All HR specialists inevitably face the need to fire staff from time to time in their work. The reasons for employees leaving their jobs can be very different. Sometimes this happens of the employee’s own free will, sometimes on the initiative of the employer or due to some objective circumstances.
Is it possible to fire an employee who hid information about his disability upon hiring ?
But regardless of the reason for the dismissal, every personnel officer must clearly know the letter of the law and follow it in full accordance with the current situation. In this material you will learn what the law says about dismissal and what are the differences between dismissal at one's own request and dismissal at the initiative of the employer.
See on a separate page: Completed sample and blank form T-8
What does the law say about dismissal?
It is impossible to list all the possible reasons for ending a relationship with an employee; they are varied just like life itself. However, there are only a few legal grounds for dismissing an employee:
- if the employee expressed his own desire;
- at the initiative of the employer due to the poor quality of the work performed by the employee or the services provided to him, as well as due to the employee’s failure to comply with the labor discipline established within the company;
- on staff reduction;
- based on the results of certification, if the employee was unable to confirm his qualifications;
- by mutual agreement of the parties.
Let's look at these situations in more detail.
Is it possible to change the date of dismissal of an employee ?
Dismissal at will: procedure
As practice shows, the most effective and useful employees for companies leave their jobs mostly of their own free will. By law, the employer does not have the right to keep them by force, however, if it is expected that finding a replacement will be problematic, it is better to try in some way to motivate a valuable employee to stay. But if, nevertheless, dismissal at the initiative of an employee is inevitable, the following procedure should be followed:
- An employee leaving the company is required to write a written statement of resignation from work of his own free will. The employer must be notified in advance, that is, at least two weeks before the desired dismissal. However, if both parties do not object, then the employer has the right to dismiss the employee directly on the day the application is written. If the employer wants the employee to work for two weeks, then during this period the employee must familiarize his successor, if there is one, with the scope of responsibilities;
- During the two-week work period, the HR department must prepare a number of papers, including filling out the document issuance log and making relevant entries in the employee’s work book;
- The accounting department of the enterprise is obliged to make a final settlement with the employee, including funds for unused vacation in the settlement amount.
How to dismiss employees due to staff reduction ?
If all these stages are carried out correctly and without delay, then there should be no complaints either from the dismissed person or from interested government bodies, for example, the labor or tax inspectorate.
Stages of dismissing an employee from his position
Step 1: Acceptance of resignation from the employee
In the application, the employee indicates the full name of the manager, as well as his full name, in addition, the date, organization and reason are also indicated (at his own request). The signature of both the person leaving and the boss must be present. The application must be submitted two weeks from the date of dismissal.
If the initiative comes from the employer, then he himself prepares all the documents. In this case, the employee does not need to write a statement.
Step 2: Registration of application
It can take place both in the secretariat and directly in the human resources department of the organization. The countdown to dismissal begins. Management may require the employee to work the required two weeks before dismissal if the employee has not taken sick leave or vacation, or to release the employee immediately if a replacement is found quickly.
Step 3: Order of dismissal
This order is issued according to the unified government form No. T-8 , it indicates the full name of the boss who is dismissing the employee, the name of the organization, the details of the dismissed employee, the reason for dismissal (termination of the employment contract at the initiative of the employee, according to the seventy-seventh article of the Labor Code of the Russian Federation), date, signatures and other data (if needed).
Step4: Order registration
Such a document must be registered in the organization’s personnel department in a special journal. Typically, a copy is placed in the personnel file of the departing employee, so that if something happens, the document can be quickly found.
Step 5: Familiarization of the employee with the order
After the document has been drawn up, signed and properly registered, the employee is familiarized with the order of his dismissal under his signature.
In addition to the signature, the date when the employee was familiarized with the document is also indicated.
If the employee refused to sign the order or it is impossible to find him, a special mark is placed in the document about the refusal or impossibility of finding the employee (according to the eighty-fourth article of the Labor Code of the Russian Federation). If a person refuses to sign, a special act is drawn up, which must be secured with four signatures (three witnesses and the person resigning).
Step 6: Drawing up a calculation note
At this stage of dismissal, an employee of the HR department draws up a special document, which indicates the days of vacation or sick leave unused by the employee or, on the contrary, days that need to be additionally worked. This note is drawn up for further calculation of all payments to the resigning employee that will be made in the future.
Step 7: Paying the employee
At this stage, it is very important for the employer and the organization to comply with the deadlines established by law.
Otherwise, the company may have problems with the Labor Inspectorate. The calculation itself is made on the last day before the official dismissal or on the day when the employee comes for the payment if he was on vacation on the last day of work at the enterprise.
Step 8: Recording the dismissal in the organization’s accounting documents
Employees of the personnel department fill out the necessary documents and formalize the dismissal of the employee in the accounting documentation of the enterprise (account book, personal card of the employee). The employee himself certifies this registration with his signature.
Step 9: Issuance of the employee’s work book
The resigning employee receives payments and his work book on the last day of work or, in case of absence, the next day when he appears. Delays in issuing this document to the employee are illegal on the part of the employer , so usually there are no delays.
If an employee does not show up for payment and work book on the last day of work, the employer must notify the resigning employee in writing that he must appear for payments and documents (by mail or in an accessible manner). In case of refusal, a special act of refusal to receive a work book is drawn up, which must be signed by three witnesses and the person resigning. If the latter refused, another act of refusal to sign is drawn up. Such acts will be needed when resolving legal disputes.
Step 10: Confirmation of receipt of the employee’s work book
This happens in a special book for the movement of labor books (form of the Ministry of Labor of the Russian Federation No. 69) by leaving a signature.
