Why you can fire an employee and how to do it correctly

What laws govern the legal relationship between employer and employee?

The relationship between an employee and his employer is regulated by labor law.

Its main source is the Labor Code of the Russian Federation of December 30, 2001, 197-FZ, regulations.

On their basis, an employment contract is developed between the employer and the employee.

According to Art. 6 of the Labor Code, the procedure for dismissal is established by federal authorities.

The general grounds for dismissal are given in Art. 77 TK.

Also, the document (Articles 278, 288, 307, 312, 336) provides additional grounds on which an employee can be dismissed.

Dismissal occurs:

• at the initiative of an employee or employer;
• by agreement of the parties;
• due to circumstances (not at the will of the employer and employee);
• when does a fixed-term employment contract end?
• if the employee is to be transferred to another employer or to another position (job);
• if the employee does not agree to work due to a change in the owner of the organization;
• if the employee refused to work due to a critical change in the terms of the employment contract;
• when an employee refuses to be transferred when the employer moves to another location;
• when an employee refuses to be transferred to another job due to changes in his health status;
• when the rules for concluding an employment contract are violated, if this makes it impossible to continue working.

The first five types of dismissal are the most common.

About compensation

An employee who is dismissed at the initiative of the employer must be paid compensation, regardless of the reason for the dismissal:

1. First of all, the employer must pay wages for the month in which the employee was fired; the amount depends on the number of days worked.
2. If the employee was not on vacation, then he must be paid compensation for it, since tax was calculated monthly from the amount of his salary.
3. Severance pay must also be paid.

Dismissal at the initiative of an employee

In most cases, an employee quits on his own initiative under clause 3, part 1, article 77 of the Labor Code of the Russian Federation.

He notifies the employer of his intention no later than two weeks in advance, unless a different period is established in the employment contract or federal legislation.

Two weeks are counted from the day after the application is submitted.

In a number of situations, the employer must carry out the dismissal within the period specified in the submitted application.

These include the following circumstances:

• impossibility of continuing to perform work duties due to retirement or enrollment in an educational institution;
• failure by the employer to fulfill obligations under the employment contract.

The advantage of this method of dismissal is that the employee has the right to withdraw his own application if another person has not been invited to take his place until this moment, and who cannot be denied employment according to the norms of current legislation.

Such an invitation is drawn up in writing.

After the expiration of the period, the applicant has the right not to go to work.

If the two-week period has expired, but the contract has not been terminated and the employee does not demand dismissal based on the previously given application, then its validity does not terminate.

This method of dismissal is beneficial to both the employer and the employee. The first one has time to either persuade the employee or find a new specialist to fill the vacant position, and the second one does not close the door on himself if he is not sure of his future.

Truancy (subparagraph “a”, paragraph 6, article 81)

If an employee is absent from the workplace for the entire working day or for more than four hours in a row, dismissal occurs automatically.
It is more difficult to fire an employee who is often late, but this is also possible if the start time of work is specified in the internal labor regulations, in the employment contract, and also in the collective agreement, if the company has one. Natalia Plastinina, head of the legal support sector:

Let us immediately note that such a basis can never be expected from the average, moderately responsible employee. Lateness does not form such a basis for dismissal as absenteeism, since the employee’s absence does not reach 4 or more hours in a row. In addition, there is a high risk of incorrectly recording the event, incorrectly classifying absence as absenteeism, and incorrectly compiled documentation to form the basis provided for in paragraphs. “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Disadvantages of applying dismissal on this basis:

• low probability of the foundation itself;
• high probability of errors in the dismissal procedure for the above reason;
• high risk of challenging dismissal due to its injustice, illegality, as well as in order to eliminate an unseemly entry in the work book;
• in those organizations where there is no full-time lawyer, and the management of personnel records is entrusted to the secretary, all of the above risks of erroneous actions by the employer increase significantly. The risk of reinstatement for a dismissed truant also increases.

As practice shows, regulatory authorities are also on the alert, inspecting employers and may recognize an order to dismiss for absenteeism as illegal.
This is what was done in the Altai Territory by the State Labor Inspectorate. As a result of an inspection carried out on the basis of a citizen’s appeal, the state labor inspector found that, in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not request a written explanation from the employee regarding the fact of absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for in paragraphs “a” clause 6, part 1, art. 81 Labor Code of the Russian Federation. At the request of the state labor inspector, the order of dismissal by the employer was canceled. For violation of labor legislation, the director was brought to administrative liability in the form of a fine.

Anna Ustyushenko, partner, head of practice at the INTELLECT-S Group of Legal Companies:

Even if an employee was absent from work for the required amount of time for absenteeism, he can hardly be fired automatically. In any case, this will require strictly following the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the reinstatement of the dismissed person with accrual of payment for the time of forced absenteeism.

