What are the articles on dismissal? Why an employee can be fired according to the law - all the reasons and design features. Dismissal due to violation of labor discipline

The number of requests to lawyers on labor issues is growing from year to year. On the one hand, this is a positive trend, since workers increasingly want to solve problems within the framework of the law. On the other hand, doesn't this mean that employers are more likely to neglect workers' rights?

Subjects of labor law

The law is designed to protect the interests of everyone. But right always gives rise to responsibility. This point is very important for everyone to know, since the protection of rights depends on the degree of responsibility. The right to work is one of the fundamental rights of a modern citizen of the Russian Federation. It is enshrined in the Constitution of the Russian Federation.

The Labor Code is relevant only for subjects of labor law. They are individuals and legal entities who have labor relations with each other. Labor relations must be recorded in writing. For this purpose, there is an established form of employment contract.

It should be taken into account that if a citizen works unofficially, that is, without concluding an employment contract and without registration with the state, then it is almost impossible to protect his rights. Subjects have time limits. Thus, an individual becomes a subject of labor law only upon concluding an appropriate agreement with the employer. From the contract you can learn about such key points as the hiring procedure, the provision of vacations, the calculation of wages and under what clauses they can be fired from work.

Order

The employer does not have the right to dispose of employees at its own discretion. Each of his decisions must be justified by specific articles. Likewise, an employee cannot only care about his or her rights. He has responsibilities declared in the employment contract. If some of the employer’s requirements go beyond the scope of the contract, then these issues should be discussed in a timely manner, and decisions should be made in writing. There are often cases when a subordinate himself can provoke the dismissal of an employee under an article. Next, we will consider the reasons why this outcome is possible.

Translation within the company

In some cases, the manager may offer the employee another position in his organization. The reasons may be different: closure of a previous position, mismatch of qualifications, or others. gives the manager this right.

Moreover, the new position may be less prestigious, with a lower salary level or involve a greater workload. The employee has the right to choose whether to accept the offer or refuse. But before you refuse, you should find out under what articles they can be dismissed from work, since it is Article 81 that gives the employer such a right.

Mismatch of qualifications

Any work in an enterprise requires certain knowledge, skills and abilities. When applying for a job, it is not always possible to verify their authenticity. Everyone knows the reality that you can buy any document. And a resume certainly has no legal force. The employer has the right to claim an acceptable quality of work, since he pays for this work. Inconsistency with the professional level of the position held is another reason to dismiss from work under Article 81 of the Labor Code of the Russian Federation.

The procedure for checking compliance and making decisions is regulated by the third part of this article. A mandatory procedure is the creation of a special commission, which should include:

• the immediate supervisor of the applicant for dismissal;
• head of HR department;
• director of the company.

The commission conducts certification orally or in writing. The list of tasks should not go beyond the specialization of this employee. For example, if the test taker is an accountant, then he does not have to take certification in legal or marketing issues.

Legality of certification

Based on the results of the certification, a protocol is drawn up. Based on the protocol, an order from the manager is formed. If an employee believes that the certification was carried out dishonestly, for example, questions were asked that were not related to his qualifications, then he has the right to challenge the decision of the commission. It is important to take this point into account, since such a method can be used as an intentional disqualification or due to the malicious intent of another official. And if you are fired from your job under Article 81, then your future career becomes a big question mark.

If he disagrees with the opinion of the commission, the employee has the right to file a complaint with the Labor Inspectorate or file a claim with a judicial authority. It is possible to submit parallel complaints to both authorities. The supervisory authority first checks the results of the certification and makes an appropriate decision.

Violation of discipline

When studying the question of under what articles one can be fired from one’s job, one should not discount objective factors. Irresponsible employees, neglect of their own responsibilities, irrational use of company resources are quite common occurrences in the company. It is important to understand that every manager wants the full contribution of employees in the development of the enterprise, especially if there are all the conditions for this. If they are not there, then you should raise the job description for each category of workers and remind the manager of its provisions. By law, it must provide workers with a safe and comfortable working environment.

Violation of labor discipline can be of a different nature. In occasional cases, you may receive a warning. If there is no effect, then the manager has a large choice of solutions:

• Reprimand.
• Written warning.
• Dismissal under articles of the Labor Code.

For example, according to the fifth part of Article 81 of the Labor Code of the Russian Federation. And if there are good reasons, they must be documented. For example, in case of illness, a sick leave certificate is issued.

