Dismissal of all. An employee has died - what to do, how to fire an employee. Grounds for dismissal of an employee legally

It is not uncommon for such situations at an enterprise when a manager is forced to dismiss an employee under an article. Legally, there is no such thing. According to the Labor Code of the Russian Federation, dismissal under the article occurs regardless of the reasons. The fact is that the use of certain norms as a basis for removing an employee from a position can have an extremely negative impact on his future arrangement. Consider next some labor articles on dismissal.

Downsizing or liquidation

This is one of the reasons why a dismissal can be made. According to article 81, paragraph 4, only the chief accountant, the head and his deputy can be dismissed from office in the event of a change in the owner of the company. This provision does not apply to other (ordinary) specialists of the enterprise. With a reduction in staff, some categories of specialists cannot be dismissed by law. Such "inviolable" employees are those who have a long and uninterrupted experience in this company or are the only breadwinners in the family.

Mismatch

According to the Labor Code, dismissal under article 81, paragraph 3 can be carried out due to incompetence with insufficient qualifications of a specialist, confirmed by the results of certification. A special commission is organized to identify the fact of non-compliance. It usually includes:

Enterprise director.
HR representative.
The immediate supervisor of the subject.

The certification is confirmed by the relevant order. The subject receives a task that does not go beyond his job description and corresponding to his qualifications and specialization. If the task, in the opinion of the specialist, is not drawn up in accordance with his duties, then the results of the certification can be challenged. To do this, within the period established by law, a complaint is written to the labor inspectorate and a claim is filed with the judicial authority. Based on the results of certification, a final report is drawn up.

Transfer to another position

Dismissal under Article 81 is allowed if it is impossible to send a specialist with his written consent to perform other professional tasks at the enterprise. This may be a free, corresponding to the qualifications of an employee, and a lower or less paid position, which can be performed by him taking into account his health. tenant in this case is obliged to offer all vacancies that meet the above requirements and are available to him in a particular locality. The manager is obliged to offer activities that need to be performed in another territory, if this is expressly provided for in a labor, collective or other contract or agreement. The specialist may refuse the options provided. In this case, the manager can fire him.

Dereliction of duty

Dismissal under article 81, paragraph 5 has a number of features. In particular, the manager may dismiss an employee from office if the former repeatedly fails to fulfill his duties, without good reason, and at the same time a disciplinary sanction is imposed on him. The latter is allowed in the form:

reprimand;
remarks;
dismissal.

If there are valid reasons for non-fulfillment of duties, the employee must state them in writing.

Absenteeism and lateness

The specialist may be absent from the site for various reasons. If they are valid, then they must be confirmed by the relevant papers. For example, if an employee falls ill, he provides sick leave. If the reasons for the absence are not valid, then this is called absenteeism. All circumstances due to which the specialist was not at work are stated in writing. The decision to recognize or not recognize them as respectful is made by the leader. If there is a need to be absent from the enterprise, you must first write a corresponding application. It is drawn up in 2 copies, on which the director puts a note "I do not mind." The situation with delays is somewhat more complicated. As a single gross violation, the absence of an employee at the workplace for more than 4 hours in a row during the shift (day) will be considered. Thus, if a specialist is late for an hour, then he cannot be dismissed for this reason. However, in case of repeated such violations, a disciplinary sanction may be imposed with subsequent dismissal.

Waste and theft

These reasons are considered one of the most indisputable of all the circumstances for which dismissal can be carried out under the article of the Labor Code. When committing theft, including petty, of someone else's property (in this case, belonging to the enterprise or other employees), its waste, damage or destruction, established by the decision of the body or officials authorized to deal with cases administrative offenses, or by a court verdict that has entered into force, the specialist is relieved of his position.

As can be seen from the text of the norm, an appropriate act is needed, which, in fact, is the result of an investigation. However, often in practice, management is lenient and offers dismissal on own will. The article in this case will be different. Theft or other serious violation can hit not only the reputation of the employee himself (even if he is innocent), but also the enterprise itself. The consequences in such situations are almost always dismissal. Under what article to release an employee from office - the choice of the head.

Drunkenness

The legislation notes several significant nuances to the dismissal procedure for this reason. In this case, a number of conditions must be met. First of all, the fact of being in a state of intoxication directly at the workplace, and not just drinking alcohol, should be recorded. Also, the reason will act as a significant circumstance only if the employee appeared at the enterprise in this form during the shift. Thirdly, intoxication is considered not only a state after taking alcohol, but also any other state that occurs when using narcotic or other toxic substances.

Loss of trust

For this reason, only financially responsible employees can be fired. These include, in particular, those who have access to money or other valuables of the enterprise, carry out their reception, distribution, storage, etc. Such financially responsible persons may be:

Cashier.
Warehouse Manager.
Accountant.
Economist.
Salesman.
Forwarder and so on.

Loss of trust may be the result of willful misconduct or negligence, a negligent attitude to one's duties. As with absenteeism, the employee's fault must be proven. A memorandum, an act of audit or inventory can confirm the illegal actions of an employee.

