What is the danger of dismissal without the employee’s consent?
It happens that an employee does not want to write a statement of his own free will and leave peacefully. The entrepreneur has to look for an article for dismissal. An entry in the work book becomes a stigma that makes it difficult to find a new job. And the person devotes himself to the showdown: he finds a lawyer, complains to the labor inspectorate, the prosecutor’s office and the court.
If the employee is dismissed due to mistakes, they will be returned. The employer will pay wages during the dispute under Art. 234 of the Labor Code of the Russian Federation and a fine to the state under Art. 5.27 Code of Administrative Offenses of the Russian Federation. And for the dismissal of a pregnant woman and a woman with children under three years of age, a criminal case is opened under Art. 145 of the Criminal Code of the Russian Federation.
It's safest to do this. Dismiss for a real reason and correctly draw up personnel documents.
Some employees should not be fired
Not everyone can be fired without a statement of their own free will. There are workers with immunity.
pregnant women - Art. 261 Labor Code of the Russian Federation. Even for absenteeism, rudeness and shortages at the cash register. The exception is when the company closes.
Mothers with children under three years old, and without a husband - up to fourteen years old, cannot be laid off or fired for low qualifications. A complete list of protected family workers is in Art. 261 Labor Code of the Russian Federation.
on sick leave or vacation is not fired. We have to wait to go to work. Vacation is considered not only four weeks a year, but also maternity leave, days without pay and going to session.
A minor is fired only with the consent of the labor inspectorate or commission for minors in his city - Art. 269 Labor Code of the Russian Federation. If officials are against it, the person continues to work.
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By agreement of the parties - Art. 78 Labor Code of the Russian Federation
By agreement of the parties - when the employee and employer agree to part ways.
You can offer the employee an agreement with mutual benefit. For example, an employer pays a small bonus, but an employee hands over documents to colleagues and doesn’t come back tomorrow.
The method is convenient: it gets rid of the employee without unnecessary paperwork and procedures. You cannot refuse a signed agreement, unlike a statement of your own free will (there are two weeks to change your mind). But there are still risks.
The court will cancel the agreement if the employee says that he was pressured. Bring witnesses or show correspondence. Therefore, it is better to offer conditions in writing.
For failure to fulfill labor duties and discipline - clause 5 of Art. 81 Labor Code of the Russian Federation
Each employee is obliged to fulfill job duties and not violate discipline.
Responsibilities are written in the employment contract and job description. For example, a salesperson advises clients, accepts money, and sends requests to suppliers.
Discipline is working hours, dress code, rules of communication with colleagues. Discipline is stated in the employment contract and internal regulations (if applicable).
For violation of duties and discipline, a reprimand or reprimand is given. The seller did not return the check - a reprimand, was late for a shift - a reprimand. This is called disciplinary action under Art. 192 Labor Code of the Russian Federation.
When two or more reprimands and comments have accumulated, the employee can be fired. The reason is called “for repeated failure by an employee to fulfill his job duties without good reason.” Suitable for dismissal for poor work, rudeness with clients, lateness.
To be dismissed, you must file a disciplinary sanction at least twice within a year. This is done according to Art. 193 Labor Code of the Russian Federation:
- Record the employee’s misconduct - with a memo about being late, an act of failure to fulfill an obligation.
- Get the employee to explain why this happened. The request is submitted against signature. Then they wait two days, if the person is silent, they issue an act of refusal.
- Issue an order for a reprimand or reprimand.
The order is made no later than one month from the discovery of the offense and six months from its commission. Vacation and sick leave time is not counted. The employee is notified of the order within three days. If he rebels, he makes an act of refusal. If you violate the deadlines, the collection will not work.
Example: a manager collected an employee’s mistakes and fired him
A full-time developer did not deliver the work on time and disrupted the delivery of the entire department’s project. He received a reprimand. Then he left work 40 minutes early - a reprimand.
The company collected two orders and fired for failure to fulfill duties. It was not possible to challenge it - case No. 33-19370.
Article about employee responsibility
Houston, we have a problem!
Who annoys the employer the most:
- Truants. Constantly “late” and those who disappear for several days/weeks for various reasons (binge, binge, hack work) and come to work with their heads hung proudly.
- Slackers. They come to work, but they don’t bring any benefit.
- Sick people. These are not those who occasionally take sick leave or people with real health problems, but deceivers, malingerers and collectors of sick leave certificates.
- Alcoholics and drug addicts. The first in Russia can be said to be commonplace. In some jobs, such a deficiency may be treated leniently. The latter are not welcome anywhere.
- Unsuitable for professional work. Perhaps the “specialist” has a diploma, but he clearly does not understand the work. Something is constantly being refined, completed, added to. Mentors get tired of wasting energy on endless “tutoring.”
If one party to the employment contract violates the agreement, she is punished. For example, if payments due to an employee are delayed, the organization pays compensation. There are also punishments for personnel, or rather disciplinary sanctions (according to Article 192 of the Labor Code of the Russian Federation). You can leave an employee without a bonus if he has not fulfilled any conditions for receiving it. There is no such punishment in the code, but the provision for bonuses is drawn up by the company itself. The organization does not have the right to impose fines; this is contrary to labor legislation.