Dismissal initiated by the employer

At the initiative of the employer, the employee is dismissed in the following cases:

• liquidation of the organization is expected;
• the owner of the organization’s property changes (the situation applies to the manager, his deputies, and the chief accountant);
• the number or staff of employees is reduced;
• the employee is not suitable for the position he occupies or is unable to fulfill the obligations assigned to him;
• the employee constantly evades fulfillment of contractual duties without good reason, if he has previously received a disciplinary sanction;
• the employee grossly failed to fulfill his job duties one time (he skipped work, showed up at work drunk, divulged a secret protected by law, committed theft of work property, violated labor safety requirements, which led to grave consequences);
• the commission by an employee who services commodity-monetary assets of actions that led to a loss of confidence in him;
• the employee committed an immoral act that was incompatible with his position, which involved edifying functions (kindergarten teacher, teacher, etc.);
• the manager, his deputies or the chief accountant made an unreasonable decision, and it led to a violation of the safety of property, its misuse, and other damage to the organization;
• the employee submitted false documents when applying for a job;
• the employee violated other terms of the employment contract;
• other cases established by current legislation.

It is worth noting that it is prohibited to dismiss an employee if he is temporarily disabled (illness, pregnancy) or is on leave, including for child care.

The exception is the upcoming liquidation of the enterprise.

Categories of citizens who cannot be fired by law

If you are interested in who cannot be legally fired from work, you need to know that there are categories of citizens who enjoy preferential rights. When staffing is reduced (in accordance with Article 179 of the Labor Code), those who show the highest indicators of labor productivity, as well as those who are highly qualified, have advantages over other employees of the enterprise.

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When choosing employees who need to remain at work, the owner of the enterprise, based on the provisions of paragraph 2 of Article 179 of the Labor Code, takes into account a number of circumstances that influence the final result in terms of staff size. Preferential rights are enjoyed by employees who:

• have more than 2 dependents;
• are disabled from war;
• are the only breadwinners in the family;
• Being employees of the enterprise, they received disabilities, injuries and occupational diseases.

There is also a separate category of citizens who cannot be dismissed from work by law. These should include inventors, workers who did not change jobs after military service, as well as spouses of military personnel on active duty in military units and government agencies. According to clause 3. Article 179 of the Labor Code, the head of the enterprise can indicate in the employment contract the category of persons who will enjoy preferential rights in the event of a reduction in the number of workers.

When drawing up an employment contract, the employer has the right to indicate the categories of persons who cannot be dismissed from work at the time of reduction, and there are also additional conditions that prevent staff reduction:

• Irrelevance of grounds for layoffs. Paragraph 5 of Article 81 of the Labor Code of the Russian Federation provides for cases in which, by law, it is impossible to dismiss an employee if a reduction in staff is planned. According to clause 5, persons whose actions led to a loss of trust are not subject to reduction. It is also impossible to dismiss an employee from work on the initiative of the boss if the employee has committed an immoral act not related to professional activity, if a year or more has passed since its discovery.
• Failure to comply with special conditions for dismissal of employees. If a company employs a minor, he cannot be dismissed by law unless there is permission from the relevant authorities. According to Art. 269 ​​of the Labor Code, the employer is required to obtain permission from the State Labor Inspectorate, as well as the Commission on Minors’ Affairs.
• Deliberately reducing the time required to notify an employee (trade union) or lack of notification of upcoming dismissal from work. The employer is obliged to notify the trade union of a massive reduction in staff at the enterprise no later than 3 months (according to Article 82) before the start of the layoff. The same applies to notifying an employee (Article 71), who must be notified no later than 3 days if he has not shown satisfactory work results during the trial period.

Features of dismissal during liquidation of an enterprise

Dismissal upon liquidation of an enterprise is carried out in accordance with clause 1, part 1, art. 81 Labor Code of the Russian Federation.

In this case, the employee is warned about the upcoming dismissal at least two months in advance.

In addition to salary and monetary compensation for unused vacation, the employer pays him severance pay - average monthly earnings, and also retains his average monthly earnings for the period until he finds a job, but this period should not exceed 2 months.

The specified period can be increased to three months, but provided that such a person contacted the employment service within two weeks after dismissal and during this time he was unable to find a job.

Such dismissal is carried out in accordance with Part 1 of Art. 81 Labor Code of the Russian Federation.

Upon dismissal due to liquidation, no additional guarantees are paid to union members and those on vacation or sick leave.

Quite often, management, not wanting to burden themselves with financial obligations, is cunning and persuades employees to leave of their own free will.

In this case, the dismissed person will not receive any compensation other than the basic calculation or the amount specified in such an agreement.

Article of the labor code

In total, the TK currently provides 14 grounds, according to which an employer can dismiss a person from work without his consent. If there is a planned reduction at the enterprise, then the employee is fired under Article 373 of the Labor Code of the Russian Federation. If the reason for a person’s dismissal was the initiative of the boss or the sudden liquidation of the enterprise, then they refer to Article 81 of the Labor Code of the Russian Federation.