Dismissal of one's own free will: article of the Labor Code

This is the most common way to terminate a contract. Every day, many employees voluntarily or on the recommendation of their superiors vacate their positions in this way. However, from a legal point of view, this will always be a dismissal of one's own free will. Article TK No. 80 regulates this procedure. It is worth noting that it does not present such difficulties as in other cases. So, when an employee commits any disciplinary offenses, his guilt must be proven.

If, however, dismissal is made of their own free will, the article of the Labor Code of the Russian Federation requires only to follow the procedure in which the specialist is obliged to notify the employer 2 weeks before the expected date of departure of his intention. In general, the procedure for issuing dismissal from office in such cases is not difficult. As in other situations, an appropriate entry is made in the labor: "Dismissal under Article 80." To start this procedure, the specialist must write an application. The employee has the right not to explain the reasons for his decision. The article of the Labor Code "Dismissal on one's own" does not carry any negative consequences. However, one should be prepared for the fact that when applying for a new position, the head of another enterprise or a representative of the personnel department will be interested in the reasons for this decision.

Design features

The dismissal procedure under the article should be carried out if there are documented grounds. In addition, the mandatory steps that this procedure includes must be observed. There are different stages for each case. However, in any situation, failure to comply with any of them can lead to negative consequences. In particular, the employee may appeal against the misconduct of the employer.

Attestation of fact

If there is any violation, this step is considered mandatory. As mentioned above, for dismissal due to drunkenness, it is necessary to testify intoxication directly in working time and not just the direct fact of drinking alcohol. Theft is proved in 3 stages. In particular, the legislation requires documentary confirmation of the misconduct, as well as a decision or sentence. Only then can a dismissal be made.

Warning

This stage also has its own characteristics, which depend on the reason for which the employee leaves. For example, in case of liquidation of a company with the subsequent dissolution of the state, with any other change in the routine of activities at the enterprise and a reduction in the number of employees, the employer must notify specialists 2 months before the date on which these events will be held. The same conditions are observed when an unqualified employee is dismissed from office or when his certification is unsatisfactory. In the event that an employee commits a violation (failure to perform duties, absenteeism, non-compliance with the company's routine, etc.), the employer is obliged to take a written explanation from him. After that, the manager has a month to apply a disciplinary sanction to the employee if the reasons are regarded by him as disrespectful. Only one penalty may be applied for each violation. If, for example, a remark was issued for absenteeism, then it is impossible to dismiss an employee for the same misconduct.

Introduction to the specialist

This stage consists in notifying the employee and presenting him with an appropriate order. The latter indicates the reason why he is dismissed from office, the basis and date. The legislation requires the obligatory signature of a specialist on this document. In case of refusal to witness the order, an act is drawn up in the presence of witnesses.

Explanatory

The need for this paper has already been mentioned above. The employer must require the employee to provide a written explanation of his conduct. At the same time, the legislation does not oblige the employee to write this paper. He has the right to refuse the employer. Nevertheless, the absence of an explanatory note does not relieve him of disciplinary action. It will be issued in any case 2 days after the submission of the above requirement.

Order

Legislation requires the issuance of two such acts. The first order must confirm the imposition of a penalty in the form of dismissal, and the second acts as a basis for termination employment contract. In most cases, the second edition will suffice. All regulatory documents must be attached to this order. These include, in particular:

Details of acts and reports.
Explanatory (if any).
Other papers that confirm the existence of a valid reason for the release of an employee from his position.

Dismissal of one's own free will (Article 80) provides for a statement of a specialist as a mandatory application. In this case, you do not need to write an explanatory note, you should only notify the employer of your intention in time.

Personal documents

The employer is obliged on the last day of the employee's stay at his enterprise to give the employee his work book. It should be marked accordingly. The record must indicate the reason, as well as the article for which the dismissal was made. If the employee considers it unlawful, he can appeal the decision of the head. To do this, he needs to contact labor inspection, court.

Compensation and payments

They rely depending on what the article of dismissal costs. For child care, in the event of staff reduction, liquidation of the company, on the personal initiative of the employee, the specialist is entitled to certain payments. In particular, he must be paid a salary for the time worked in the month of dismissal. The date of dismissal is the last day of work. The employee is entitled to payment for unused vacation, allowances.

Consequences for the employee

They can be different and depend on the article that is indicated in the work book. This can cause various kinds of problems during the subsequent transfer to another enterprise. Conventionally, the reasons for dismissal are divided into three categories. Each of them has certain consequences. Thus, the articles are distinguished:

associated with the reorganization of the company. If the enterprise complies with the norms of the law, the employee should be assisted in arranging him for a new place. In this case, the consequences for him are only positive.
not listed in the workbook. For example, there may be a note that the employee vacated the position on his own initiative, but in fact his serious misconduct simply did not receive publicity in order to avoid a scandal. In this case, no special negative consequences are expected, but questions will arise when applying for a new enterprise in any case.
Specified in the labor. They can seriously damage your reputation. But in some cases it is better to be honest.