Step 11: Issuance of a special salary certificate
Occurs in the personnel department or accounting department. Sometimes the employer himself initiates the issuance of this document, and sometimes the employee has to make an independent request to obtain a certificate.
The state pension co-financing program is a significant contribution to the social security of pensioners. Indexation of pensions in 2016 - full information on this topic is located in our article.
Unused vacation and its compensation are described in our article.
Dismissal at the request of the employer
It happens that an employer unilaterally decides to get rid of a particular employee. The justification for such actions can be:
- reduction of staff . As a rule, such decisions are made for economic reasons to reduce the wage fund and payments to the state budget. The reason for staff reduction may also be pressure from competitors, a merger with another enterprise, or acquisition by a more powerful commercial structure. Read more in the instructions for dismissing an employee due to staff reduction;
- inconsistency with the position held is another reason to part with an employee at the request of the employer. If a person cannot cope with the functions assigned to him, the organization has the right to dismiss him with such wording. In addition, sometimes such dismissal is triggered by the commission of some serious official violation (drunkenness in the workplace, disobedience to superiors, theft, falsification of documents, etc.). It should be said that such measures should be resorted to carefully, since such entries in the work book can seriously harm the future career of the dismissed person;
- liquidation of a company or termination of activities by an individual entrepreneur is another completely legal way for an employer to dismiss personnel.
Whatever the reason for the employer’s dismissal of an employee of his own free will, he must warn the dismissed person in writing in advance, no later than two weeks , about the upcoming event, as well as carry out all the necessary personnel and accounting procedures. In particular, to comply with the law, a specialist in the enterprise’s HR department is obliged to make an appropriate entry in the employee’s work book, and the accounting department is required to calculate wages for the time actually worked, including the amount for unused vacation in the final calculation.
Calculation of personnel upon liquidation of an enterprise
If an organization ceases to exist, staff are notified two months in advance. In this case, the dismissal of personnel occurs in accordance with clause 1, part 1, art. 81 of the Labor Code of the Russian Federation.
Employer Responsibilities:
- list wages and compensation;
- list average monthly earnings (severance pay);
- retain the employee’s average monthly earnings until he is hired, if this period does not exceed 2 months (maximum 3 months if the dismissed person applied to the central employment service within two weeks).
If personnel are reduced due to the liquidation of the company, additional funds are not paid to the following persons:
- those on vacation or sick leave;
- union members.
Amicable dismissal: agreement of the parties
Quite often, in order to fire a weak employee who does not cope well with his duties, employers resort to the wording “dismissed by agreement of the parties.” This neutral designation allows you not to spoil the employee’s reputation for future employment and save the employer’s nerves. However, the agreement may be caused by other circumstances. However, regardless of the reason for dismissal by agreement, in this situation the following procedure should be followed:
- if the initiative was expressed by an employee , then he must notify his employer about this in writing, indicating the reasons for dismissal, as well as his requirements;
- if the employer acts as the initiator , then he is also obliged to inform the employee in writing about his intentions, citing the grounds and conditions, as well as the expected date of dismissal by agreement.
After informing the other party about the desire to terminate the employment relationship by consent, it is necessary to draw up the text of the agreement. It can be written in any form, but it must indicate the fact of voluntariness and reciprocity, as well as the conditions of dismissal and the date.
Violation of the law upon dismissal
Often, persons dismissed from office believe that they were deprived of their position illegally. In practice, this violation awaits every second person. The most common method of dismissal is a statement of one's own free will, written under pressure. In many cases, it is not possible to prove a violation of an employee’s rights. If you are sure that the dismissal is illegal, you can contact the following structures:
- to labor authorities at the place of work (complaints are accepted and considered within 30 days);
- to the judicial authority at the location of the enterprise (complaints are accepted and considered within 30 days in accordance with the law);
- to the prosecutor's office.
All dismissal rules, responsibilities of workers and employers are set out in Labor Law.
Dismissing an employee while he is on vacation
Sometimes illiterate employers try to take advantage of an employee’s vacation in order to fire him. Such actions are illegal, because, as the Labor Code of the Russian Federation states, the employer does not have the right to dismiss an employee who is on vacation of his own free will.
But exceptions are possible: if an enterprise or individual entrepreneur has ceased its activities, then the dismissal of a vacationer is completely legal.
It is worth noting that completely opposite situations happen much more often: an employee goes on vacation without intending to return to his previous place of work. In this case, he can, even while on vacation, write and submit to the personnel officer a letter of resignation of his own free will. As is expected in such cases, this must be done two weeks before the expected termination of the employment relationship. In this case, the employer has no right to demand that the employee actually work for two weeks.
Thus, in order to fire an employee, you need to act differently in different situations. In order to avoid mistakes that could lead to administrative punishment and penalties, the employer or its representatives must be fully aware of the Labor Code, the procedure for conducting personnel procedures, and also carefully observe all the rights of employees.
Removal from office by mutual consent
In this case, an agreement to terminate the employment contract is drawn up. It specifies the terms of dismissal and its conditions. The employee can also indicate in the application the reason according to the agreement of the parties - this will be easier.
Care under a mutual agreement with the company management:
- The worker is free to count on a completely reasonable payment of an unlimited amount. But it must have documentary evidence, otherwise the calculation will be made in accordance with the requirements of the Labor Code of the Russian Federation.
- The employer has a guarantee that the employee will not withdraw the application, since this requires mutual consent of the parties. He can also fire him, even if he is on vacation or sick leave.
How much time you need to work after writing your application is decided by management.
If the settlement occurs at the end of the employment contract, the enterprise’s human resources department is obliged to notify the employee about this three calendar days in advance.
