Article 81 of the Labor Code: the essence of the law, nuances and pitfalls

The Labor Code of the Russian Federation lists a complete list of grounds for termination of an employment contract at the initiative of the employer. All of them can be divided into two groups: through the fault of the employee and without it.

But in any case, when dismissing an employee, the employer must adhere to the procedure established by law. Violation of regulations can even lead to criminal liability.

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Under what article is dismissal initiated by the employer?

Unlike a hired employee, who, in accordance with the text of Article 80 of the Labor Code of the Russian Federation, can demand termination of the employment agreement at any time and, having worked the required two weeks, receive a payment, the management of the organization, when dismissing an employee, is obliged to indicate a specific reason. The grounds for terminating an employment contract initiated by the employer are listed in Article 81 of the Labor Code of the Russian Federation. It is not by chance that the grounds are enshrined in law.

Information

In the “employee-employer” tandem, the first is a priori considered the more vulnerable party. Therefore, reflection in the Labor Code of the main reasons for dismissal is a universal protection of the interests of hired employees.

Early termination of an employment contract at the initiative of the employer

The Labor Code of the Russian Federation also provides for the possibility of early termination of an employment contract, which occurs at the initiative of the employer. This is regulated in Article 81 of the specified legal acts. Thus, the employer can terminate a TD that was concluded for a certain time period before its expiration. For this purpose, all the grounds listed in Art. 81.

In general, the procedure for early termination of a contract with employees does not differ from the classic regulations. However, the employer must take into account preferential categories of citizens who cannot be dismissed early. These include:

• pregnant women (unless the dismissal is caused by the liquidation of a legal entity or individual entrepreneur);
• women with children under 3 years of age;
• single mothers who are dependent on a young child under the age of 14 or a disabled child under the age of 18, etc.

Thus, to summarize, we conclude that termination of a trade agreement with employees at the initiative of employers is a rather complex legal procedure that requires good legal knowledge on the part of management.

Author of the article

Liquidation of an organization

The procedure for closing an organization is defined in Articles 61-63 of the Civil Code of the Russian Federation. The grounds for liquidating a company are outlined in Article 61 of the Civil Code of the Russian Federation. They act as:

• Judgment;
• The decision made by the founders of the enterprise.

When a company closes, all workers lose their jobs. However, in this case, employees have certain guarantees, since the law specifies that dismissed employees should be the first to receive a payment with compensation for days worked.

Reduction

At the initiative of the employer, the list of places at the enterprise may be reduced. Employees holding positions are subject to calculation. In this case, dismissal is carried out according to a certain gradation: first of all, employees with the least qualifications and productivity among those occupying a certain position, for example, managers, are removed from the workplace. But if workers are equal according to these criteria, then Article 179 of the Labor Code of the Russian Federation establishes a preferential right to retain a place for the following categories:

• Persons with more than two dependents;
• Breadwinners are the only ones receiving income in the family;
• Employees who were injured during their work in this company;
• Disabled combatants and WWII;
• Employees undergoing advanced training conducted at the initiative of the employer.

Reasons for dismissal

There are main reasons why an employee is fired. Care at the employee's own request. This option provides that a person is fired without fault due to personal circumstances.

Dismissal of personnel at the initiative of the employer. This option has special reasons, which are also spelled out in the labor code and are discussed when applying for a job. The possibility of dismissal due to hostility, competition and other human factors is excluded. This is wrong and has no legal basis.

Employee mismatch for position

If an employee does not have the skills necessary to work in the given position, he may also be subject to dismissal. However, before signing an order in accordance with which the employee will be calculated, the employer must convene a commission to conduct certification designed to confirm the incompetence of the employee.

For your information:

The inspection is usually carried out once a year, however, if insufficient knowledge or defects in work are detected, it can be initiated ahead of schedule.

Gross violation of labor duties

The category of gross violations according to Article 81 of the Labor Code of the Russian Federation includes:

• Failure to maintain secrets protected by law;
• Absenteeism;
• Direct violation of established labor protection rules;
• Appearing at the workplace in a state of intoxication with alcohol or drugs;
• Causing damage to property of the institution that does not belong to the employee, its appropriation, embezzlement.

Attention

When such violations are recorded, the law allows the employer to immediately pay the employee.

Other reasons

In addition to the above reasons, an employer may dismiss on the following grounds:

• Change of owner of the organization’s property;
• Guilty actions of an employee involved in servicing valuables or money turnover, leading to loss of trust;
• Amoral behavior;
• Providing false information and documents;
• An unjustified decision of a manager or other official, as a result of which damage was caused to the property values ​​of the company or its branch;

Some other reasons for dismissing an employee are also reflected in other provisions of labor legislation. An additional list is established by Articles 71, 278, 312.5, 336 of the Labor Code of the Russian Federation.

For your information:

Also, other actions leading to dismissal may be indicated directly in the employment contract.