Appeal against the manager's decision

When dismissing an employee without sufficient or legal grounds for this, he has every right to go to court. The authorized body, in turn, at the request of the employee, may issue a decision to recover compensation from the employer for moral damage. If the actions of the manager are recognized as unlawful, the employee has the right to ask for a change in the wording of the reason to "dismissal on one's own". In the same case, if the mark in the document is regarded as invalid, at the request of the employee, he is given a duplicate. At the same time, all entries that were present in it are transferred to the book, with the exception of the one that was recognized as illegal. The procedure for appealing a decision of the head is established in Art. 394. In addition to the court, an employee can apply to the labor inspectorate and initiate an internal audit at the enterprise for compliance with the law. As practice shows, such litigation does not happen so often. Usually dismissal of employees is made without conflicts and noise.

During the crisis years, the leaders of many firms begin to think about the need for reasonable savings, including on the payroll. Often, most of them resort to downsizing. In addition, comes the realization that instead of two or three average-level specialists, it is better to hire one, but qualified. In this light, many workers may be at risk of being fired. Under what circumstances can an employer terminate an employment contract? own initiative?

Grounds for dismissal of an employee legally

Just like that, refuse the services of any of staff members, even under the condition of personal hostility to him, the employer cannot: the interests of employees are protected by the Labor Code of the Russian Federation. However, it is in it that the head of the company can find a suitable article for the dismissal of his staff. In general, legal grounds for dismissal can be:

Violation of labor discipline

Despite the presence of this clause in the labor legislation of the Russian Federation, an employer can dismiss his employee only if the following violations are established:

Staying at the workplace in a state of intoxication;
absenteeism or absence from the workplace for more than 4 hours;
Theft and embezzlement of company property;
Disclosure of trade secrets.

It should be remembered that each violation must be supported by solid evidence. Otherwise, the employee will be able to appeal the decision of the head in court and receive compensation for earnings and moral damage.

Some of the points above have hidden nuances. For example, if the employment contract does not specify working hours or the exact place of work, then it will be extremely difficult to convict an employee of absenteeism.

If the employee submits a certificate of temporary disability, which also affects the hours of his absence from the workplace, then all claims against him become unfounded.

The same violation as being late cannot lead to instant dismissal. Here the procedure for the employer should be as follows:

Establishing the fact of violation and fixing it;
Request for an explanatory note from an employee;
Formation of an order to issue a warning, remark or reprimand to the employee.

If being late is fixed again, then the script is severely reprimanded for the same reason. And only for the third time, the employer can legally fire the employee.

Downsizing

If the company does not close, but only reduces the number of employees, then it turns out that instead of two or three employees, one is enough for it. When determining who exactly will remain to perform labor duties, the employer must be guided by the following rules:

When equivalent positions are eliminated, a more qualified employee remains in the company;
With equal qualifications, preference is given to single mothers, pregnant women, sole breadwinners, the disabled, employees who study at the expense of the company on the job.

All other personnel subject to dismissal are notified of this 2 months in advance and, if possible, are provided with other work within the same organization.

Business liquidation

If the company stops its work, then all its employees are subject to dismissal. 2 months before the formation of the T-8 order, all key employees and part-time workers must receive notifications against signature.

After 60 days after that, the manager signs the dismissal order, employees are paid salaries, compensation for and severance pay. On the same day they receive their work books.

Job inconsistency

Within the established time limits, at any enterprise, certification of employees is carried out. If in the course of it the commission reveals an unsatisfactory result, then the employee should be offered to move to another, lower position. Only in case of his refusal, the employer can carry out the dismissal.

Nuances

Ignorance labor law sometimes leads to the fact that employees do not fully enjoy all their rights, in particular:

Downsizing, many personnel workers offer employees to write a statement of their own free will, since it supposedly looks better in the work book. However, this should not be done. Reduction is a reason provided by the employer and therefore he will be obliged to pay severance pay in the amount of earnings for 1-2 months;
If the employer offers the employee another job and he refuses it, the employee is fired. At the same time, he retains the right to receive severance pay;

