The reasons for termination of the employment contract at the initiative of the employer are contained in Art. 81 of the Labor Code of the Russian Federation.
We list the main ones:
upon liquidation of the organization;
if the employee does not correspond to the position due to insufficient qualifications
if a citizen refuses to work without good reason;
in case of absenteeism, theft, appearance at the workplace in a state of intoxication, etc.;
in case of disclosure trade secret;
when providing false documents for employment, etc.
the person is introduced to the order.
The order indicates the date of dismissal of the employee. On this day, he is issued a work book with an entry in it indicating the grounds for termination of the employment contract at the initiative of the employer.
Also, on the day of dismissal, a calculation is made (salary is paid for the days worked and). If the contract provided additional payments employee when leaving the organization, in which case they may not be paid.
Sometimes, not wanting to spoil the employee's book, the manager may offer him to write a letter of resignation for own will. For example, if a citizen has committed a misdemeanor and the manager has sufficient evidence, or the employee does not correspond to his position and there is a conclusion attestation commission confirming this. If the citizen refuses, the director will have to make an entry in the book indicating the real reason for the dismissal.
Dismissal in case of non-compliance of the employee with the position held
Termination of an employment contract at the initiative of the employer is allowed in a situation where the employee has not committed any misconduct. This can happen in the following cases:
after that, a lack of knowledge was revealed that was necessary for working in the position held (clause 3 of article 81 of the Labor Code of the Russian Federation);
if the state of health of the employee does not allow him to work in the profession;
the company does not free post corresponding to his qualifications.
At the same time, grounds are needed that could confirm the insufficient level of qualifications (decision of the commission) or the unsatisfactory state of health of a citizen ( medical document confirming the disease). Only if it is present, the dismissal will be lawful.
The law regulates in detail the termination of an employment contract at the initiative of the employer. The fact is that it is in this matter that the employee is the least protected, and the field of possible abuse for the employer is wide, as in no other area of labor relations. Therefore, the intervention of the law in this matter is quite justified.
Dismissal - strictly according to the law
The employer and the employee are parties to an employment contract, that is, an agreement of the parties on the establishment of labor relations between them.
The right of the employer to conclude, amend and terminate (or terminate, which is the same thing) employment contracts in the manner and under the conditions established by the Labor Code of the Russian Federation is enshrined in its Art. 22.
It corresponds to the same right of the employee (Article 21 of the Labor Code).
This means that the employer cannot arbitrarily dismiss an employee on his own initiative, there must be legal grounds for this. Compliance with the procedure for terminating an employment contract at the initiative of the employer is also necessary condition its legitimacy.
Grounds for dismissal
Dismissal for wrongdoing
The fact of theft, embezzlement or deliberate destruction must be established by a judicial act (sentence, decision), which has entered into force.
The falsity of the document submitted by the employee must be properly established and recorded (for example, by a special examination).
Conditions for terminating an employment contract at the initiative of the employer
Each group of grounds has its own order and procedure for dismissal, enshrined in law. Their non-compliance may lead to the reinstatement of the employee at work and the administrative responsibility of the employer under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation.
But there are also general terms and Conditions: an employee dismissed at the initiative of the employer should not be on vacation or on sick leave at this time (except in cases of liquidation of the organization or termination of the activity of the individual entrepreneur).
The dismissal of an employee during such periods is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation. Neglecting this rule can also cost the employer dearly.
All the grounds for termination of an employment contract listed in the article at the initiative of the employer apply to both fixed-term and open-ended contracts .
In situations where the employer, for one reason or another, is forced with his employee, he will need to be guided by Article 81 of the Labor Code of the Russian Federation. What are the nuances of such termination in it and what is especially important to consider when terminating an employment contract, let's see further.
Grounds for termination
It is important for both the employer and the employee to understand that the contract can be terminated only if objective grounds arise for this. All these grounds are listed in detail in the legislation. Let's represent the bases in the form of a list:- A single rude refusal to fulfill their official duties(absenteeism, committing guilty acts in the workplace, appearing in a state of alcohol intoxication in the service, etc.).
- Circumstances in which the employee ceased to correspond to the position held for objective reasons (health, skill level).
- Loss of trust in an employee in accordance with objective reasons and evidence of guilty actions, if any.
- Circumstances under which an organization or individual is liquidated and forced to stop their professional activities.
- In situations where work is connected in one way or another with educational functions, dismissal may follow the commission of an immoral act.