Let’s assume that all measures of influence have been tried, but the employee does not respond to attempts to solve the problem peacefully and does not want to quit either. What should an employer do?
For absenteeism and alcohol - clause 6 of Art. 81 Labor Code of the Russian Federation
Violations of discipline can be serious. For one rude thing you can be fired immediately. This is also a disciplinary sanction. But there is no need to save the previous ones.
All gross violations are recorded in paragraph 6 of Art. 81 Labor Code of the Russian Federation. These include absenteeism and alcohol or drug intoxication at work.
A gross violation is documented in the same way as a simple violation. A memo or act, explanation, order of dismissal no later than a month from discovery.
Absenteeism
Absenteeism is when a person does not come to work or is absent for four hours in a row.
There is no good reason for absenteeism: illness, accident, death of a relative. Time off and vacations without the request of the manager are also considered absenteeism. This is explained in paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2.
Example of absenteeism:
A specialist at a bank on the eve of a working day at 11:30 pm asked the director for a day off via a WhatsApp message. Silence was considered consent. When she returned to work, she was given absenteeism and fired.
The specialist appealed the absenteeism, but the court did not return the job.
The time off was not approved, which means it’s absenteeism. There is an absence from work report and a memo from the director, an explanation, an order. We met the deadlines. Dismissal for absenteeism is fair and documented correctly - case 33-12011/2019.
Intoxication
Alcohol and drug intoxication must be proven.
The act with witnesses is suitable. The court believed the witnesses that the store clerk was drunk behind the counter - case No. 33-5383/10.
The stronger option is a breathalyzer or a doctor’s report. For example, a breathalyzer helped in a dispute about the dismissal of a trolleybus driver - case No. 2-3639/2018. There is a possibility - take a test or call a doctor.
Stayed a minute
Situation: Wenceslaus is late for the office every day. The working day starts at 9.00, he appears at 10.00. The explanations are different, but everyone knows that the guy just plays “tanks” for a long time in the evenings and doesn’t get enough sleep.
Could Wenceslaus's boss fire him for being late? Yes, it can, but you will have to first collect a certain set of documents. How to act in such a situation:
- Record the fact of lateness in a document and ask for an explanation from the employee. Moreover, it is necessary to draw up an act and an explanatory note for each case.
- The first time a written reprimand is made if the reason turns out to be disrespectful. We introduce the employee to the document on which he must sign.
- A reprimand is issued a second time, provided that the circumstances again do not justify the tardiness. The registration procedure is the same as with the remark.
- For the third time, the last measure is applied - dismissal.
Links: paragraph 35 of Resolution No. 2 of March 17, 2004 (recommendations to courts in cases of labor disputes, hereinafter simply Resolution No. 2), paragraph 5 of Article 81 of the Labor Code.
For loss of confidence in dealing with money and goods - clause 7 of Art. 81 Labor Code of the Russian Federation
Employees are responsible for the money and goods they work with. For shortages, shortchanging customers, selling without receipts and outright theft, you can be fired.
Shortages are documented with an inventory, other violations are documented with acts and memos. An explanation is taken from the employee and dismissed no later than a month after the misconduct is discovered.
How to correctly draw up full liability agreements
Reduction of staff - clause 2 of Art. 81
The essence of staff reduction is as follows. The employer says: “I don’t need so many workers anymore. I'll fire you too. I give time to find a job, help with money and fire.”
Reduction is suitable when the company has fewer orders. For example, the hotel saw a decrease in the flow of tourists and eliminated one administrator position - case No. 33-1805/2013.
How many employees to keep is up to the entrepreneur. I wanted to and cut it. This is stated in the Determination of the Constitutional Court of the Russian Federation dated September 24, 2012 No. 1690-O.
The reduction procedure is as follows. The employee is given a personal notice of layoff, and he works for another two months for a salary under Art. 180 Labor Code of the Russian Federation. Two months later they issue a dismissal order. Before the layoff, the person is offered other vacancies in the company, if any.
The dismissed person is paid two average earnings according to Art. 178 Labor Code of the Russian Federation. If in a month he does not find a job and brings a certificate from the employment center, they add another one. If the employee agrees, they are fired earlier with an increased salary.
Those who perform worse are laid off first. For example, if the bartender has less income than the shift worker, he is fired. If everyone works the same, the employee without dependents is fired. Details about the selection of people for layoffs are written in Art. 179 Labor Code of the Russian Federation.
Dismissal due to staff reduction
The worst option for you. Why? Yes, because in this case the employee will have to pay monetary compensation . Its maximum amount is 3 monthly salaries. In addition, compelling reasons are needed to downsize:
- change in work model. Let's say an employee performed some functions. You've streamlined the process so that a computer program now does it. The need for a person has disappeared, and it needs to be reduced;
- drop in work volumes. The number of orders has dropped, and now 2 managers can easily handle the task instead of three. One is being laid off;
- restructuring. You are closing a branch in the city N. All office employees in this city are no longer needed, they need to be fired.