Dismissal for violating corporate rules

These include all the above-described violations of labor discipline.

However, proving that an employee actually violated corporate rules is not so easy.

For example, if a person is not at work for one day, this does not mean that he was absent.

He may appear in a few days with a sick leave certificate, but it is impossible to dismiss an employee who has temporarily lost his ability to work.

If a person is drunk, then to do this you need to force him to undergo a medical examination and receive an appropriate document that would confirm this fact.

It is even more difficult to prove professional unsuitability. For this purpose, certification of all company employees is assigned.

The employer must first comply with everything, and then prove that it was carried out in accordance with all the requirements of current legislation.

The reason for certification must be compelling, for example, a drop in product quality, a decrease in production volumes, consumer complaints about services or products.

The procedure for its implementation is established by labor legislation and other regulations, taking into account the opinion of the representative body of workers.

Dismissal in the event of a reduction in staff or if an employee is not suitable for the position held is carried out only if such an employee cannot, for various reasons, be transferred to another job, in the same organization or with the same individual entrepreneur.

The position is offered in the same location, unless a transfer to another within the same enterprise is provided for in the employment contract.

It is worth noting that the transfer is carried out with the written consent of the dismissed person.

Reasons for dismissal

An employer does not have the right to fire a person for his own reasons. If this happens, the employee has the right to appeal the action legally.

However, there are several reasons why a boss may fire his employee:

1. Often, dismissal occurs due to violation of labor discipline. In this case, it may be difficult for the employee to find a new job in the future. This list includes many factors. For example, if an employee refuses to perform his direct duties. Sometimes, the exception may be his poor health. The reason for dismissal can also be if a person is periodically late for work or skips work.
2. Another reason for dismissing an employee at the initiative of the boss is incompetence. Situations arise when, after being hired, the boss concludes that the new employee cannot cope with his responsibilities and does not see prospects in him. In this case, the employer has the right to fire him. Also, after getting a job, it may be revealed that the employee used fake documents in order to get the desired position, this can also be the reason for dismissal.

Other situations arise when an employee is fired, even if he performed his duties perfectly:

• During the crisis, many employees were fired due to the bankruptcy of the enterprise. The boss was unable to pay wages and was forced to cease the existence of the organization. Sometimes, this operation is carried out according to a court decision.
• Another reason for dismissal without an employee’s fault is a massive layoff of workers . The director of the organization becomes unable to pay wages to the entire staff and he independently decides to reduce it. Often, more promising employees remain in their jobs and are not laid off.
• Employees such as deputy managers may be fired during a change in leadership.
• According to the law, they have the right to fire the boss himself if he committed any actions that contradict the labor code.
• Also, an employee may be temporarily laid off if the business is closed for a period of time. This mainly applies to grocery stores. If an expired product is discovered, it may be closed for 90 days.

Staff reduction

In general, the algorithm for dismissing an employee looks like this.

This type of layoff is worth paying close attention to, especially during a financial crisis when companies are laying off staff en masse.

• Firstly , the reduction order must indicate its date. The notice period for employees depends on it.
• Secondly , notice of dismissal for employees subject to layoffs is issued no later than two months before the future dismissal. Such notices are issued to each employee individually against signature. It also lists the positions that can be provided, as required by Art. 180 TC, if such work is available. It should be noted that vacancies are offered as they become available, up to the date of termination. If the employee agrees to another job, a transfer is issued.
• Thirdly , if there is a trade union organization, it is notified of the reduction 2 months before the start of dismissal of employees, including those who are not members of the PS, which corresponds to the definition of the Constitutional Court of January 15, 2008 No. 201-O-P. If we are talking about mass dismissal, then this period is increased to three months (for example, during the liquidation of an organization).

When dismissing employees due to downsizing, a preemptive right applies if there is a choice between several specialists.

The following shall not be dismissed on this basis:

• pregnant women and mothers with children under 3 years of age;
• traditionally retain more productive and highly qualified employees;
• if it is impossible to choose the best, then preference is given to:
• family, supporting two or more dependents;
• if the employee has no other working family members;
• employees who received work injuries or an occupational disease from this employer;
• combat disabled people;
• employees who improve their skills on-the-job at the direction of the employer.

You will probably be interested in looking at the mental map “How much should we work?”, which shows working time standards

Or HERE you will learn about the peculiarities of dismissal of a pregnant woman

Amount of compensation upon dismissal by agreement of the parties:

https://legalmap.ru/articles/tp/dismiss/kompens-uvoln-sogl-storon/

How to protect your rights in case of illegal dismissal? What to do and where to complain?