Truancy

If the employee cannot provide documents about the reason for missing a working day, then all these days are qualified as absenteeism. In case of episodic phenomena, the manager may require a written explanation. The respectability or disrespectfulness of the reason is determined by the manager.

But what about cases when circumstances force you to be absent from work for several days? How to prevent dismissal for absenteeism under the Labor Code of the Russian Federation? This point is also reflected in the legislation. At least 2 days before the expected date of absence, you must write a statement in two copies. One is provided to the manager. If he doesn’t mind, he puts a note “I don’t mind.” This approach is legal and will protect the employee from dismissal for absenteeism under the article of the Labor Code of the Russian Federation.

This document is sent to the HR department. At the end of the reporting period, when payroll needs to be accrued, the HR employee will mark these days as excused absences. In this case, the employee does not face any penalties. True, these days will not be paid.

Lateness

On what other grounds can you be fired from your job? According to the Labor Code of the Russian Federation, the standard working time per week is 40 hours. Start and end times may vary depending on the type of company activity. 40 hours is the total number of hours worked. The length of working time at a particular enterprise is regulated by internal documents.

All residents of big cities have one common problem - the problem of moving around the city. The majority of the working age population has a standard work schedule - starting in the morning and ending in the evening, which creates huge obstacles to the movement of all types of transport. In such cases, being late for work is a completely natural result.

But employers do not agree to accept this situation. Each company has its own ways of dealing with lateness. But labor legislation states that absence from the workplace for more than 4 hours in a row is already considered a gross violation of discipline. If this happens occasionally, the manager may limit himself to a reprimand or warning. There are also punitive measures - disciplinary sanctions. But the habit of regularly being several hours late is already a reason to choose drastic methods.

Amoral behavior

Few people know about Part 8 of Article 81 of the Labor Code of the Russian Federation. According to experts, this clause is one of the controversial provisions in the law. Perhaps for this reason this article is not used so often. Dismissal for immoral behavior applies to specialists who are entrusted with high intellectual tasks. This:

1. Teachers
2. Teachers
3. Kindergarten teachers
4. Other persons related to the educational system.

It is important to take into account that such an article cannot be applied to persons working in educational institutions, but not directly engaged in educational and educational activities.

Drunkenness in the workplace

The corresponding entry into the employment record and dismissal under the article can also occur due to bad habits. The law contains several important guidelines regarding dismissal under this article. For example, the fact of drinking alcoholic beverages and being drunk directly at the workplace is mandatory. This must be recorded in such a way that it can be proven later.

The fact of drinking alcohol in itself is not a reason for registration and dismissal under the article. But if the employee showed up already drunk, then this is not an argument in his favor. It is also important to take into account, especially for workers, that intoxication is considered to be the consequences of not only alcoholic beverages, but also the use of other intoxicating substances.

Liquidation of an organization

Termination of a company's activities is perhaps one of those rare reasons for dismissal that is absolutely independent of the will of the employee. The company may close down completely, merge with another company, or be transferred to a new owner. But part 4 of Article 81 of the Labor Code of the Russian Federation states that the new management has the right to dismiss only the following employees:

• The head of the company and his deputies.
• Chief accountant.

All other employees are legally free from the arbitrariness of the new management. There is another case - staff reduction. In this case, there is also a ban on the dismissal of certain persons. For example, employees who are the sole breadwinners in the family cannot be fired. Also, specialists who have extensive experience in a given company can apply for the opportunity to work. If they were illegally fired from work, then the Labor Inspectorate or judicial authorities will help restore justice.

Theft or embezzlement of company property

The performance of work duties in one way or another opens up access to company property. Some specialists are even responsible for the entire financial condition of the organization. Managers do not have any safety measures or prevention levers against theft or embezzlement of enterprise property. There is only a law that can take action after the fact. Therefore, such phenomena and their resolution go beyond the scope of the Labor Code and border on the Criminal and Administrative Codes. However, in practice everything is not so simple.

In practice, the largest share of embezzlement and theft occurs among employees in the financial sector. For example, this could be the chief accountant, cashier or other employee who has access and knows the system of operation of the enterprise. If a shortage is discovered at the end of a shift, it is unlawful to automatically assign someone to blame.

At the first stage, an act is drawn up, law enforcement agencies or the company’s own security service are involved. If, based on the results of the internal investigation, it was possible to identify the culprit, then the manager has several options:

1. Dismissed under article.
2. Understand, forgive and give the opportunity to resign of your own free will.
3. Write a statement to the court and demand punishment.