- A change in the ownership of the company's property.
- Making unreasonable decisions that entailed damage to the enterprise.
- The need to reduce the current staff or the number of employees.
- Providing knowingly false documents or information.
- Direct or indirect repeated refusal of an employee to perform personal duties in accordance with the job description.
If a particular case does not fit any legal option, then the employer will be liable for the fact that the contract was illegally terminated.
Sometimes additional options for terminating an employment contract are prescribed directly in it and are provided to the employee in advance for review.
When do bases fail?
The legislator singles out a separate category of privileged citizens, whom the employer cannot dismiss for one reason or another of the grounds of the Labor Code of the Russian Federation. These categories of citizens include:- Pregnant women. It is possible to dismiss a pregnant woman only in case of liquidation of the enterprise or termination of activities individual entrepreneur.
- Single mothers with a disabled child under the age of 18 or with a young child under the age of 14. A similar rule applies to other persons (guardian, father) who alone raise these categories of children.
- Women who have a child under the age of 3 years.
- In circumstances where only one parent in the family has a working status, while the family has 3 or more young children, or the family has a disabled child under 18 years of age.
It is necessary to take into account not only the peculiarities of terminating the TD with these categories of citizens, but also certain guarantees and payments due to them in case of dismissal.
Fixed-term employment contract
As a rule, a fixed-term employment contract is concluded for a fixed period - seasonal work, replacement of another employee, work for certain period etc. When does an employer terminate a fixed-term employment contract?- When performing seasonal work, the contract is terminated at the end of the season agreed in advance.
- If a person was hired to replace a permanent employee for the period of his absence, then the contract is terminated when the permanent employee returns to work.
- If the work was scheduled for a specific period (for example, 6 months), then the contract is terminated after this period.
The procedure for terminating the contract
It is not so easy for an employer to terminate a contract. To do this, it is necessary to follow all the steps of the algorithm fixed in the legislation, as well as draw up all the relevant documents so that the procedure goes to the fullest extent of the law. Let's consider all the points in order:- It all starts with a certain misconduct that is committed by an employee. This misconduct must be recorded and supported by evidence. If the misconduct took place, but there is no evidence of this, then the dismissal may be considered illegal. Also, dismissal may occur through no fault of the employee. Then the procedure begins with the stage when the employer identifies the appropriate section of Article 81 of the Labor Code of the Russian Federation for a particular case. You can find legal grounds for dismissal.
- An order of disposal is issued by the employer in the form No. T-8 in two copies.
The employer keeps one copy for archive documentation, and gives the other to the dismissed employee. Please note that after registration, both parties need to sign an agreement. This means that the worker without fail must be familiar with the order of dismissal.
- Sometimes there are cases when an employee refuses to read the dismissal order. This is not sufficient reason not to fire him. However, this fact must be fixed by an additional item on the order (or order).
- Documents for dismissal are drawn up:
Note-calculation T-61;
Making an entry in the employee's personal card in the form T-2, section 11;
An example of filling out section XI of an employee's personal card upon dismissal at the initiative of the employer in .xls format (Microsoft Excel)
- record in work book about dismissal. It indicates on what basis the employee is dismissed.Formulation of dismissal records at the initiative of the employer, indicating the articles of the Labor Code in .docx (Word) format
- The last day of work of the employee is considered to be the day of termination of the contract. On this day, the employer undertakes to give the employee his work book in his hands, as well as to make the necessary calculation, if necessary. If for one reason or another it is impossible to do this directly, then the appropriate documents are sent by mail.
In case of disagreement with the dismissal, the employee may turn to law enforcement agencies, but only in those circumstances where he has sufficient grounds and evidence that the dismissal was illegal.
Examples of dismissal by an employer
Consider a number of cases in which, at the initiative of the employer, the employment contract was terminated, while the employee’s misconduct and circumstances beyond his control served as the grounds:- Ivleva K.S. was accepted for a probationary period as a secretary at Kolos LLC. After probationary period non-compliance with the requirements of the previously concluded employment contract was revealed. On the basis of this, the TD was terminated in accordance with paragraph 14 of the first part of 81 articles of the Labor Code of the Russian Federation.
- In connection with the reduction of staff at the enterprise OJSC "Sosnovy Bor", at the initiative of the employer, the assistant accountant Nikolaev N.G., the driver of the economic department Stepnov PS, the deputy programmer Martynova A.M. were fired.
