of the basis for his dismissal to dismissal of his own free will.

Dismissal for committing guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation)

According to paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, the courts must bear in mind that the termination of an employment contract with an employee under paragraph 7, part 1 of Art. 81 of the Code in connection with the loss of confidence is possible only in relation to employees directly servicing monetary or commodity values ​​​​(reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer grounds for loss of confidence in them.

If the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, these employees may be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work.

When resolving disputes arising in connection with the application of disciplinary measures against employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the case when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the fulfillment of obligations for the maintenance of material assets is the main labor function of the employee, which is agreed upon when hiring, and in accordance with the current legislation, an agreement on full liability can be concluded with him, which the employee knew about, refusal to conclude such an agreement should be considered as non-fulfillment of labor duties with all the ensuing consequences (paragraph 36 of the said resolution).

Clause 7, Part 1, Art. 81 of the Labor Code of the Russian Federation, which establishes the possibility of dismissal due to loss of confidence, was the subject of consideration in the Constitutional Court of the Russian Federation. According to the applicant, this norm contradicts the Constitution of the Russian Federation, as it “allows the employer to independently establish the guilt of the employee and dismiss the employee without establishing his guilt by a court verdict.”

Refusing to consider, the Constitutional Court of the Russian Federation determined that the employer is obliged to conduct an audit to determine the amount of damage caused and the reasons for its occurrence. The specified circumstance, established by the employer, including during the audit, may serve as a basis for terminating an employment contract with an employee directly servicing cash or commodity values, according to clause 7

Part 1 Art. 81 of the Labor Code of the Russian Federation, which is one of the ways to protect the violated rights of the employer. Upon dismissal under the specified paragraph, the primary reason will be precisely the commission of guilty actions by the employee, and not solely the loss of confidence on the part of the employer.

From judicial practice

1. Considering, that the provision of fake cash receipts for fuels and lubricants (POL) was carried out by the plaintiff as part of the execution of a civil law vehicle lease agreement, the panel of judges considers, that the grounds for the dismissal of H. from work under paragraph 7 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the defendant did not have.

Citizen N. was dismissed from her position on the grounds provided for by Art. 7 h. 1 tbsp. 81 of the Labor Code of the Russian Federation. The basis for the loss of confidence was the facts set forth in the internal audit report, according to which N. submitted to the accounting department of CJSC P. to confirm the expenses for fuel and lubricants. fake cash receipts.

Citizen N. filed a lawsuit against CJSC P. on the recognition of illegal orders of the administration, reinstatement at work, recovery of wages for the time of forced absenteeism. In support of the claims, she referred to the fact that the obligation to submit cash receipts for fuel and lubricants arose for her not due to the performance of labor duties under an employment contract, but due to civil law obligations arising from the rental agreement for a vehicle with a crew.

Making a decision on the stated requirements, the court proceeded from the fact that the presentation of counterfeit cash receipts for fuel and lubricants was made by the plaintiff as part of the report on the expenses for fuel and lubricants reimbursed by the defendant to the plaintiff in connection with the commercial lease of her car. Considering that these legal relations are regulated by the norms of the Civil Code of the Russian Federation, the court concluded that the defendant had no grounds for dismissing the plaintiff as an employee under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The arguments of the appeal that the vehicle rental agreement was concluded with the plaintiff in order to fulfill his labor duties at the place of work and should be considered within the framework of labor relations, cannot be taken into account for the cancellation of the court's decision, taking into account the following.

There is no indication in the employment contract that N. is hired on the condition that he performs his job duties while using his personal car. At the same time, the lease agreement for a vehicle with a crew does not contain an indication that the vehicle belonging to the plaintiff is rented for the purpose of fulfilling her duties as an employee under an employment contract.

It does not follow from a literal interpretation of a vehicle rental agreement with a crew that when concluding said agreement there was a common will of the parties for the actual emergence of labor, and not civil law relations.

The relationship between the parties as an employee and an employer, including the use of an employee’s personal car, could be regulated within the framework of an employment contract - in the form of the inclusion of relevant conditions in the employment contract or in the form additional agreement to an employment contract. However, in this case this was not done. Therefore, to the contentious relationship on the use of a personal car by the plaintiff while working for the defendant, the provisions of Art. 168.1 and 188 of the Labor Code of the Russian Federation cannot be applied.