Dismissal can be caused by completely different reasons. Most often, employees leave on their own initiative. Note that this situation is the most acceptable for the employer, because there is no risk that the subordinate can sue. But there are times when an employee simply does not cope with his functional duties, or even does not go to work at all. How to proceed in such a case? How to fire an employee without violating the Labor Code?
Of your own accord
Many managers believe that voluntary dismissal of an employee is the best and easiest option. The subordinate writes a statement, works for 14 days, receives a full payment and takes the work book. And everything is in the bag. But this is not entirely true, there can be many nuances. For example, if a person can no longer fulfill his labor duties due to certain circumstances (for example, he entered a university, retired, moves to another city for permanent residence, goes to a hospital for an indefinite period of treatment, etc.), then he must be dismissed by the number that he indicates in his application. That is, it should be released without working off. In all other cases, the authorities may oblige the employee to work for the required 2 weeks until a replacement is found.
Quite often, difficulties arise when you need to fire an employee on probation. In this case, the period of its development is reduced to 3 days. If the boss obliges him to go to work for 14 days, this will be considered a violation. It is very important to make a settlement with the employee on the last day of his stay in the service, at the same time he is also given a work book.
Dismissal at the request of management
In order for the employer to be able to fire an employee on his own, he needs to have good reasons for this, of course, one desire will not be enough. In addition, if the employer does not fully take into account all the requirements of the Labor Code regarding dismissal, the employee can easily challenge such a decision in court. So, how to fire an employee at the initiative of the director? First, it is worthwhile to understand that the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employment contract with a subordinate can be terminated. In particular, these are the cases:
1. Complete liquidation of an enterprise or individual entrepreneur.
2. Reducing the staff or the number of employees.
3. Inconsistency of the employee with the position held due to insufficient qualifications.
4. Change of the founder (applies only to the head, his deputies, chief accountant).
5. Repeated failure to perform functional duties without good reason, but on the condition that the employee already has a disciplinary sanction.
6. One-time gross violation of one's duties:
absenteeism (absence from work for more than 4 hours in a row);
appearance in a state of narcotic, toxic or alcohol intoxication;
disclosure of commercial, state, official or other secrets;
theft at work, embezzlement or deliberate damage to someone else's property (if there is a corresponding court decision);
violation of labor protection requirements (if it is established by the labor protection commission);

7. The commission of guilty actions by an employee who serves commodity and monetary values, which led to a loss of confidence on the part of superiors.
8. Committing an immoral act (for employees who perform educational functions).
9. Making a decision that caused a violation of the safety of property or its misuse (this applies to the head, his deputy, chief accountant).
10. Single gross violation job duties chief or his deputies.
11. Providing false documents when applying for a job.
12. In other cases provided for by law or an employment contract.
Liquidation of the organization or reduction of staff
If the enterprise is planned to be liquidated or a reduction in the number of employees is coming, then it will not be possible to dismiss employees at their own request. You have to act according to the letter of the law.
Firstly, if we are talking about the liquidation procedure, then this fact must be documented in writing. If the reduction is carried out at the enterprise, then the employer is obliged to prepare documents where the reasons for the reduction in the number of employees should be given. For example, if it is proved in court that the employer did not need to reduce, then the employee can easily be reinstated.
Employees must be informed about the upcoming liquidation and staff reduction 2 months in advance. Subordinates who are subject to redundancy must be offered other vacancies, even if they are lower paid (if any). If the employee refuses the offered job, he can be fired. After a 2-month period, the dismissed employees are calculated, and they are also entitled to the payment of severance pay and average earnings for 2 months (if they are not employed during this period).
You don't suit us
If the subordinate does not cope with his duties, you can also say goodbye to him. However, the fact that he does not correspond to his position still needs to be proven. The knowledge of the employee will have to be tested. To do this, conduct an extraordinary certification. An order for the enterprise creates certifying commission of several people (the leader does not have to be there). Also, a special provision should be developed for the appraisal of employees. It indicates the timing, evaluation criteria and the procedure for such an event.
Subordinates are introduced to this position against signature. It is also necessary to approve the composition of the commission. It may include a director, deputies, representatives from the trade union, the immediate supervisor of the employee whose knowledge will be tested.
How to dismiss an employee under the article for inconsistency with his post? To do this, you need to get the conclusion of the commission that the person failed the certification. But that's not all. The employee will need to be given a second chance, and after a while to arrange another check. If this time the members of the commission recognize the employee as not having passed the certification, then he can be fired. However, remember that a person can try to challenge such a decision in court.
Violation of labor discipline
How to dismiss an employee if he violated labor discipline? In this case, you need to be very careful, since even the slightest mistake can lead to the fact that the employee will be reinstated by court order. First, remember the following points:
You can't be fired for a single misdemeanor. According to the Labor Code, employees who violate the routine and rules repeatedly are subject to dismissal. Lawyers advise writing a dismissal order only in the event of a third violation of labor discipline. For the first two acts, the employee must have reprimands (with entry in a personal file), the validity of which has not expired. If the employee commits a violation for the third time, then he does not need to be reprimanded. You can safely fire him.
An act committed by an employee must be recorded somewhere as a violation. For example, in his job description or other local act.
Before dismissal, the boss must demand an explanatory note from the employee. If he refuses to write it, draw up an appropriate act about it.
Even if you fired a person from work under an article, you still need to pay him off: wage arrears are paid off, for unused vacation, sick leave is paid (if any).
On the last day of service, the dismissed person is given his work book (against signature).