ST 81 of the Labor Code of the Russian Federation.
The employment contract may be terminated by the employer in the following cases:
1) liquidation of the organization or termination of activity by an individual entrepreneur;
2) reduction in the number or staff of employees of the organization, individual entrepreneur;
3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;
4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
6) a single gross violation of labor duties by an employee:
a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );
b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, drugs 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, including the disclosure of personal data of another employee;
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 judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;
7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse (wife) and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of "foreign financial instruments" is used in this Code in the meaning defined by the Federal Law of May 7, 2013 N 79-FZ "On the prohibition of certain categories of persons to open and have accounts (deposits), keep cash cash and values in foreign banks located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments";
8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) submission by the employee to the employer of false documents when concluding an employment contract;
12) has become invalid;
13) provided for by the employment contract with the head of the organization, members of the collegial executive body organizations;
14) in other cases established by this Code and other federal laws.
The procedure for conducting attestation (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of employees.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower paying job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided collective agreement agreements, employment contracts.
In the event of termination of the activities of a branch, representative office or other separate structural unit organization located in another locality, the termination of employment contracts with employees of this unit is carried out according to the rules provided for in cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.
Information about applying to an employee disciplinary action in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article, are included by the employer in the register of persons dismissed due to loss of confidence, provided for by Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption".
Commentary on Art. 81 of the Labor Code of the Russian Federation
1. Termination of the employment contract at the initiative of the employer general rule possible only on grounds, an exhaustive list of which is established by law, and only subject to the established procedure for dismissal. An employee dismissed without a legal basis or in violation of the procedure for dismissal is subject to reinstatement in the previous job.
As grounds for the dismissal of an employee at the initiative of the employer, the legislator formulates three groups of reasons: 1) the guilty actions of the employee; 2) reasons related to the personality of the employee, but not the result of his guilty actions; 3) circumstances that do not depend on the personality of the employee.
When formulating the grounds for terminating an employment contract at the initiative of the employer, the legislator takes into account both the personality of the employee and the characteristics of work due to his labor function. In this regard, there are general and special grounds for termination of an employment contract at the initiative of the employer. The former can be applied upon dismissal of any employee, the latter - only employees of certain categories (for example, heads of organizations, persons, labor activity associated with the maintenance of monetary or commodity values). General grounds for termination of an employment contract at the initiative of the employer are formulated in the commented article 81 of the Labor Code of the Russian Federation, additional (special) - partly in the commented article, partly - in the articles of the Labor Code of the Russian Federation regulating the legal status of certain categories of workers and employers, as well as in other federal laws.
The presence of grounds for dismissal as a general rule gives the employer the right, but does not oblige him to terminate the employment contract. Therefore, when circumstances arise that give rise to this right of the employer, the latter may either not change the content of the employment contract with the employee at all, limiting himself to applying measures of an organizational and legal nature to him, or, if the specified circumstance excludes the possibility of the employee retaining his position or work stipulated by the employment contract - transfer the employee with his consent to another job. In some cases, the employer has the right to dismiss the employee if the transfer to another job is not possible or the employee refuses to transfer.
2. Among the grounds for dismissal of an employee at the initiative of the employer, paragraph 1 of the commented article calls the liquidation of an organization or the termination of activities by an individual entrepreneur.
The liquidation of an organization (legal entity) is carried out on the grounds and in the manner determined by civil law. The liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons (clause 1, article 61 of the Civil Code of the Russian Federation).
With regard to the termination of the employer's activities - individual, then in this case we are talking about the termination of the activity of this person as an individual entrepreneur - in the sense in which this concept is interpreted by the Labor Code of the Russian Federation (see). The death of an employer - an individual is an independent basis for terminating an employment contract ().
Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code of the Russian Federation are special subjects of law acting to achieve goals determined by law, including the production of profit, and, accordingly, are obliged to carry out state registration (licensing) of their activities in one form or another. For example, subject to state registration entrepreneurial activity citizen as an individual entrepreneur or head farming(Article 23 of the Civil Code of the Russian Federation); a special procedure is provided for by law for acquiring the status of a lawyer (see Federal Law No. 63-FZ of May 31, 2002 "On Advocacy and the Bar in the Russian Federation"); on the basis of a license issued in accordance with the established procedure, the activities of notaries are carried out (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11, 1998 N 4462-1). Accordingly, the termination (or suspension) of the activities of such employers can serve as an independent basis for the termination of an employment contract with employees in accordance with paragraph 1 of the commented article.