In the actual circumstances of the present case, the court of first instance reasonably came to the conclusion that civil law relations arose between the parties regarding the rental of a vehicle with a crew, regulated by the norms of civil law.

The materials of the case do not contain evidence of the commission of any offenses by the plaintiff under the employment contract.

In accordance with clauses 1.4, 3.3 of the vehicle lease agreement, the costs of paying for fuel used for the purposes of commercial operation are borne by the lessee in accordance with the waybills and within the limits of the fuel and lubricants cost reimbursement rates approved by the order of the enterprise.

Considering that the submission of counterfeit cash receipts for fuel and lubricants was carried out by the plaintiff as part of the execution of a civil law vehicle lease agreement, as well as the lack of evidence of a mercenary offense committed by the plaintiff, the panel of judges believes that there are grounds for N.'s dismissal from work under paragraph 7 part 1 Art. 81 of the Labor Code of the Russian Federation, the defendant did not have 1 .

2. The court came to the conclusion that, that the plaintiff is not an employee, directly serving monetary or commodity values, in connection with which he could not be dismissed under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The applicant applied to the court with a claim. In support of his claims, he indicated that he worked for the defendant as a driver, was fired under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the loss of confidence. The dismissal is illegal. During the work, there were no claims to the integrity and safety of the transported goods. He did not violate the assigned duties, he did not allow embezzlement and shortages of entrusted material assets.

The court concluded that the plaintiff did not belong to the number of employees directly serving monetary or commodity values, therefore, he could not be dismissed under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation in connection with the loss of confidence in him by the employer.

As established by the trial court and seen from the case file, the plaintiff was hired as a driver. An agreement was also concluded with him on the full individual liability of the material values ​​transferred to him.

Evidence that the range of his duties included the maintenance of monetary or commodity values ​​(reception, storage, transportation, distribution, etc.) was not presented to the court by the defendant.

According to the tariff-qualification characteristics, the driver of the car controls the vehicles and maintains their functioning; elimination of minor malfunctions that have arisen during operation that do not require disassembly of the mechanisms. The duties of a truck driver also include the supply of a vehicle for loading and unloading cargo, monitoring loading, placing and securing cargo in the car body.

The reference to the conclusion of an agreement on full material liability is reasonably not taken into account, since, as the district court correctly established, the position of the driver is not included in the List of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective ( brigade) liability, approved by the Decree of the Ministry of Labor of Russia dated December 31, 2002 No. 85.

In addition, the defendant did not provide admissible and sufficient evidence confirming the commission of guilty actions by the plaintiff, which gave the employer grounds for losing confidence in him.

The court found that the inconsistencies in the waybills arose through the fault of the employer, who did not provide the proper conditions for fixing reliable information in the waybills on the basis of objective metering devices; this was also due to the lack of control on the part of the officials responsible for filling out the waybills.

There were no legal grounds for imposing liability on the plaintiff for the overexpenditure of fuel and lubricants at the warehouse, since the plaintiff was not an employee of the said warehouse and did not carry out vacation or accounting for inventory items.

Under such circumstances, the employer had no legal grounds to hold the plaintiff responsible for the alleged excessive consumption of diesel fuel, the formation of excess fuel and lubricants in the warehouse, and even more so, to apply a disciplinary measure in the form of dismissal.

Thus, the court rightfully reinstated the plaintiff in his position, recovering the average earnings for the time of forced absenteeism and compensation for non-pecuniary damage.

3. Loss of trust is possible not only for the abuses committed by the employee, but also for his negligent attitude to his labor duties, the presence of a selfish component is not mandatory.

The court established that the plaintiff worked as a collector of the department of collection and transportation of valuables of the operational office of the cash collection center.

In accordance with the order of the bank, a disciplinary sanction was applied to the plaintiff in the form of dismissal under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation, with which the plaintiff got acquainted.

The fact that the plaintiff committed a disciplinary offense was discovered by the employer after official investigation and drawing up an act of an internal investigation into the loss of a safe box with cash in the amount of 158 thousand rubles.

The court established that, by virtue of his labor duties, the plaintiff, working as a collector, was a financially responsible person with whom the employer concluded an agreement on full liability for ensuring the safety of the property entrusted to him.

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.

Loss of trust is possible not only for the abuses committed by the employee, but also for his negligent attitude to his labor duties, the presence of a selfish component is not mandatory.