The latter is appropriate if large sums are involved and malicious intent on the part of the employee is evident. However, in practice, managers more often choose the second method, since high-profile proceedings can negatively affect the company's reputation.

Loss of trust in an employee

Employees in the above sectors may be fired before a more serious event such as theft or embezzlement occurs. Loss of trust is different in that in this case the employee does not have malicious intent, but material damage is caused due to his irresponsibility or negligence. The following employees may be dismissed for such reasons:

• Accountant.
• Cashier.
• Warehouse Manager.
• Economist.
• Salesman.
• Forwarder and more.

Here the procedure is similar: a report on what happened is drawn up, an investigation is conducted, and only based on its results can the culprit be determined. Usually, an inventory or audit is carried out to reconcile material and financial assets. Are such employees dismissed from their jobs? Yes, no manager will like an irresponsible attitude to work.

Who shouldn't be fired?

There is a category of workers who are protected from dismissal at the legislative level. They are clearly indicated in the Labor Code of the Russian Federation. Typically, this category includes the most vulnerable category of citizens. Most people know that this list is headed by single mothers and the only breadwinners in the family. At the same time, many are interested in whether a pregnant woman can be fired from her job. Let's look at the entire list:

• According to pregnant women who provide a certificate from the antenatal clinic about their situation, they cannot be dismissed under Articles 77 and 81. The exception is the liquidation of the enterprise. But even in this case there are a number of reservations.
• It is also prohibited to dismiss an employee during his leave under Articles 77 and 81, with the exception of closing the enterprise.
• According to Article 77 of the Labor Code of the Russian Federation, dismissal is considered illegal if the corresponding order is issued while the employee is incapacitated. A similar exception is the closure of a company.
• Also, in cases other than liquidation, a woman who has a child under 3 years old cannot be fired.
• This category also includes a mother who has a disabled child under 18 years of age.
• You also cannot fire a father, grandmother, grandfather or other person who has a dependent disabled child under 14 years of age.

Considering these provisions, we can say that the question of whether a pregnant woman can be fired from work should not bother future mothers. They are insured until the child is 3 years old.

What does voluntary dismissal mean?

Dismissal at will is the most common formulation. Why can one be fired from a job with such a verdict? Legal aspects are regulated by Article 80 of the Labor Code of the Russian Federation. There are often cases when, in practice, the manager himself offers to issue a release with this wording for one or another employee’s misconduct. And such a step is completely justified, since another article requires evidence of the employee’s guilt. This is also a great advantage for the employee, since his honor and reputation are not tarnished and he can easily find another job.

When dismissing at your own request, the employer is required to comply with the established registration rules. The employee must notify of his intention no later than 2 weeks before the date of dismissal. He has the right not to explain the reasons for his departure. If within the next two weeks he changes his mind about resigning, then his position will remain with him.

Another question: if voluntary dismissal is planned, under what article is this fact recorded in the work book? The work book will contain a link to the law - “dismissal under Article 80”. This clause does not have negative consequences for either the company or the employee.

Conclusion

Dismissal under an article is characterized by the complexity of the process. If an indictment is applied against an employee, then his guilt must be fully proven. This requires a lot of time and labor. For example, embezzlement or theft requires a 3-stage investigation. Based on the results, a resolution and sentence should be drawn up. Only after this can you begin the dismissal process.

In addition, we must not forget about psychological factors in the team. Some workers may become victims of fraudulent schemes or may simply be used fraudulently by other workers. Considering all these factors, we can say that choosing Article 80 is a universal solution in many personnel matters.

Firing an employee is not that easy. The Labor Code contains Article 81 for this purpose, “Termination of an employment contract at the initiative of the employer.” But for some cases a commission will be needed, for others - reliable evidence of violations. It is labor-intensive and time-consuming.

It’s easier to return your work record with the wording “dismissed at your own request.” According to the Labor Code, the boss is obliged to offer some fired workers a new position. This will not work if the employment contract says that the person left on his own initiative.

Reasons for dismissal at the initiative of the employer may be as follows:

Labor mismatch

The law says that you can be fired for inadequacy of the position held (Labor Code of the Russian Federation, Article 81, paragraph 3). To do this, the boss needs to develop a plan: how and where to test the employee, and by what criteria to evaluate his answer. The next step is to assemble a certification commission. It should include the deputy director of the company, an employee of the human resources department, a representative of the trade union and the immediate supervisor of the person being certified. The commission offers a task adequate to the employee’s position.