If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under paragraph 1 of the commented article, in particular, when the activity of the employer - an individual is terminated on the basis of his own decision, as a result of declaring him insolvent (bankrupt ) by a court decision (clause 1, article 25 of the Civil Code of the Russian Federation), due to the expiration of the certificate of state registration, refusal to renew a license for certain types of activities (paragraph 3, clause 28 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 . N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").
3. Reducing the number or staff of employees of an organization, an individual entrepreneur as a basis for terminating an employment contract is provided for in paragraph 2 of the commented article.
The number of employees is determined accordingly by the applicable employer technological processes and needs Maintenance his activities. The staff is a combination of managerial and administrative positions different levels as well as specialists. The staff is determined, as a rule, by the head through the publication of the staffing table.
When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership ().
When dismissing due to redundancy, it is necessary to take into account the preemptive right of certain categories of workers to remain at work (see). At the same time, since, by virtue of part 4 of the commented article, in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of these structural units is carried out according to the rules provided for in cases of liquidation of an organization, the rule Art. 179 of the Labor Code of the Russian Federation does not apply.
4. By virtue of clause 3 of the commented article 81 of the Labor Code of the Russian Federation, the inconsistency of the employee with the position held or the work performed may be the result of insufficient qualifications. The insufficient level of qualification of the employee must be confirmed by the results of certification.
The certification procedure implies compliance with the following rules: a) availability regulatory framework(the relevant regulatory legal act of the state or local government and (or) local regulatory act on attestation); b) implementation of the certification procedure by a commission established in the manner established by the relevant act; c) the universal nature of certification (certification is subject not to individual, but to all (with exceptions determined in the normative manner) employees of a certain category); d) the frequency in the certification (employees are subject to certification regularly, as a rule, after a certain period after the previous certification, established in the regulatory order).
The conclusion of the attestation commission that the employee, in terms of his actual qualifications, does not correspond to the position held or the work performed, gives the employer the right to terminate the employment contract with this employee.
Judicial practice proceeds from the inadmissibility of terminating an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to the short length of service, as well as on the grounds of the lack of special education, if it is not, by virtue of law, prerequisite when concluding an employment contract.
5. The basis for dismissal at the initiative of the employer is the repeated failure by the employee to fulfill his labor duties without good reason (paragraph 5 of the commented article).
Violation of labor discipline is the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, rules of internal work schedule, job descriptions, regulations, orders of the employer, technical rules, etc.).
Such violations include:
a) the absence of an employee without good reason at work or workplace. At the same time, it must be borne in mind that if in an employment contract concluded with an employee, or in a local normative act employer (order, schedule, etc.) no specific workplace of this employee, then in the event of a dispute on the issue of where the employee is obliged to be in the performance of his labor duties, it should be assumed that by virtue of the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;
b) the employee’s refusal without good reason to perform labor duties due to a change in the established procedure for labor standards (see also the commentary to it), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the internal rules in force in the organization work schedule (see). At the same time, the refusal to continue work in connection with a change in the terms of the employment contract due to changes in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for terminating the employment contract in compliance with the procedure provided for;
c) refusal or evasion without valid reasons from a medical examination of employees of certain professions, as well as the refusal of an employee to pass working time special training and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work (clause 35 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
When resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (), in the case when it was not concluded simultaneously with the employment contract, clause 36 of the said Resolution The Plenum of the RF Armed Forces proposes 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.
If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that, due to a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer is obliged to offer him another job, and in its absence or the employee refuses the offered job, the employment contract is terminated with him in accordance with.
An employee's refusal (regardless of the reason) to comply with the employer's order to return to work before the end of the vacation cannot be considered a violation of labor discipline (paragraph 37 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
Dismissal for repeated non-performance by an employee of labor duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated non-performance by the employee without good reason of labor duties was not removed and not repaid (paragraph 1, clause 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 .N 2). The list of disciplinary sanctions is established by law (see to it).
Within the meaning of the term "repeated" (i.e. more than one) non-fulfillment of labor duties may also occur in the event of repeated non-fulfillment by the employee without good reason of the duties assigned to him. Considering that, by virtue of the law, a disciplinary sanction is valid for one year, i.e. 12 months, if the employer did not remove him from the employee ahead of schedule (see to it), the employer’s right to terminate the employment contract arises if the employee again violated labor discipline within 12 months after the application of a disciplinary sanction to him. At the same time, recognizing non-performance of labor duties as "repeated", one should take into account not only the repetition of the violation, but the nature and severity of the misconduct itself, the previous behavior of the employee and other circumstances.