The employee is notified of dismissal due to reduction at least 2 months in advance. This is done in the format of a notification, with which the employee is familiarized with signature. From this moment on, a person has the right to one paid day off per week to look for a new job. Which is again unprofitable: there is no employee at the workplace, but you need to pay money.
Not everyone can be laid off. Pregnant women, people under 18 years of age, the only breadwinners in the family, people with disabled children and a number of other employees cannot be fired due to staff reduction. And now, according to the new law adopted by the government and signed by the president, it will not be possible to lay off people of pre-retirement age . These are those who have 5 years or less left before they retire.
One more thing. Remember, you are not laying off Ivan Ivanovich Ivanov, but a position, for example, a sales manager, that is, a staff position. There were 10 managers, after the reduction there were 9. And it’s up to you to decide which of the 10 people to fire.
Other grounds for dismissal
We talked about layoffs, which are common in any business. But there are much more reasons in the Labor Code. Here is a list of rare, but also real, articles for dismissal:
— Liquidation of a company, closure of an individual entrepreneur — clause 1 of Art. 81 Labor Code of the Russian Federation;
- The employee forged a diploma or work record when he was getting a job - clause 11 of Art. 81, art. 84 Labor Code of the Russian Federation;
- Failed the knowledge test - clause 3 of Art. 81 Labor Code of the Russian Federation;
- The employee is drafted into the army or his driver’s license is taken away, and he is a driver - art. 83 Labor Code of the Russian Federation;
- Part-time worker, and you found a permanent one - art. 288 Labor Code of the Russian Federation.
"I'm a slacker, oh, mama-mom..."
Situation: Nikifor is an auto mechanic, he comes to work in the garage on time and leaves at 18.00. True, instead of repairing cars, he spends the whole day chatting with colleagues and wandering around the territory. He is not a bad person, but he is not useful as an employee.
Is it possible to fire Nikifor? The answer is yes. True, the process will not be simple:
- We draw up an act, collect evidence, take explanations and make a penalty: first a reprimand, then a reprimand and only then dismissal.
- Difficulty in collecting evidence. Colleagues can cover for a friend, and without significant “evidence”, for example, video recordings, it is problematic to prove the fact of idleness. Although there are other ways:
- An employee’s work is related to documents or a specialized program - we look at the document flow schedule, whether it is being completed on time, we check the accounting log in the program: what documents the employee opened, created, how many and how he worked with them;
- negotiates by phone - we take a printout of calls;
- serves clients - we collect complaints (I came to the call, but did not complete the work completely or did not do it at all for biased reasons);
- engages in practical work (construction, repairs) - we control the volume of implementation;
- drives a car - look at the odometer, install the navigator and track the route, etc.
Links: clause 5 of Art. 81 of the Labor Code, as well as paragraph 35 of Resolution No. 2.
How to file a dismissal
On the last day of work, personnel documents are drawn up and salary arrears are paid. Do it as it is written in Art. 84.1 and 140 Labor Code of the Russian Federation:
- Print the dismissal order with the reason and an article from the Labor Code. The day after the order, the person no longer works for you.
- Let the employee read the order and ask him to sign the text. This is an important point that is often forgotten.
- Make an entry in your work book.
Article: how to make an entry in a work book
- Give your salary and compensation for vacation, otherwise penalties will accrue.
- Give out the work book, ask to sign for receipt.
- Copy the order to the employee at his request.
How to fire an employee - voluntary dismissal?
The first way to get rid of an employee without serious consequences for the organization is to ask him to write a letter of resignation. This will solve the problem of how to legally fire an employee. However, this will require the consent of the person; coercion in the literal sense can only aggravate the situation.
According to Art. 80 of the Labor Code of the Russian Federation, you can dismiss an employee at your own request only if there is an application from the employee. In this case, several conditions are met, both by the management of the organization and by the person who wants to stop working:
- the application must be sent no later than two weeks before the date of dismissal (the parties can agree on a dismissal date earlier than the deadline);
- The employer must provide support for the dismissed employee, namely payment for unused vacation and days worked.
In addition, in a similar way, you can dismiss an employee on sick leave if the desire comes from his side.
The procedure does not require complicated steps. It is enough to accept the application, determine the date of dismissal and issue an order. The work book of the dismissed employee is handed over to him with a corresponding record of termination of work on his own initiative.
Another option that allows you to decide how to dismiss an employee without consequences for his management is an agreement between the parties.
The agreement is concluded on the basis of the initiative of one of the parties to the relationship. Moreover, if the employee has expressed a desire to terminate the employment contract, then it will no longer be possible to withdraw such a statement.
It is fundamentally important to indicate the reference to clause 1, part 1, art. 77 of the Labor Code of the Russian Federation, so as not to interpret the employee’s initiative as leaving at his own request.