The procedure for dismissing an employee at the initiative of the employer

In order for the employee calculation procedure to be considered justified, the employer must comply with the requirements of the law and consistently complete all stages of dismissal.

Preparation of necessary documents

Dismissal must be confirmed by an appropriate document. Depending on the dismissal of an employee from a position, the following documents may be used:

Issuance of an order

Based on a document explaining why the employee is leaving, an order is issued to pay the employee. The paper is drawn up in accordance with the mandatory form adopted by the Government of the Russian Federation - No. T-8. If we are talking about the calculation of several employees, an order drawn up according to template No. T-8(a) is used. The document includes:

• Full name of the head;
• Company details;
• Information about the employee;
• Reason for calculation;
• Date of preparation.

Attention

The order is certified by the signature of the immediate director of the organization or his authorized representative.

Registration of an order

The completed dismissal document is transferred to the HR department of the enterprise. Its details are entered into a special accounting book. A copy is made of the paper and placed in the personal file of the dismissed employee. Another copy of the document can be provided directly to the employee.

Familiarization of the employee with the order

Article 84.1 of the Labor Code of the Russian Federation contains a provision on the mandatory provision of a dismissal order to the employee for review. In this case, the latter must sign and indicate the date of reading the paper.

If the employee ignores the need to sign the order, or his whereabouts are unknown, a corresponding mark is placed on the paper.

Important

If the employee does not agree to endorse the document, then a written refusal is drawn up, which is certified directly by the person being dismissed and three witnesses.

Formation of a note-calculation

Upon dismissal, the employee claims to receive compensation payments for the unused vacation period, as well as sick leave. They are calculated on the basis of a special calculation note, which reflects unpaid days or additional time that needs to be worked.

Direct employee payment

On the day of official dismissal, the employer must pay the employee the full amount of money due, and also hand over the work book in his personal file. A similar provision is recorded in Article 84.1 of the Labor Code of the Russian Federation.

Creating a settlement record

Information about dismissal is reflected in the accounting documentation of the enterprise, as well as in the employee’s personal card. Entries are made by personnel department employees with mandatory certification by the signature of the dismissed person.

Cases of termination of an employment contract at the initiative of the employer

All of the above cases, when it is possible to dismiss an employee on the initiative of the employer, are associated with numerous difficulties, since the legality of this procedure must be supported not only by the dismissal order and the corresponding entry of information into the employee’s personal work book, but also by additional documents.

For example, if the procedure for liquidating an enterprise is put into practice, the company’s management must draw up a report, which is sent to the Employment Service. This condition is specified in the Federal Law No. 1032-1. In addition, employees 2 months before the liquidation of the company must receive written notice of dismissal, which is prescribed in Art. 180 Labor Code of the Russian Federation.

If we consider cases where employees are fired due to professional incompetence, then in this situation the manager’s decision to dismiss must be supported by a report on the certification carried out within the organization, as a result of which this fact was revealed.

Moreover, before directly dismissing an employee, the employer must offer the worker another position that will correspond to his professional skills. And only if there is a refusal on the part of the employee, an order to terminate the TD is issued.

If the basis is the employee’s failure to fulfill his official duties, then the termination of the employment contract must be justified by the presence of official acts or memos, which are accompanied by an explanatory note written by the offending employee. In addition, orders must be additionally provided that contain a reprimand or reprimand to the employee.

Making an entry in the work book

The wording of the reason for dismissal entered into the employee’s work book directly depends on the grounds provided for in Article 81 of the Labor Code of the Russian Federation. In general it looks like this:

1. First, the fact of calculation itself is displayed. The entry must begin with the word “Fired.”
2. The following is the basis for dismissal. The wording must correspond to the reason indicated in Article 81 of the Labor Code of the Russian Federation (for example): “in connection with the liquidation of the enterprise”, “in connection with the inadequacy of the position held”.
3. Then the regulatory framework is entered, that is, the clause of the article containing the specified reason for the calculation. For example, paragraph 1 of Article 81 of the Labor Code of the Russian Federation.

Grounds, reasons and conditions for termination of an employment contract at the initiative of the employer

Termination of an employment contract at the initiative of the employer can be carried out at enterprises of various types and areas of activity. The full list of grounds is recorded in Article 81 of the Labor Code of the Russian Federation and includes the following reasons:

• termination of an employment contract at the initiative of the employer becomes possible if a legal entity or individual business is liquidated.
• The employment contract becomes invalid if the basis is the need to reduce staff.
• Termination of a fixed-term employment contract at the initiative of the employer is also allowed if, based on the results of the certification, the employee has not confirmed his professional competence and cannot perform work according to his position.
• It is also possible to terminate an employment contract in a situation where there has been a change in the owner of property owned by the organization.
• The procedure for terminating the contract will also be legitimate in a situation where the employee does not fulfill the official duties assigned to him by the employment agreement.
• An employee may be dismissed if the head of the organization records a gross violation of labor discipline or job description (attending to work under the influence of alcohol or drugs, theft of property, disclosure of personal data or trade secrets, etc.).
• The employment contract will be terminated by management even if the employee has lost his trust due to committing guilty actions when working with material assets, including the organization’s monetary assets, as well as taking into account other grounds that are recorded within the framework of Article 81 of the Labor Code of the Russian Federation.