If an employee repeatedly violated labor discipline, but no disciplinary sanction was applied to him, then he cannot be dismissed under paragraph 5 of the commented article.
Violation of labor discipline is recognized as repeated if, despite the penalty, the unlawful misconduct of the employee continues. In this case, it is allowed to apply a new penalty to him, including dismissal under paragraph 5 of the commented article (paragraph 2, paragraph 33 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).
The employer has the right to apply a disciplinary sanction to the employee even when the latter, before committing the misconduct, filed an application for termination of the employment contract on his own initiative, since contract of employment in this case, it is terminated only after the expiration of the notice period for dismissal (paragraph 3, clause 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
The filing by an employee of an application for dismissal of his own free will after the commission of an act that gives the employer grounds for applying a disciplinary sanction to him, including dismissal, cannot be considered forced (see to it).
Actions of an employee that are not related to his job duties should not be considered as a disciplinary offense. It is impossible to dismiss an employee under paragraph 5 of the commented article, for example, for misbehavior in everyday life. Termination of an employment contract on this basis is specified in the norms of the Labor Code of the Russian Federation, which regulate the legal status teaching staff(cm. ).
6. Single gross violation employee's labor duties (clause 6 of the commented article) is a reason sufficient to terminate the employment contract with the employee, regardless of whether he had previously received disciplinary sanctions.
Gross violations are:
1) absenteeism (subparagraph "a", paragraph 6 of the commented article). Absenteeism refers to absence from work without good reason throughout the working day (shift). Absence of an employee at the workplace without good reason for more than four hours in a row during a working day (shift) is equated to absenteeism. The workplace in this case means not only the workplace assigned to the employee, but also the one at which the employee was obliged to be by virtue of the instructions of the relevant supervisor of the employee (on the concept of the workplace, see Article 209 of the Labor Code of the Russian Federation and commentary to it).
As follows from paragraph 39 of the Decree of the Plenum of the RF Armed Forces of March 17, 2004 N 2, dismissal on the indicated basis, in particular, can be carried out:
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) for finding an employee without good reason for more than four hours in a row during the working day outside the workplace;
c) for leaving 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 (see Art.);
d) for 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 (see art., 80, and commentary thereto);
e) for unauthorized use of days off, as well as for unauthorized leave on vacation (basic, additional). The use of rest days by an employee is not absenteeism in the event that the employer, in violation of the obligation stipulated by law, refused to provide them and the time the employee used such days did not depend on the employer’s discretion (for example, refusing to provide an employee who is a donor in accordance with the rest day immediately after each day of donating blood and its components).
When a court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to a refusal to start it, the employer is obliged to provide evidence indicating the legality of the transfer (see art., and commentary to them). 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 (paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and on the recovery of 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: 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 (paragraph 41 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2);
2) appearing at work in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b", paragraph 6 of the commented article).
If an employee is dismissed due to the fact that his actions created a real threat of serious consequences, the following must be determined: a) those socially significant interests that were endangered as a result of the employee's illegal actions; b) circumstances that prevented the onset of grave consequences. The latter may be accidental factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.
The employer must establish the guilt of the employee. It is expressed in the fact that the employee: a) was aware or could and should have been aware of the unlawful nature of his actions related to the violation of labor protection requirements; b) foresaw or could and should have foreseen the likelihood of grave consequences. If the employee could not and should not have foreseen the onset of grave consequences, he cannot be dismissed on the grounds under consideration, which does not exclude the application of other measures of disciplinary liability for violation of labor protection rules.
In the absence of the employee’s fault, bringing him to responsibility and terminating the employment contract under sub. "e" p. 6 of the commented article is excluded. Particular cases of this kind are the actions of an employee in a state of emergency or actions aimed at fulfilling the order of a competent manager. In the latter case, the liability of the employee is excluded, provided that he warned his immediate or superior manager about the possibility of a situation that threatens the rights and interests protected by law (see also the commentary to it).
Since the law connects the actions of an employee with the onset (or the possibility of onset) of grave consequences, the existence of grounds for terminating an employment contract with him can be confirmed by a court verdict that has entered into force.
Along with dismissal on the grounds under consideration, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Code of Administrative Offenses of Russia).