As a rule, the dismissal of an employee is formalized by order of the employer. The employer is obliged, on the basis of Part 2 of Article 84.1 of the Labor Code of the Russian Federation, to familiarize the employee with the dismissal order against signature. If you need a copy of the order, then the employer, based on the same part of the law, is obliged to give you a copy of the dismissal order certified by his signature or seal. Based on Part 4 of Article 84.1 of the Labor Code of the Russian Federation, on the day of dismissal, the employer is obliged to issue the employee a work book and, upon the employee’s written request, provide him with signed or sealed copies of work-related documents.

But what should an employee do after illegal dismissal?

Look, according to paragraph 1 of Article 392 of the Labor Code of the Russian Federation, an employee has the right to go to court in disputes about dismissal within 1 month from the date of delivery of a copy of the dismissal order or work record book. Of course, you can limit yourself to a work book, but it’s still better to demand that they give you a certified copy of the dismissal order.

As you can see, you have exactly 1 month, for this category of disputes the statute of limitations is only 1 month, this is due to the specifics of reinstatement at work. If you missed this deadline, it will be extremely difficult to restore it and only if you had valid reasons, for example, a serious illness or caring for a seriously ill loved one.

Many people make a mistake and file a complaint with the labor inspectorate; of course, after checking and identifying the fact of illegal dismissal, it will issue an order to eliminate the violation, and if the employer does not eliminate it, then he will be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation, but the matter may not come to that, although for legal entities the fine is quite substantial, from 30,000 to 50,000 rubles, which cannot be said about individual entrepreneurs; for such cases they are fined in amounts from 1,000 to 5,000 rubles. Therefore, for you, the labor inspectorate is a priority authority, since our statute of limitations is 30 days, and if you file a complaint with the labor inspectorate, then, in accordance with paragraph 1 of Article 12 of the law “On the procedure for considering appeals from citizens of the Russian Federation,” your appeal will be considered within a maximum 30 days, they may consider it on the 10th day, maybe on the 20th, or maybe on the 30th, and that you will sit and wait for the weather all this time, and then force the labor inspectorate to move, and in the meantime the statute of limitations will pass and it will not be possible to restore it.

We need to act immediately and the first thing we do is prepare a statement of claim to the court, demanding that you be reinstated in your job, since the dismissal was illegal. Even if the employer indicated the reason according to the Labor Code, this does not mean that your efforts are pointless; the employer will need to prove the fact of violation of labor discipline on your part. And since he will not have evidence, the court will be on your side.

You, in turn, must also prepare well for the court, prepare your arguments, evidence, present your position, we indicate all this in the statement of claim, we also indicate which articles the employer violated.

Even if the employer fired you allegedly for absenteeism, he will have to prove that you were not at work without good reason for more than 4 hours in a row or throughout the entire working day; if he does not prove this, then the court will side with you.

It would be a good idea for you to bring witnesses who will confirm that you did not violate labor discipline, you were at the workplace. That is, the more evidence you have, the higher your chances in court. Witnesses can also confirm the fact of forced dismissal, that the employer put pressure on you and the decision to write a resignation letter of your own free will was not your initiative. If you are fired for absenteeism, then remember, perhaps on the day when you allegedly absented yourself, you signed some documents or did some kind of work documented with dates, all this can be claimed in court.

It is necessary to submit a statement of claim to the district court at your place of residence, that is, at the place of residence of the plaintiff in accordance with paragraph 6.3 of Article 29 of the Code of Civil Procedure of the Russian Federation.

When the court decides to reinstate the employee at work, it turns out that the court decision has now recognized that the employer violated the labor code and fired you illegally, which was the reason for forced absenteeism.

According to Article 234 of the Labor Code of the Russian Federation, the employer has an obligation to compensate the employee for the earnings he did not receive in all cases when the employee was illegally deprived of the opportunity to work due to the employer’s fault, and the employer has an obligation to compensate the employee for the earnings he did not receive as a result of forced absence in the event of the employee’s illegal removal from work. work. That is, if you were illegally fired and then reinstated, then the employer pays you for all the days of forced absence, about which a corresponding order is drawn up, which you and the employer must sign.

Also, if the court decision was in your favor and the court ordered the employer to reinstate you at work, then the employer issues an order to reinstate you at work and then makes an entry in your work book about reinstating you at work. Make sure that the employer indicates in the work book that the entry under such and such a serial number is not valid and indicates the number of the order by which he reinstated you at work.

Please be aware that the court's decision to reinstate you at work must be executed immediately, no later than the next day after the decision is made.

Dismissal by agreement of the parties

This type of dismissal is considered the most peaceful.

In fact, the law allows bilateral termination of an employment contract with the consent of both parties.

The initiative can belong to both the employee and the employer.

In this case, an agreement to terminate the contract is usually drawn up, which is drawn up in any form.

Such an agreement specifies the terms of dismissal and its conditions.