It should be noted that dismissal of an employee at the initiative of the employer is a rather complex procedure that requires compliance with many nuances. Only full compliance with the legislative order will allow us to talk about the legitimacy of termination of the employment contract, and not about abuse of authority on the part of management and violation of legislation in the field of labor relations in the territory of the Russian Federation.

Terms of dismissal. Is work needed?

If the justification for dismissal is closure of the company or layoff, management must notify the employee in advance. It is legally established that notification of the liquidation of an organization and layoffs must be made 2 months before dismissal.

When there is a change of staff due to the arrival of a new director, the dismissal of employees hired by the predecessor is carried out within a three-month period, calculated from the date the current management takes office.

Information

Unlike cases of settlement by agreement of the parties or at the request of the employee himself, dismissal at the initiative of the employer does not entail the need to work off. In fact, the day of termination of the employment contract is considered the employee’s last working day.

The procedure for terminating an employment contract at the initiative of the employer

If the above conditions and grounds for termination of the employment contract occur, then the procedure for terminating the agreement between the employee and the employer can be initiated. The procedure for terminating an employment contract at the initiative of the employer involves going through several main stages:

• if, for example, the liquidation of a company is a condition for termination of a trade agreement, then a mass dismissal of the team is assumed. Therefore, 3 months before the completion of this legal fact, the management of the enterprise must notify the representatives of employees, in particular, the Primary Trade Union Organization. This is stated in Art. 180 Labor Code of the Russian Federation.
• Next, information about the liquidation of the company is sent to the Employment Service, supported by additional documentation that makes the dismissal procedure legitimate.
• At the third stage, the company's management must notify the workforce represented by each employee about the upcoming liquidation of the company. Moreover, such notification must be made 2 months before the closure of the enterprise (see Article 180 of the Labor Code of the Russian Federation).
• After this, an order is issued to liquidate the legal entity or individual business 2 months before the dissolution of the company.
• On the day when the official dismissal of an employee is expected, an order is issued to terminate the employment contract for each employee, the fact of reading of which is certified by the employee’s signature.
• Based on Articles 140 and 178 of the Labor Code of the Russian Federation, an employee is paid a monetary benefit on the day of dismissal: wages, bonuses, money for sick leave, unpaid vacation, etc.
• After this, an entry is made in the employee’s personal work book and the document is issued in person.

The procedure for terminating an employment agreement on the initiative put forward by the employer, taking into account other grounds, differs minimally from the regulations presented above. The only difference is the documents that may be additionally required in the process of terminating the employment contract, as well as the deadline for the employee’s dismissal.

Payments due upon dismissal

In case of dismissal initiated by the management of the organization, in accordance with Article 127 of the Labor Code of the Russian Federation, it is first necessary to compensate for the employee’s vacation days that were not used during the validity period of the employment contract. A full payment is also made to the employee for the time worked.

Further payments depend on the reason for dismissal. Employees whose employment contract is terminated due to the closure of an organization or due to a reduction in staff are eligible for certain compensation.

Article 178 of the Labor Code of the Russian Federation establishes the need to transfer to the employee an amount equal to the average monthly earnings. In the future, the dismissed person can apply for an average salary within 2 months if he was unable to find a job during this period of time.

Period for termination of an employment contract at the initiative of the employer

The period during which the employment contract is terminated depends on the grounds that necessitate this procedure, in particular:

• if the basis is the liquidation of the company or the reduction of staff positions, then the employer must notify the employee 2 months before the official dismissal;
• if an employee does not confirm his professional competence based on the results of certification, then the company management must notify the person of the upcoming dismissal 1 calendar month in advance;
• if the basis is a change of owner, then the company management must announce the decision to terminate the employment relationship to the employee 3 months before the proposed changes;
• if an employee has repeatedly committed violations of labor discipline or job descriptions, then from the moment the person commits the next offense the employer has 1 month to make a decision on his dismissal;
• If the fact of theft or disclosure of confidential information is established, then the severance of the employment relationship is possible after the court makes a decision on the person’s liability.

Employees who cannot be fired

The employer will not be able to pay off all employees at will. The following citizens are legally protected from dismissal:

• Pregnant women, as noted in Article 261 of the Labor Code of the Russian Federation.
• Single fathers and mothers who have a child under 14 years of age. And in the case of disabled children – 18.
• Minors. To formalize the dismissal, you will need to notify the Commission on Minors' Affairs and the Labor Inspectorate and obtain consent from both organizations, as stated in Article 269 of the Labor Code of the Russian Federation.
• Employees on vacation.
• Employees who have issued sick leave.

Important

In all cases there is an exception. Dismissal can be made if the company ceases to exist.