After certification, the commission votes whether you are suitable for the position or not. For example, if a designer does not have a specialized education, but has knowledge and skills in this field, the commission will offer to send him to courses or transfer him to a position more suitable in terms of qualification level.

If you have not passed the certification, you still cannot be fired immediately. First, the manager must offer a position that matches your professional level from those currently available in the company. When you refuse all options in writing, that’s it, you can fire. The law also allows you to challenge the certification result in court. If the certification procedure is violated, the court will declare the dismissal illegal and the position will be returned.

It is illegal to certify pregnant women and those who have worked in a position for less than two years. After maternity or child care leave, two years must also pass before certification. Important: this is stated in the Order of the Ministry of Education and Science of the Russian Federation dated May 30, 2015 N 293, but there are no such conditions in the Labor Code.

What to do: update professional skills. A valuable employee who has excellent knowledge of the business is better protected from dismissal than an employee with outdated knowledge and work methods.

Arbitrage practice: Igor Petrovich (name changed. - Note ed.) worked in the library and was in good standing with colleagues and management. He lacked the title of “Veteran of Labor” for one and a half years of experience. Therefore, the pensioner continued to work, despite his advanced age.

After the next certification, Igor Petrovich was offered to move to another position, with a demotion. The commission considered that the employee’s experience and skills do not correspond to the position held. The pensioner was outraged and refused. Igor Petrovich was fired. Then he went to court and demanded reinstatement and compensation.

Members of the commission also spoke in court. They said that Igor Petrovich, unfortunately, does not know how to work with a computer. And most of the responsibilities for his position now revolve around this skill. Igor Petrovich’s colleagues said that he is a very responsible and active employee, that he has many certificates and gratitude.

The court did not support the pensioner. Formally, the certification passed without violations, but the employee was unable to comply with the requirements of the commission. He refused another position. The dismissal was recognized as legal.

Lateness, absenteeism

You won't be able to fire someone for being late on its own. But the boss can impose disciplinary action. For example, a remark or reprimand. And for a new penalty - order dismissal (Labor Code of the Russian Federation, Article 81, paragraph 5). According to the law, this is called “repeated failure by an employee to fulfill his job duties without good reason.”

If an employee goes to court, they will look at the dates of penalties. An impeccable work reputation at first, and then several reprimands in a short period of time will raise questions about the legality of dismissal. The court will side with the employee, deciding that the manager did not give him a chance to improve.

Absenteeism is when an employee is not at work for more than 4 hours in a row or he missed an entire shift, and there is no certificate of illness or other explanation. For absenteeism you can be fired under the same article as for being late.

General rules: before reprimanding you, your boss must find out the reason for your tardiness or absenteeism. You have two days to explain everything in writing. If there are no valid reasons, a disciplinary sanction will be issued. This is an order or instruction that the employee must sign within three days.

What to do: maintain discipline, always formalize sick leave or vacation at your own expense.

Important: if an employee was fired for being late, you need to check whether there were other cases of tardiness in the company at the same time. If so, then dismissing one person is labor discrimination and a reason to go to court.

Arbitrage practice: Kostya got a job as a storekeeper at the company. I worked for a year and asked to go on vacation. I brought a statement, but the boss ignored it. A month later, Kostya again wrote an application for leave. The result was the same.

One day Kostya woke up in the morning and decided that this was no longer possible. He drank coffee and went to the park with his favorite book. Kostya did not go to work that day. The boss immediately drew up a report stating that the employee was absent from the workplace. Kostya refused to write an explanatory note and sign the act. A week later the dismissal order was ready. And then there was a trial.

The court declared the dismissal illegal, since the employee has the right to vacation for the first year of work already 6 months after taking office. With written consent, you can postpone your vacation to the next year. But Kostya did not sign such documents and did not agree to postpone the vacation.

It turns out that the boss violated Kostya’s right to vacation. And he boycotted this decision by absenteeism. The court sided with Kostya, reinstated him in his position and awarded compensation.

Disclosure of secrets

Commercial and official secrets are protected by law. When you sign non-disclosure papers, you accept responsibility for the safety of this information.

Important: your salary, the number of employees in the company, information about vacancies are not a commercial secret. This is what it says in No. 98-FZ “On Trade Secrets”. And the law on personal data allows you to tell without restrictions how much you receive. Because you independently manage your personal data. At the same time, someone else’s salary is the personal data of another person. If, due to your position, you have access to such information, you signed a non-disclosure document and spilled the beans, then you can be fired for disclosing other people’s data.