Some companies follow a simplified procedure: the manager simply imposes a resolution on the employee’s statement, in which he indicates the reason - an agreement of the parties.

In general, dismissal by agreement of the parties is interesting for both the employer and the employee:

• the employee can count on compensation, that is, additional payments upon termination of the contract, the amount of which is not limited in any way. However, such payments must be recorded, otherwise the calculation will be made in accordance with the requirements of the Labor Code of the Russian Federation - the amounts will be minimal;
• the employer has a guarantee that the former employee will not change his mind, as happens when dismissing at his own request: in order to cancel the agreement, the good will of both parties is required. In addition, he can fire an employee, even if he is on vacation or sick leave.

For non-compliance

Clause 3 of Part 1 of Article 81 of the Labor Code of the Russian Federation provides that an employee can be forgiven if it is revealed that he is not suitable for the position he occupies.
However, everything is not so simple here. The resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that dismissal for such a reason is permissible provided that the employee’s inadequacy for his position or work performed due to his insufficient qualifications is confirmed by certification results. That is, the subjective opinion of management that the employee does not correspond to the position, or simply cannot cope with the job, is not enough. Therefore, the employer does not have the right to terminate the employment contract with a specialist on the above grounds if the employee’s knowledge has not been tested, or the certification commission has come to the conclusion that the specialist is professionally suited. The Plenum of the Supreme Court also clarified that the conclusions of the certification commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case. This means that if, in the process of parting with an employee, a dispute arises that reaches the arbitrators, then the servants of Themis, although they will take into account the opinion of the commission, but it will not be decisive; judges will also take into account, for example, the opinion of the head of the company about how suitable the employee is for the position held. Please note: it is allowed to fire a person for his professional incompetence only if it is impossible to transfer the employee to another job, for example, a vacant position.

Please note: it is permitted to fire a person for unsuitability only if it is impossible to transfer the employee to another job, for example, a vacant position that matches the employee’s qualifications or to an open lower-level vacancy/lower-paid job. At the same time, part 3 of Article 81 of the Labor Code of the Russian Federation obliges the company to offer the employee all positions that meet the above requirements.

Let us once again return to Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation. Now let us study the following important clarification contained in the paper. If an employee was dismissed under paragraph 3 of part one of Article 81 of the Labor Code, then the company is obliged to provide evidence indicating that the employee refused the transfer, or the company did not have the opportunity (for example, due to the lack of vacancies) to “transfer” the person with his consent to another position.

Rostrud, in Letter No. 1028-s dated April 30, 2008, clarified that dismissal on the above grounds without certification is not provided.

Thus, saying goodbye to an employee for his inadequacy for the position is quite problematic.

Dismissal due to circumstances beyond the control of the parties

Here, dismissal is regulated by Art. 83 Labor Code of the Russian Federation. This article is rarely used.

The grounds for such dismissal may be:

• conscription for military or alternative service;
• reinstatement of an employee who previously occupied this position based on a court decision or labor inspectorate;
• failure to be elected to office;
• conviction to punishment in accordance with a court decision;
• a person’s inability to work according to a medical report;
• death of an employer (IP) or employee, recognition of one of them as missing;
• emergency circumstances recognized by the decision of the Government of the Russian Federation, a state authority, a subject of the Russian Federation (war, natural disaster, accident, etc.);
• disqualification or administrative punishment that excludes the possibility of performing duties in accordance with the employment contract;
• expiration, suspension for two or more months, deprivation of an employee’s license, the right to drive a vehicle and other special rights;
• termination of access to state secrets, if necessary;
• excess share of foreign workers;
• changes in labor legislation.

Such dismissal sometimes requires a special procedure to be followed when another position must be offered in the same enterprise in the same area.

When dismissing an employee under this article, there is no preliminary deadline, that is, dismissal can occur on the same day.

But the employee must receive written notice of dismissal, which can be given even two hours before the event.

Dismissal of a director without explanation

The manager is the only employee in the organization who can be dismissed without explanation ( Article 278 of the Labor Code of the Russian Federation

). The initiator can be:

• authorized body (shareholders, founders);
• owner of the enterprise.

In Article 278 of the Labor Code “Additional grounds for termination of an employment contract with the head of an organization”

a list of grounds relating to the termination of the employment contract of any of the enterprise managers is added:

• issues related to the bankruptcy proceedings of the organization;
• violation of wage payment obligations;
• decision of the founders or shareholders to terminate the employment contract with the manager.

Other grounds established by the Labor Code may also serve as a reason for terminating the contract with the director.