The list of cases that are a gross violation of their duties by an employee is exhaustive and is not subject to broad interpretation (paragraph 38 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). Termination of an employment contract for any of the reasons specified in this paragraph of the commented article is carried out in the manner established for the application of disciplinary sanctions (see to it).
7. The grounds listed in paragraphs 1 - 3, 5 and 6 of the commented article are among the general grounds for termination of an employment contract at the initiative of the employer. Along with them, the commented article contains a list of special grounds (clauses 4, 7 - 13) for the dismissal of workers of certain categories in the presence of special ones arising from the peculiarities legal status these workers, conditions. Most of these grounds assume the presence of guilty actions on the part of the employee.
8. The change of the owner of the property of the organization (clause 4 of the commented article) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.
9. An employee who directly serves monetary or commodity values \u200b\u200bcan be dismissed due to the loss of confidence in him by the employer in case of committing guilty acts (paragraph 7 of the commented article).
Dismissal on the specified grounds is possible only in relation to employees directly serving monetary or commodity values (reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer a reason to lose confidence in him (paragraph 1, clause 45 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2). Such workers, as a general rule, are those who belong to the category of persons bearing the full liability for failure to ensure the safety of monetary or commodity values entrusted to them on the basis of special laws or special written contracts(see article - and commentary to them).
Accountants, accountants, merchandisers, controllers, markers and other employees cannot be dismissed due to loss of confidence, since material assets are not directly entrusted to them.
The loss of confidence on the part of the employer must be based on objective evidence of the employee's guilt in causing material damage. If the fault of the employee is not established, then he cannot be dismissed for reasons of loss of trust, despite the presence of a shortage, damage to the entrusted values, etc.
When the fact of embezzlement, bribery and other mercenary offenses is established, an employee may be dismissed on the basis of loss of confidence even if these actions are not related to his work (paragraph 2, clause 45 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 ).
Termination of an employment contract due to the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and obligations of a property nature, or failure to provide or knowingly provide incomplete or inaccurate information about income , expenses, property and property obligations of their spouse and minor children (clause 7.1 of the commented article 81 of the Labor Code of Russia) is a special case of dismissal of an employee due to loss of confidence in him by the employer.
As in the case of termination of an employment contract with an employee due to the loss of confidence in him by the employer, in accordance with the specified paragraph, it is possible to dismiss only those employees who fill positions and perform work specified in the relevant list, approved in accordance with the procedure established by law. The difference between the commented paragraph and paragraph 7 of the commented article lies in the content of those acts that may serve as a basis for the loss of confidence on the part of the employer, and in the subject composition of the persons who committed such acts.
If, as a general rule, the grounds for the loss of confidence on the part of the employer may be the actions of an employee of a mercenary nature, both related and not related to work (measurement, body kit of the buyer or customer, theft, etc.), then in this case, the basis for the loss of confidence actions that in themselves may not be of a mercenary nature (for example, failure to take measures to eliminate a conflict of interest or failure to provide certain information required by law, or the presentation of distorted information) may serve. In addition, this kind of information concerns not only the employee himself, but also his family members.
On the concept of "conflict of interest", measures necessary and sufficient to resolve this conflict; types and content of information about the property status of the employee and members of his family; the circle of such workers, see Art. , and comments on them.
10. The commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of the commented article 81 of the Labor Code of the Russian Federation) is also a special basis for terminating an employment contract.
On this basis, it is allowed to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational organizations, masters of industrial training, educators of children's institutions. Employees who do not perform educational functions (including heads of organizations, structural divisions) are not subject to dismissal on this basis.
A misdemeanor is considered immoral if it contradicts generally accepted norms of morality, and it does not matter whether it is related to the work performed or not (paragraph 46 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). A misdemeanor of this kind should be considered the use of educational measures that are associated with physical or mental violence against the personality of the student (see). The severity of the misconduct must be assessed on a case-by-case basis by the person making the dismissal or by the labor dispute resolution body.
If guilty actions that give rise to loss of confidence, or an immoral act are committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed (respectively, under paragraphs 7 or 8 of the commented article) subject to compliance the established procedure for the application of disciplinary sanctions (see article 193 of the Labor Code of the Russian Federation and commentary thereto).