As follows from the case file, the fact of the loss of a safe package with cash in the amount of 158 thousand rubles. the plaintiff did not dispute. Violation by the plaintiff of the scheme for carrying out collection operations is confirmed by the act of the internal investigation.

In this regard, the judicial board sees no grounds for canceling the decision of the court of first instance on the grounds of the appeal.

4. The court concluded that it was not proved that the plaintiff had committed guilty actions that would give the employer grounds for losing confidence in him and dismissal under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

In accordance with the order individual entrepreneur X. sales assistant D. was dismissed under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The basis for issuing an order to dismiss the plaintiff is a memorandum from a specialist in the control and audit department (KRO), an act on the results of the commission's work, but the fact of a shortage.

Based on the loss of confidence, employees who have committed intentionally or through negligence actions that had or could have harmful consequences, i.e. caused or could cause property damage, and when there are specific facts, documented, confirming the impossibility of trusting the employee of value.

As follows from the case file, by order of individual entrepreneur X., the store establishes full collective (brigade) liability of store employees, including sales assistant D., for receiving, processing, storing, accounting, dispensing (issuing) products.

By order of individual entrepreneur X., an inventory commission was appointed and a commission was created to conduct an internal investigation to establish the reasons for the shortage of inventory items and the perpetrators. From the act on the results of the work of the commission, it follows that the employee of the control and audit department and the territorial manager revealed a shortage that arose as a result of theft by employees of this unit. A decision was made to recover the shortage from each employee and to terminate employment contracts with them, including D.

After analyzing the evidence presented in the case, the court came to the conclusion that there were a number of violations that did not allow us to state with certainty the shortage and the guilt of the plaintiff in its occurrence.

From the documents submitted by the defendant it is impossible to determine the number of materially responsible persons participating in the inventory, and the persons who directly carried out the recalculation of the goods (checked the actual availability of the property reflected in the inventory list), there are no receipts from the members of the team that all valuables before starting inventories are credited.

In addition, the defendant did not provide evidence of the transfer of valuables and property to the team (team) at the time of the conclusion of the contract on liability. From the testimony of the witness and the explanations of the plaintiff, it was established that a complete inventory of the valuables transferred for safekeeping at the time of the conclusion of the agreement on full collective (team) liability was not carried out, these arguments were not refuted.

At the time of the conclusion of the agreement on collective liability, the plaintiff D. was on leave to care for the child, in fact, she did not work in the store, this circumstance was confirmed by the order to grant D. leave to care for the child.

To justify the legality of D.'s dismissal under paragraph 7 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the defendant must provide evidence indicating not only that the employee committed a disciplinary offense, but also that, when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed were taken into account (part 5 of article 192 of the Labor Code of the Russian Federation ), as well as the previous behavior of the employee, his attitude to work.

It is noteworthy that D., after returning from leave to care for a child, worked for a little more than two months until the day of the inventory, at which a shortage was revealed, which indicates a clear inconsistency of the disciplinary sanction applied to D. in the form of dismissal of the severity of the misconduct.

Based on the analysis of the current legislation, the basis for the loss of trust should be the specific fact that the employee committed guilty acts, confirmed by some written evidence; The inventory documents presented by the defendant, in view of the foregoing, indisputably do not confirm the plaintiff's guilty actions.

In addition, according to the court, the employer violated the procedure for bringing the plaintiff to disciplinary liability. From D., a written explanation about the application of a disciplinary sanction to her in the form of dismissal was not selected.

Thus, the court concludes that it was not proved that the plaintiff committed guilty actions that would give the employer grounds for losing confidence in D. and dismissing her under paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation, and on violation by the employer of the dismissal procedure. See: Appellate ruling of the Judicial Collegium in Civil Cases of the Supreme Court of the Republic of Dagestan dated April 27, 2016 in case No. 33-1600/2016. Regarding the termination of the employment contract "under Art. 80 of the Labor Code of the Russian Federation "an inaccuracy was made. You should point to and. 3 hours 1 tbsp. 77 of the Labor Code of the Russian Federation. See: Ruling of the Constitutional Court of the Russian Federation dated November 20, 2014 No. 2578-0.

See: Appellate ruling of the Voronezh regional court dated February 12, 2015 No. 33-570.

See: Appellate ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Republic of Dagestan dated May 6, 2016 No. 33-1889/2016.

See: Decision of the Chusovoy City Court Perm Territory dated May 5, 2016 but case No. 2-736/16.