If you fulfill all the requirements, do not miss the deadlines, receive an explanatory note from a subordinate, then you can be sure that it will be almost impossible for a violator of discipline to be reinstated at work.
How to fire an employee for absenteeism?
Well, what is so difficult here? many will ask. The person did not go to work, did not warn the authorities about his absence, which means that you can immediately dismiss him for absenteeism. But it's not all that simple. Even if the employee was absent from work for more than 4 hours in a row or the entire working day, you must get an explanation from him. In addition, the employee may have a good reason. If the next day he brings a sick leave certificate or, for example, a certificate of blood donation, then it will not work to say goodbye to the employee.
Sometimes it also happens that a subordinate has disappeared altogether, does not appear at work for weeks, but phone calls doesn't answer. How to fire an employee in such a situation? You need to send him a letter to his home address stating that he should come to work within a certain period (for example, 5 days) and write an explanatory note. At the same time, it is necessary that his immediate supervisor draw up written acts on the absence of a person in the workplace. If during this time the employee does not appear, you can draw up an order to dismiss. An example of such a document might look like this:
Drunk Appearance
If an employee came to work drunk, it is, of course, prohibited to allow him to perform his duties in such a state. However, it is very important to record the fact that the employee is in a state of intoxication. The immediate supervisor must draw up a memorandum for him (addressed to the employer). It is important in it not only to indicate that you suspect that the subordinate is "underwhelmed". Describe the signs of intoxication you noticed: the smell of alcohol, incoherent speech, lack of coordination, etc.
If possible, create a special commission to investigate this case. It is also necessary to draw up an act fixing the condition of the employee.
It would be even better if you send a subordinate for a medical examination. For example, it can be carried out by a narcologist. Medical opinion, act of the commission, testimony - this is key documents, which give every reason to say goodbye to an employee who likes to take a drink during working hours.
When the employee is already in a sober state, demand from him a written explanation of his act. If he refuses to write such a paper, draw up an act about this as well. After all these procedures, write a letter of resignation. A sample wording is as follows: "Fired for appearing at work in a state of alcoholic (toxic, narcotic) intoxication, clause 6, part 1, article 81 of the Labor Code of the Russian Federation." Date the order on the day of publication, and not on the day when the employee came "drunk".
Dismissal on sick leave or vacation
Dismissing an employee who is on sick leave is generally prohibited. Even if we are talking about reduction, absenteeism, committing disciplinary violation etc. If a subordinate is sick, then no actions can be taken against him (dismiss, transfer to another position). But even in this case there are exceptions.
If the company is liquidated, then all employees can be fired (even if they are on vacation or sick). Also, an employee who is on sick leave can pay himself. That is, dismissal of one's own free will, even if the employee has an unclosed disability certificate, is allowed.
It is worth noting that in this case, the subordinate will not have to work out a two-week period. And the employer is obliged to pay the allowance for sick leave to him. This rule applies if the disability certificate is closed within 30 days after the person leaves work.
How to dismiss an employee on sick leave at the request of the boss? As already noted, this will not work. You have to wait for him to go to work. And only then decide questions about dismissal, if there are grounds for that.
Other reasons for leaving
The Labor Code provides for more than 10 grounds for dismissal of an employee at the request of the boss. In particular, they include theft of property at the place of work or its damage. But it is very important to understand that only a court can recognize a person guilty of theft. The head, of course, has the right to conduct an internal investigation, interview witnesses, but dismissal cannot be made without a court decision. Therefore, do not neglect this requirement.
It is also allowed to terminate the employment contract in cases where the employee has violated labor protection rules. But, again, this fact must be proven. Only the commission on labor protection can recognize the guilt of a subordinate.
Special grounds
Very interesting case termination of the contract due to loss of trust is considered. How to dismiss an employee on this basis? Many employers forget that only those employees whose activities are directly related to the maintenance of commodity and monetary values can be fired in this way. For example, Chief Accountant does not fall under this category. He must not receive money or other valuables by check. For this reason, it is also impossible to say goodbye to the merchandiser, controller, marker and other persons who do not bear financial responsibility.
What else can you fire an employee for? Special grounds also include the commission of an immoral act. However, in this case, it is possible to terminate the employment contract only with the employee who performs educational functions. At the same time, the concept of "immoral act" is not explained by law. It can only be noted that this includes obscene statements or behavior that humiliates another person, the appearance of a drunk in in public places. In any case, the employer (director) himself must determine the severity of the teacher's act and, on this basis, already decide whether he is subject to dismissal or not.
Dismissal of objectionable employees
Many companies have employees who, although they perform their duties well, do not violate discipline, but, for example, are very talkative or like to set up bosses, which can harm the company. Of course, this is not a trade secret, however, many managers would like their subordinates to spread as little as possible about the successes or failures of the enterprise, its corporate policy etc. How to fire an objectionable employee? Naturally, saying goodbye to the employee for his long tongue will not work. We'll have to look for legal grounds. Perhaps, everything is not so smooth in his work, and he can be brought to disciplinary responsibility, doubt his suitability for his position, and, finally, be fired under the article. In a word, here every leader must show ingenuity and ingenuity. You should not rashly write an order and dismiss a subordinate, for example, for violating discipline, if he has not had a single reprimand before. It would also be a mistake to fire him due to downsizing if in fact no downsizing is foreseen. The main thing is that from the position of the law everything is perfect, and the employee has no reason to sue.
Payouts when leaving work
For what you can fire an employee, we found out in more than detail. Finally, it is necessary to mention the calculation. On the last day of his work, the subordinate is entitled to the payment of wages for the time worked, as well as other stipulated accruals. This rule applies to all employees. Even if an employee is fired as a result of his guilty actions, he is entitled to vacation pay. Money is not paid only if the employee goes on vacation with subsequent dismissal. The same applies to the sick leave. Payment for sick leave to a terminated employee must be made within 30 days of settlement. And the last thing: on the day of dismissal, do not forget to give the employee a work book.