Termination of the employment contract under paragraphs 7 and 8 of the commented article can also be made in the case when the guilty actions that give rise to the loss of confidence, or, accordingly, an immoral offense are committed by the employee not at the place of work and not in connection with the performance of his labor duties. Dismissal in this case is not a measure of disciplinary sanction, the application of which is due to the deadlines established by the Labor Code of the Russian Federation, since by virtue of Part 1 of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for non-performance or improper performance by the employee through his fault of the labor duties assigned to him.
By virtue of part 5 of the commented article, dismissal in cases where guilty actions that give rise to a loss of confidence, or, accordingly, an immoral offense is committed outside his place of work or not in connection with the performance of his labor duties, is possible no later than one year from the date the employer discovered the misconduct . The day when the misconduct was discovered should be considered the day when the employer became aware or should have become aware of the fact of the misconduct. Circle of relevant officials the employer must be determined according to the rules established for fixing the day a disciplinary offense was discovered (see article 193 of the Labor Code of the Russian Federation and commentary thereto).
Since the termination of an employment contract in accordance with clause 7.1 of the commented article is a special case of dismissal due to loss of trust, such dismissal is also carried out according to the above rules.
11. The adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant can serve as a basis for terminating the employment contract only if this entailed a violation of the safety of property, its misuse or other damage to the property of the organization (clause 9 of the commented article ).
Termination of an employment contract on this basis is possible if the following conditions are met: economic activity employer; b) the unreasonable decision of the employee actually caused property damage (both positive and in the form of lost profits) to the employer.
When deciding whether the decision was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of making this decision and whether they could have been avoided if another decision was made. If the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (paragraph 2, clause 48 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are beyond the economic goals of the employer as the owner of the property. Grounds for terminating an employment contract with specified employees takes place due to not only the loss or damage to property, but also the loss of part of its value, i.e. depreciation (depreciation).
It does not matter who caused the damage - by the employee himself or by other persons; for dismissal, the fact that the decision taken by the guilty employee provided an opportunity (served as a necessary condition) for causing damage to the employer is sufficient.
12. On the grounds provided for in paragraph 10 of the commented article, an employment contract with a special subject, which in this case is the head of the organization (branch and representative office), as well as his deputies, may be terminated.
In accordance with Art. 55 of the Civil Code of the Russian Federation, representative offices and branches of a legal entity act as separate structural divisions. The representative office is separate subdivision legal entity located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Heads of representative offices and branches are appointed legal entity and act on the basis of his power of attorney.
With the heads of other structural units and their deputies, as well as the chief accountant of the organization, the employment contract under paragraph 10 of the commented article cannot be terminated (paragraph 4, paragraph 49 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
The considered grounds for termination of the employment contract almost completely reproduce the content of paragraph 6 of the commented article. Consequently, the head of an organization (branch, representative office) and his deputies can be dismissed either under paragraph 6 or paragraph 10 of the commented article. In the latter case, the basis for making a decision to terminate the employment contract with the manager may be any violation by him of his labor duties, recognized as gross, including the one in accordance with which the employment contract may be terminated under paragraph 6 of the commented article.
The question of the severity of the disciplinary offense that served as the basis for the dismissal of the employee under paragraph 10 of the commented article is subject to assessment, taking into account all the specific circumstances in which it was committed. Such an assessment is made by a person authorized to carry out dismissal, and in the event of a dispute, by a labor dispute resolution body. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or causing property damage to the organization (paragraphs 2, 3, clause 49 Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).
13. Submission by the employee to the employer of false documents when concluding an employment contract (clause 11 of the commented article) as a basis for termination of the employment contract at the initiative of the employer means that the basis for dismissal is the guilty (intentional) actions of the employee.
Dismissal under paragraph 11 of the commented article is possible only if the employee submits false documents to the employer when concluding an employment contract (for example, when concluding an employment contract, the employee submitted a falsified document on special education). Upon submission to the employer of knowingly false information that prevents the conclusion of an employment contract, dismissal is carried out in accordance with the rules established by Art. 84 of the Labor Code of the Russian Federation.
By virtue of par. 2 p. 51 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2007 N 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents by him, then the employment contract with such an employee is terminated under paragraph 11 of the commented article, and not in accordance with paragraph 11 of Art. 77 of the Labor Code of the Russian Federation.
14. An employment contract with the head of the organization, members of the collegial executive body of the organization may be terminated in cases provided for by the employment contract (clause 13 of the commented article). Thus, the legislator interprets the termination of an employment contract on the grounds established by the employment contract as one of the special cases of dismissal of an employee at the initiative of the employer. In fact, an employment contract with a manager (a member of the collegial executive body of the organization) may provide for cases of termination of the employment contract both at the initiative of the employee and as a result of the occurrence of circumstances that depend neither on the will of the employee nor on the will of the employer.