You may be interested in: Procedure for dismissing a CEO

Dismissal procedure

The procedure is carried out in the following order:

1. A meeting of shareholders and a board of directors is held, of which all participants are notified in advance in writing, specifying the date and time.
2. A protocol is kept where the participants, their oral presentations, and conclusions are recorded. Copies are distributed to all those present at the end of the event.
3. A decision is made by a majority vote and recorded in documents.
4. A new leader is appointed.
5. A draft dismissal order is drawn up, and on the last day of work it is handed over to the outgoing director, who draws it up for himself and signs it.
6. Documentation and material assets are transferred to the successor (with the drawing up of an act).
7. On the last working day, the following calculations are issued: wages, vacation compensation, severance pay.
8. Notify the bank and other interested institutions about the change of manager.

When a manager resigns, he is paid a benefit in the amount of three monthly salaries.

Failure to comply with the requirements of the Labor Code when registering a dismissal may result in an appeal of the decision in court, the prosecutor's office, or the labor inspectorate.

How to protect yourself from wrongful dismissal?

Quite often, a fired person believes that he was deprived of his job unfairly.

According to statistics, 50% of workers face such a violation.

One of the most difficult disputes is one that involves a statement of voluntary resignation, when the employee claims that he wrote it under pressure.

Here it is rarely possible to prove that rights were actually violated.

If an employee believes that he was fired illegally or with violations, then he can always apply to protect his rights:

• to the labor inspectorate at the place of work - complaints are considered within 30 days;
• to the court at the location of the organization - complaints are considered within 30 days as required by law, in fact this period is longer;
• to the prosecutor's office.

Absenteeism

Absenteeism will be considered absence from the office without good reason during the entire working day (shift), regardless of its duration.

You can also dismiss an employee if he was absent for four hours per working day (shift). So, if, for example, an employee went out for lunch and went on a shopping spree, this is a reason for dismissal. Please note that absences from the office must be within the specified period and must be consecutive. This means that if an employee came to work without delay, and then went about his business and was absent for four hours, this can be considered absenteeism. If an employee goes out several times during a working day, for example, for half an hour, this is not considered absenteeism, regardless of how long the person was absent in total.

It is not easy to fire someone for absenteeism, because you will need to confirm the employee’s absence from the workplace. At companies where arrival times are recorded in logs or using turnstiles, checking the availability of a specialist on site is quite simple. If there is no such control, then problems may arise, but there are options, and in this case: evidence of absenteeism will be, for example, witness testimony.

Another feature: absenteeism can only apply to cases where the employee did not show up for work without reason or was absent from his place. This means that if a person did not come, for example, to a cleanup day, or to some corporate event that was held on his day off, this is not considered absenteeism.

Please note that if a person does not show up for work for several days in a row, and in our country this happens all the time, then upon dismissal the last day will be considered the day before the start of absenteeism.

What types of dismissal are the most profitable?

The most convenient from the point of view of material benefits is dismissal by agreement of the parties, when, roughly speaking, you can bargain with the employer for the so-called payout. Moreover, it is beneficial for both the employer and the employee.

The most advantageous from the point of view of freedom of action is dismissal at will, when there are two weeks left for maneuvers and making a final decision.

In the case where the employee is under pressure, the statement “at his own request” can be called one of the most disadvantageous, since it practically makes it impossible to challenge the dismissal.

Dismissal options

Labor legislation provides for 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

The employee’s own desire is the most common basis for terminating a relationship with the employer:

1. The employee writes a letter of resignation indicating the date.
2. The employer is obliged to satisfy this request.

As a rule, there are no difficulties with registering dismissal at the initiative of an employee. The exception is issues related to mandatory “working out”. The standard is 2 weeks, which the employee continues to work from the moment the application is submitted.

Certain categories of personnel have the right to a reduced period of notice of dismissal. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not manage to pay the resigning employee in time and issue him a work book.

The employer's initiative involves a more complex dismissal process. If this is a reduction in staff or liquidation of a company, the procedure is clearly described in the legislation and does not pose any problems from the point of view of documentary support. The main task here is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to dismissing an employee unilaterally by the organization, the employer’s “freedom” is clearly limited: desire alone is not enough for this. There is a list of reasons for which an employee can be fired, and a special procedure for recording violations for each of them. There are no documented misconduct by the employee - there is no reason for dismissal.

A “compromise” option for terminating the employment relationship is an agreement between the parties. In this case, the employer and employee amicably agree to part ways under certain conditions. Most often it looks like this: the organization is interested in dismissing an employee without the risk that he will change his mind and withdraw the application “on his own.” The employee “bargains” to receive monetary compensation for his care.

The employee's desire is the law

Art. 80 of the Labor Code of the Russian Federation is the simplest and most “grounded” of all reasons to terminate cooperation. It does not require any explanation or additional conditions: no one can force another person to work if he does not want to. To resign from a position at your own request, it is sufficient to express this desire in writing 14 days before the date of departure. In some cases, this period may be reduced or even not required at all:

• upon dismissal from the probationary period;
• during sick leave;
• from maternity leave;
• by agreement with the employer.

If, before the expiration of 14 days, the employee changes his decision and wants to remain in his position, he has the right to withdraw his application or write a new one, canceling the first one.