Many employers often need to find out how to fire an employee without his will under the law. Given the very strict requirements of labor legislation, as well as the fact that very often workers, especially retirees, do not want to leave, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers, as a result, are even forced to conduct activities to their own detriment, instead of looking for information on how to dismiss an employee under the article and without consequences. However, there is always a way out of this situation - after all, labor legislation protects the rights of not only employees, but also employers.

How to fire an employee without his desire by law in 2018

Situations in which an employer wants to fire an employee without his desire under the law are extremely common in 2018 - some employees may perform actions that are clearly destructive for the company, do not fit in with the team and spoil the working environment, or the need for dismissal may also be caused by third-party circumstances. At the same time, very often employees use the fact of protection from the law and in every possible way prevent their dismissal. Therefore, with illiterate actions, the employer is either forced to tolerate their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

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

This is the best option, as it will allow the employee not to receive negative entries in the work book, and the employer will get rid of possible claims. At the same time, you can both convince the employee to write and draw up an agreement with him to terminate the employment contract - the second case provides for the opportunity to provide the employee with any guarantees and payments in accordance with the provisions of Article 78 of the Labor Code of the Russian Federation. However, not every employee will take such actions - if he is determined to stay at work at any cost, then it will be impossible to dismiss him in this way.

The current legislation gives the employer the power to use disciplinary action against employees, up to and including dismissal for a certain list of misconduct. At the same time, the range of grounds for dismissals is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an objectionable employee if he does not follow instructions or grossly violates labor discipline.

In cases where the main purpose of dismissal is to save the finances of the enterprise, it may be a good option to dismiss an employee without his desire under the law, namely, downsizing. However, it should be remembered that this method requires the strictest adherence to procedural requirements and is associated with additional costs for the employer.

If it is necessary to dismiss an employee who does not want to quit, he has probationary period greatly simplifies the withdrawal process. However, with such a nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.

Repeated violation of the rules work schedule . If the employee did not commit gross guilty acts, due to which he can be fired immediately, then if there are several disciplinary actions, he can still be fired under the article.

Mismatch or insufficient . In some situations, an employee can be fired for inconsistency with the position held or due to insufficient qualifications.

In the event that an employee who does not want to quit, occupies a managerial position, he can be dismissed without other grounds when the owner of the enterprise changes. Sometimes employers even have to specifically resort to a change of ownership in order to fire an employee who threatens the operation of the entire company.

The employer has the right to independently change working conditions for individual positions or the entire enterprise as a whole, which allows you to put the employee in conditions that will make his further work simply unprofitable. And although the employee has the right not to agree to work under the changed conditions, the employer will have the opportunity to fire him, observing a number of certain procedural actions.

There are some categories of employees who cannot be fired at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be fired even if she commits gross misconduct and guilty actions against the employer. The ability to dismiss an employee who has a child under the age of three is also limited - if this employee is a woman or the sole breadwinner.

Each of the above methods of dismissal has its own characteristics, advantages and disadvantages, as well as many nuances of the procedural registration of the procedure, so they should be considered separately in order to know how to properly dismiss an employee by law in 2018 if he does not want to quit.

How to force an employee to quit voluntarily or by agreement

In many, even conflict situations if there is a need to get rid of an objectionable employee, employers simply do not know how to force the employee to quit of his own free will or convince him to stop labor activity by agreement of the parties. At the same time, there are enough possible actions that can be taken in order for the employee to accept the right decision, even when it is initially set to conflict with the employer.

First of all, you should use polite treatment with the employee and find out why he does not want to leave and what actions the employer can do for the employee. This may be additional financial compensation, drawn up by agreement of the parties, drawing up positive recommendations or other benefits that may incline the worker to cooperate. However, it is not a fact that the employee will accept them.

Therefore, then the employee should be explained that he will not achieve anything by conflict, and the employer will have significant opportunities to “spoil” the employee’s life. In particular, it is necessary to notify him that a “bad” entry in the work book will significantly complicate employment. In addition, the employer may make a negative recommendation about the employee. But these methods of influence do not work for every employee.

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

The most convenient for the employer will be the dismissal of employees, if initially in the employment contract the working conditions are specified as clearly as possible, but with the possibility of the employer making certain assumptions. For example, an employer has the right to set an employee a low official salary or not indicate a specific place of work within one locality - then he will have the right to deprive the employee of the bonus part of the salary, if such an opportunity is provided for by local regulations or transfer him from place to place without his consent.

In general, these methods of action are legal, but they cannot guarantee a 100% result. Therefore, if they fail, other methods will have to be used. It should be noted that even dismissal of one's own free will can be challenged in court if it was made under duress. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then arbitrage practice demonstrates the minimum number of decisions in favor of the employee, since such a dismissal is almost impossible to challenge.