15. By virtue of clause 14 of the commented article, an employment contract at the initiative of the employer may also be terminated in cases other than those listed in the said article, as established by the Labor Code of the Russian Federation and other federal laws.
16. Among such cases are additional grounds for terminating the employment contract with the head of the organization and a member of its collegial executive body (see also the commentary to them); (see article 288 of the Labor Code of the Russian Federation and commentary thereto), with an employee - a foreign citizen, etc.
17. Termination of an employment contract is considered lawful provided that, in addition to the existence statutory grounds, the employer complied established order termination of an employment contract, as well as guarantees upon dismissal established by law for certain categories of employees (see clause 23 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
The established procedure provides:
a) prohibition of dismissal of certain categories of employees. It is not allowed to dismiss an employee during the period of his temporary disability and while on vacation (part 6 of the commented article); pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother (see also commentary on it) ;
b) a warning about the upcoming dismissal. The specified obligation is assigned to the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction in the number or staff of employees (see also the commentary to it).
Upon termination of the employment contract on the indicated grounds (paragraphs 1 and 2 of the commented article), the employer is warned about the upcoming dismissal by the employer personally against signature at least two months before the dismissal. In case of non-compliance with the term for warning the employee about dismissal, if he is not subject to reinstatement for other reasons, the court changes the date of his dismissal so that the employment contract is terminated after the expiration of the notice period established by law.
The period for which the employment contract is extended due to the postponement of the date of dismissal is payable to the employee based on his average earnings.
When deciding to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees in accordance with paragraph 2 of the commented article, the employer is obliged to notify the trade union body of the primary trade union organization in writing no later than two months, and in case of mass dismissal - no later than than three months before the start of the relevant events (see Article 82 of the Labor Code of the Russian Federation and commentary thereto).
When deciding to liquidate an organization, reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing no later than two months before the start of the relevant events and indicate the position, profession, profession and qualification requirements to them, the terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization's employees can lead to mass dismissal of employees - no later than three months before the start of the relevant activities (clause 2, article 25 of the Law of the Russian Federation dated April 19, 1991 N 1032-1 "On employment in the Russian Federation"). On the concept, criteria and organizational and legal consequences mass layoffs workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary to them;
c) conducting mandatory certification. On the conditions and procedure for conducting certification upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, art. 82 of the Labor Code of the Russian Federation and commentary to it;
d) taking measures for the employment of the released employee. In accordance with part 3 of the commented article, dismissal due to a reduction in the number or staff of employees, as well as inconsistency of the employee with the position held or work performed (clauses 2 and 3 of the commented article) is allowed if it is impossible to transfer the employee with his consent to another job .
The same rule applies to the termination of the employment contract with the rector, vice-rector, dean of the faculty, head of the branch (institute), state or municipal educational organization higher vocational education in connection with reaching the age of 65 years (see to it).
Other work is any other work that the worker is able to perform in accordance with his professional qualifications or health condition. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization, corresponding to the qualifications of the employee, and in the absence of such a job, another vacant lower position available in the organization or lower-paid work that the employee can perform taking into account the above factors. 29 Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 N 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with warning him of the upcoming dismissal. Consent of an employee to perform certain work (replacement vacant position) or his refusal new work(positions) is fixed in writing and certified by the signature of the employee.
The dismissal of employees in the event of termination of the activities of a separate structural unit located in another area is carried out according to the rules provided for in cases of liquidation of the organization. This means that the employer is released from the obligation to employ the released workers in the organization;
e) taking into account the motivated opinion of the elected trade union body. On the grounds for participation and the procedure for taking into account the motivated opinion of the elected trade union body in considering issues related to the termination of an employment contract at the initiative of the employer, see Art. Art. 82, 373 of the Labor Code of the Russian Federation and commentary to them;
f) receipt by the employer of consent to terminate the employment contract with the employee. Representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide dismissal from work (see also the commentary to it).
Representatives of employees, their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (see also the commentary to it).
Heads (their deputies) of elected collegiate bodies of primary trade union organizations who are not released from their main work, during their term of office and within two years after its completion, can be dismissed under paragraphs 2, 3 of the commented article only with the prior consent of the relevant higher elected trade union body (see Art., and commentary to them).