FOR YOUR INFORMATION! The employer's consent is not required for voluntary dismissal; a written notice (application) is sufficient. If the manager refuses to accept it, the law provides for the employee the opportunity to send an application by mail with automatic termination of work after the legal two weeks.

Other methods of dismissal

Employers also often have to find out whether it is possible to dismiss an employee without legal grounds, but so that they do not subsequently have to pay fines. In this case, they resort to several methods:

• Make it clear to the employee that he is a bad specialist.

When there are no legal grounds for dismissal at the initiative of the employer, and the employee himself does not agree to the application of his own free will, one can resort to “unhealthy” criticism. This method is considered psychological pressure.

Such means are incorrect, but many managers resort to them, even when it is necessary to fire an employee who is on vacation.

Pressure is exerted through different means. The person cannot stand it and eventually decides to leave. At the same time, it is almost impossible to prove the fact of inducement to dismiss.

• Changing employee responsibilities.

In the matter of how to fire an employee, the employer is helped by his own powers. He may assign additional responsibilities to a person, citing lack of personnel, and add unfounded criticism to this.

Under such pressure and a lot of work, employees often “break down” and do not want to put up with this state of affairs.

• Creation of a commission to test professional suitability.

This creates a stressful situation. If the work of the commission is aimed at a specific person, then the employee will realize that there are questions about his work and the risk of dismissal. Often in such a situation, the employee decides to quit himself.

• Change in responsibilities involving demotion.

The manager has the right to demote an employee by signing additional agreements, especially if he has at least one mistake. This state of affairs can also lead to voluntary dismissal.

• Introduction of financial liability of a specific employee.

This is also the responsibility of management. For example, if an employee has to work with some equipment, the safety of which is almost impossible to keep track of.

Financial liability will involve covering damage at your own expense, which will not suit every employee. For him, this will be a reason to resign of his own free will.

The most correct and legal way would be to identify errors on the part of the employee. Violations must be recorded in the personal file, which will allow it to be used against the employee in the future.

Otherwise, the above methods cannot be considered correct, since they involve pressure on a person, in particular psychological.

Thus, how to fire an employee legally and without his desire is a question that baffles most employers. The best option is to come to an agreement with the employee, avoiding scandals. If this is not possible, then management must independently bring the situation to such a point that the person leaves, or grounds for dismissal under the article arise.

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What do all employees need to know?

For every conscientious person, it is important not only to retain his job, but also to preserve his reputation. To avoid serious problems in the future at the enterprise, you should carefully study the provisions of the employment contract from the moment you are hired.

Attention should also be paid to internal regulations. Carefully study the general rules of labor regulations at the enterprise, clarify the conditions and terms of payment of vacation pay, find out whether employees are issued a pay slip for wages, and also clarify the methods of its issuance (cash, transfer to a bank card, payments in envelopes, bonuses, etc.) .

Many people, when signing an employment contract, neglect to familiarize themselves with its provisions, which is fundamentally wrong, since knowledge of their rights and responsibilities within the workforce of a particular enterprise will allow them to resolve many controversial issues if there is a high probability of dismissal.

Every person should know when his working day begins and ends, the procedure for going on vacation and its payment, etc. If these clauses are missing from the contract or are not clearly formulated, this may cause certain difficulties when asserting your rights when reducing staff (employee).

Absence from work for a valid reason must be documented. To do this, you will need a certificate from a medical institution confirming a visit to a doctor or written confirmation of your stay with government agencies. In the absence of permitting documentation, the employee is obliged to write an explanatory note no later than 48 hours from the moment of the recorded violation, which is a prerequisite for dismissing a person. After this, the employer can fire the employee within 30 calendar days from the moment the violation is discovered. If they violate the deadlines, the employee will be reinstated in their previous position.

If an employee is accused of stealing the property of the enterprise or employees, or damaging it, then this fact can be confirmed by the judicial authorities. Often, the management of organizations literally resorts to blackmailing employees in order to fire them from their jobs (of course, not legally). If an employee has not committed a crime in the workplace and his guilt has not been proven, then he cannot be fired. The employer may offer to leave by agreement of the parties. Here you should decide what is preferable - your own reputation or your position.

If an employee is accused of showing up to work under the influence of alcohol or drugs, then the fact of his inadequacy still needs to be proven in order to be fired.

Please note: for example, you are taking alcohol-based medications, which does not constitute conscious consumption of alcohol. In this case, it is necessary to obtain from the doctor an appropriate document indicating the specifics of the treatment. And in order to fire a person from work, he must undergo a medical examination, the results of which will prove involvement in taking drugs or alcohol.