The dismissal of a pregnant woman of her own free will, as well as by agreement of the parties, is an exception. In this case, the court most often takes the side of the employee if the employer did not provide her with adequate compensation upon dismissal, comparable to the possible benefits that she would have received if she had remained at work.

How to fire an employee for a gross violation

The current legislation provides for a number of grounds on which an employee can be dismissed for a gross violation. However, the employer should remember that each such violation must be accurately and reliably documented in prescribed by law okay. To gross violations, allowing to dismiss an employee on the sole fact of their implementation include:

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

Start an internal investigation into the circumstances.

Ask the employee for an explanation.

Issue an order to dismiss an employee.

Give the employee a work book, funds due to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judiciary imposes on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that when walking along good reason an employee cannot be fired if the state of intoxication was not recorded by authorized persons - the employee also cannot be fired, disclosure of secrets or personal data must have all the signs of disclosure.

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

How to dismiss for non-compliance or insufficient qualifications

If the employee does not correspond to the position held or has insufficient qualifications, the employer has the right to terminate the employment relationship with him. At the same time, it should be remembered that this ground for dismissal must indeed take place and certain confirmations. In addition, the very establishment of qualifications and compliance job requirements employee must be carried out in independent centers qualification assessments, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should take into account that a fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for services to confirm the qualifications of an employee.

A mandatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. It will be possible to finally terminate the relationship only if there are no such positions in the enterprise, or if the employee refuses to occupy them.

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

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

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

How to get fired on probation

If an employee needs to be fired without his desire during a probationary period, the provisions of the current legislation give the employer additional opportunities to carry out this procedure. In particular, he can inform the employee about his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputable situations should take into account the following nuances:

It is the employer who must provide evidence confirming the employee's failure to pass the test. In their absence, the dismissal will be considered illegal.

The employee must be legally on probation. And this period cannot be assigned to young professionals, pregnant women and minors.

Therefore, basically challenging the dismissal during the probationary period is based precisely on the above two grounds. And it is the employer who should take care of the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to lay off an employee without his desire

If it is necessary to reduce an employee without his desire, the employer has the right to do this in accordance with the standards of Article 81 of the Labor Code of the Russian Federation. At the same time, it should be remembered that the employer in connection with such a dismissal has a number of responsibilities:

Advance notification of layoffs. Employees must be given at least two months' notice of impending layoffs.

Mandatory notification of all regulatory authorities. Namely, a trade union organization, an employment center.

Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.

Execution social guarantees for certain categories of employees. Such guarantees include both a complete ban on layoffs for some workers and the right of workers to have priority retention in the workplace.

Everyone's offer vacancies. The employer, as in many other situations, is obliged to provide the reduced opportunity to get other vacancies suitable for them.

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

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

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

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

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

The world does not stand still, and everything in it changes - including members of any work team: someone decides to give up a boring position, someone is asked to find another place by his immediate superiors. Everything you need to know when leaving - the rights, obligations and instructions for the employer and employee - is contained

Dismissal at the request of the employer

For whatever reason, the employee does not go on a free voyage, it is good if the dismissal occurs by agreement of the parties. But what to do if difficulties arise in the negotiation process, albeit of an official business nature? For example, how to officially dismiss an employee by transfer with his consentso that he does not have any problems either at the old or at the new place of work?

And yet, cases of voluntary dismissal are much simpler than situations when an employee ceases to cope with duties. In order not to act recklessly, the employer must clearly know what reasons exist for dismissing an employee and how it is required to draw up a decision to deprive a person of a position.

Staff reduction

AT times of crisis it happens that you have to cut staff - and this also needs to be done wisely: you should not take decisive steps without understanding how to warn about upcoming changes and how compensation is calculated when an employee is laid off.

When firing a person, remember that he can ask to be released on vacation during the redundancy warning period or go on early dismissal. You can also invite the employee to respond to a more modest vacancy, but before that, figure out whether it is necessary for your employee to move to a position that pays worse. Finally, your financial situation may also change, so it is important to know the procedures and conditions for canceling a redundancy order.

Disability

Unfortunately, sometimes a person ceases to cope with his duties for health reasons. In order to legally issue disability dismissal, you need to understand how much the health of a specialist has suffered - for example, he became a disabled person of the second or third group.

Other reasons

In addition to the above reasons, there are many more reasons for excluding a person from the labor collective. You can dismiss an employee based on the results of appraisal, for absenteeism (even if this happened only once) and, of course, for drunkenness.

Moreover, in addition to typical problems like inconsistency with the position held and constant lateness for work, some members of the team allow themselves misbehavior and extremely careless handling of company property. In this case, your option is to dismiss the employee due to loss of trust.

Dismissal at the request of an employee

Difficulties due to the refusal of a position also arise from the employees themselves. Not everyone knows the procedure and features of dismissal of their own free will, they are not sure how to write a statement correctly. But what if you had to leave the company at the most inopportune time? Can I quit my job while on sick leave or vacation? There are answers to these questions - you need to look for them in the Labor Code.