Involuntary dismissal

Here we analyze the reasons for dismissal, which are associated with the employee’s reluctance to accept the changed working conditions. In this case, we are not talking about the employee’s desire to leave his position; he is forced to do so by circumstances that he has no power to change. These could be:

• offer of vacant positions due to changes in health status (offers may be unacceptable for the employee, although legal from the point of view of the Labor Code - Parts 3 and 4 of Article 73);
• significant changes in the terms of the employment contract without the employee’s consent (Part 4 of Article 74 of the Labor Code of the Russian Federation);
• reluctance to change the location of work if the employer moves to another location;
• refusal to work under another employer, i.e. when there is a change of owner or jurisdiction of the organization (Article 75 of the Labor Code of the Russian Federation).

IMPORTANT INFORMATION! The agreement or refusal of an ordinary employee in the last point is a key point, since for directors, their deputies and the chief accountant it can become an unconditional reason to leave their position at the initiative of the new employer. All other categories of employees during a change of ownership or reorganization do not have the right to be dismissed on this basis, unless they refuse to continue working.

Single gross violation of labor duties

Clause 6 of Article 81 of the Labor Code of the Russian Federation contains an exhaustive list of one-time gross violations of labor duties by an employee, for which the employer has the right to impose penalties on the employee in the form of dismissal. Such offenses, firstly, include truancy (subparagraph “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation). It is understood as absence from the workplace without good reason during a working day or shift, regardless of duration, as well as in the case of absence from work without good reason for more than four hours in a row. Dismissal for absenteeism is possible only if there is the employee’s fault and unjustified reasons for absence from the workplace. The responsibility for finding out the reasons for absenteeism rests with the employer. He must also independently and objectively determine whether the reason for the employee’s absence was valid or not. For example, the absence of railway tickets at the ticket office is a valid reason for absenteeism (determination of the RF Armed Forces dated March 30, 2012 No. 69-B12-1).

Secondly, the appearance of an employee in a state of alcohol, narcotic or other toxic intoxication (subparagraph “b”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation). This condition can be confirmed by a medical report, witness testimony, CCTV camera recordings, etc. In this case, the employer is obliged to follow the procedure for removing the employee from work (paragraph 1, part 1, article 76 of the Labor Code of the Russian Federation). Suspension from work means the suspension of labor relations between an employer and an employee until the circumstances that served as the basis for the suspension are eliminated. Also, no wages are paid during this period. The decision on suspension is formalized by an order, which indicates the full name and position of the employee, the circumstances that served as the basis for the suspension, documents confirming the existence of grounds for suspension (acts, memos, medical report, etc.), and the period of suspension. The employee should be familiarized with the order against signature. If he refuses to familiarize himself, then it is necessary to draw up a corresponding act.

Thirdly, disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (subclause “c” of paragraph 6 of Article 81 of the Labor Code RF). On this basis, only those employees who have agreed not to disclose such information can be dismissed. Therefore, in the employment contract with an employee who will be allowed to know the secret, a condition on its non-disclosure should be written down. In addition, the employer should collect evidence of the employee’s disclosure of secrets, as well as evidence that this information relates to a secret protected by law. The employer may demand from an employee who disclosed an official or commercial secret compensation for all losses incurred.

note

When reducing staff, the employer is obliged to comply with the legally established priority. Thus, those workers whose labor productivity and qualifications are higher have an advantage. If these parameters are equal, then preference should be given to family members and those in whose family there are no self-employed workers, persons injured or occupational illness at work, disabled people, and employees with advanced qualifications as directed by the company.

The category of gross violations includes, so to speak, a violation such as theft (including small) of someone else’s property at the place of work, embezzlement, intentional destruction or damage (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). Other people's property means any property that does not belong to the employee who committed the theft. In this case, the employer, even if there are guilty actions, will not be able to quickly impose a penalty on the employee in the form of dismissal. This is due to the fact that the commission of theft must be established by a court verdict that has entered into legal force or by a decision of a judge, body, or official authorized to consider cases of administrative offenses. Thus, the month period provided for the application of a disciplinary sanction will be calculated only after the entry into force of a court verdict, decision of a judge, body, or official that considers cases of administrative offenses. It is worth noting that if the court makes a sentence that provides for punishment in the form of deprivation of work, or it precludes the continuation of the previous work activity, then the employer is obliged to terminate the employment contract on the basis of: sentencing the employee to a punishment that precludes the continuation of the previous work, in accordance with the court verdict, entered into legal force (clause 4, part 1, article 83 of the Labor Code of the Russian Federation).

Finally, the basis for dismissal is a violation of labor protection requirements if it entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences (subparagraph “e”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). Violation of labor protection requirements must be established by the labor protection commission or the labor protection commissioner. In this case, a labor safety commission must be created in compliance with the requirements of Article 218 of the Labor Code of the Russian Federation.

In any of these situations, the employer is obliged to apply a penalty in the form of dismissal in the manner established by Article 193 of the Labor Code of the Russian Federation.