After dismissal: employer

An employer who has already fired an employee still needs to be on the lookout. He needs to know the specifics of taxation of severance pay upon dismissal, as well as figure out when to issue a work book. There are also situations when it is required to exclude from the work team a person who has not rested for a long time: keep in mind that hard workers are entitled to compensation for unused vacation.

After leaving: employee

According to the law, when voluntarily leaving the workforce, an employee is required to spend another two weeks in the company. But in certain situations, you can quit of your own free will without working off.

Look for and find a job, quit a position that no longer suits you, but do not forget about protecting the rights of the employee upon dismissal. This is especially important for women. Read whether there are grounds for dismissal of a pregnant woman and whether, by law, an employee can be reduced on parental leave, including for a disabled child.

There is a statutory procedure for the dismissal of an employee. The employer must comply not only with the procedure for registering the end of an employment relationship, but also with the procedure for issuing a work book upon dismissal. Because, having issued it at the wrong time, the employer is liable before the law, that is, for its untimely issuance and calculation, the administration of the enterprise bears administrative responsibility.

The company has the right to dismiss an employee who appeared at his workplace in a state of intoxication, as well as for drinking alcohol during his shift. Dismissal for drunkenness labor law allows for a single such misconduct. But it is important that the procedure is carried out in accordance with the rules and regulations, and the fact that the employee is in a state of alcohol, drugs or.

Sustained changes in the state of human health, provoking a violation of vital important functions, which doctors call disability, is one of the reasons for terminating an employment contract this employee with the company he works for. Dismissal on disability is provided for by the norms of labor legislation. There is also an order, and situations, according to which the termination of labor relations occurs in this case.

Every able-bodied citizen is guaranteed the right to work. Likewise, the law ensures the rights of workers to safe conditions work, leisure and wages and, paradoxically, the right to be fired. Dismissal at the initiative of the employee is the right that no employer can dispute. Even if there is work in progress, even if an employee.

Liquidation procedure individual entrepreneur spelled out in the law. Dismissal during the liquidation of an individual entrepreneur is an integral part of the process of terminating the activities of an entrepreneur. All employment contracts concluded by him must be terminated, and employees are issued work books and payroll. At the same time, the law establishes compensation for dismissal from a liquidating enterprise. The entrepreneur is allowed to install independently, as in.

For some categories of working citizens, the state establishes additional guarantees, conditions for the protection of rights and interests. If an employee loses his ability to work, he can be dismissed only in those cases that are specified in the Labor Code. At the same time, the law does not establish a direct ban on the dismissal of disabled people. And the dismissal of an employee due to a disability of the 2nd group can occur on.

Most often, litigation and disagreements between employers and their staff arise when carrying out measures to terminate employment relations. The dismissal of employees at the initiative of the employer is quite difficult legal theme, and causes a lot of controversy not only among the parties to contractual legal relations, but also among lawyers and judges. Let's try to figure it out by analyzing the current labor legislation, when and in what.

Labor legislation regulates a special procedure for the work of part-time workers, their hiring, registration, and dismissal. There are several reasons for terminating the employment contract with such an employee at the enterprise: his own desire, agreement of the parties, as well as dismissal related to the initiative of the enterprise. The dismissal of a part-time job at the initiative of the employer must take place exactly with the specified norms of the law, taking into account the peculiarities of work - internal or.

The reached consent or agreement between the employer and the employee is one of the grounds for termination labor relations. But in order to understand what is dismissal by agreement of the parties, it is necessary to analyze the norms of the current labor legislation, and the general legal nature of the concept of "agreement", to understand the essence of contractual legal relations.

In accordance with regulations Labor Code RF, the employer must provide the employee maternity leave at the birth of a child. Some employees after maternity leave decide to quit on their own in order to devote more time to their family, some quit due to the termination of employment relations with them, which were established for a certain period, and dismissal by agreement of the parties is also possible. In some cases, the employee is supposed to.

You can dismiss an employee for lack of confidence, both working in the field of private business and in the field of public service. Only the grounds and procedure for the dismissal of such persons are slightly different. To figure out how to dismiss an employee for lack of confidence, you must first determine which positions this right of the employer applies to. This wording of parting with an employee is called dismissal under the article, which means.

An employee may have several reasons for dismissal of his own free will: found new job or going to look for her, did not get along with his management or colleagues, is going to move. Often, a conflict with superiors initiates the resignation of an employee, formally, of his own free will. In any case, regardless of the cause and occasion, there is a statutory procedure for the employee to act.

If an enterprise (organization) is liquidated, then in this case all its employees have to be fired. In this article, we will try to tell in detail about all the nuances that occur in this situation: how to properly issue a notice of dismissal to employees in connection with liquidation, pay wages, compensation and severance pay.

Among the main reasons for stopping labor Relations between the employee and the employer, there are both objective and subjective. Objective, are indicated in the norms of the current labor legislation, as general legal grounds. Subjective reasons for dismissal relate, rather, to interpersonal relationships that have been formed in the course of work between the employee and his colleagues, or between him and him.