If desired, the boss can prohibit talking about the amount of salary outside the organization. Then he must draw up an internal document where the salary data will have the status of an official secret. It is impossible to prohibit discussing your salary with your boss or colleagues. This is illegal and such an order can be challenged in court.

To fire someone for disclosing official secrets, you need evidence. For example, an employment contract signed by an employee, which lists everything that the company considers classified information.

What to do: study the employment contract and find out what information cannot be discussed with colleagues and friends.

Who can't be fired

Pregnant women are not fired for any of these reasons. But the boss can issue a reprimand and record a violation. Those who are on leave - at their own expense or on maternity leave - can only be fired when they return to work. This cannot be done in hindsight.

There are also medical reasons for dismissal. If an employee cannot go to work for 4 months, the position is retained for him. When the period of medical restrictions on work is more than 4 months, the boss has the right to issue a dismissal order (Labor Code of the Russian Federation, Article 73). Or offer a position that matches the employee’s health capabilities. It is impossible to fire someone who is on sick leave.

Arbitrage practice: Sofya Ivanovna (name changed, - Note ed.) worked in the Council of People's Deputies. One day the structure of the apparatus was revised. Her position was reduced and another one was introduced - head of organizational and personnel issues. The boss called Sofya Ivanovna for a conversation and invited her to resign “of her own free will.” And he did not offer to take a new position corresponding to experience and knowledge. She refused.

Due to her personality, Sofya Ivanovna had a hard time with problems at work and even ended up in the hospital. While on sick leave, she received the first official notice from her employer that her position was being cut.

I'm being pushed to quit. What to do?

Defend yourself. If the manager has no comments about your work and work discipline, formally the truth is on your side. Personal complaints from colleagues are not a reason for dismissal. If you feel pressure from one of your employees, write a report addressed to your boss. Tell us who is hindering your work and how, and ask them to look into the situation.

File a claim. Describe the problem in free form. Explain in detail how you see her solution. Indicate what you will do if the situation is resolved in a way that is undesirable for you (go to court, write to the labor inspectorate). Send the claim by registered mail to the manager at your company address. You need notification that the recipient has received the letter. If the case goes to court, this document will protect your interests.

The work activity of citizens is inherently associated with ups and downs. Some people systematically receive promotions, climbing the career ladder, while others are in constant conflict with their superiors, seeing no further prospects. Often, the administration of an enterprise tries to get rid of unwanted employees by offering... The alternative offered to the employee - to resign under the article - is nothing more than a threat. However, there is no such thing as “dismissal due to article”.

If an employer terminates relations with a citizen, then he has good reasons for this, and he is ready to prove his accusations by documenting the appropriate grounds for dismissal through commission proceedings and a corresponding entry in the work book.

In the current legislation there is no such definition as . A description of the termination of the employment relationship is given in two paragraphs of the Labor Code. The first article is Article 80, which provides for the employee’s right to work, in particular, its termination on his own initiative. The second article is Article 78, which provides situations when you can part with your job by agreement with the administration.

It is a completely different matter when termination of employment fits the content of paragraph 81, according to which dismissal is the cause of guilty actions on the part of a full-time employee of the organization:

There is another article in labor legislation, according to which the dismissal of employees may be caused by circumstances beyond the control of the parties. Such reasons include the conviction of citizens, the imposition of administrative penalties (a certain number or disqualification), as well as a court decision.

According to current practice, the parties to proceedings try to make concessions. If it is not possible to reach an agreement, “inconvenient” is inevitable. It is worth remembering that an employer’s offer to resign voluntarily in exchange for leniency is illegal. According to the law, it is impossible to dismiss an employee who conscientiously performs his duties for guilty actions.

How to behave in a situation where an employer fires you for faulty actions

With each new employment, the personnel service of enterprises carefully examines the documents submitted by the applicant. For this reason, applicants are not always able to reach the stage, especially when their work record contains an entry indicating conflicting relationships with superiors at their previous place of work. The situation is not pleasant, but this is not a reason to give up on your career. In any case, there is always a way out of such an unpleasant situation.

Trying to negotiate with management

Both parties to the employment relationship are usually always aware of the upcoming dismissal. The employee is obliged to notify in writing of his intention to terminate cooperation with the enterprise. At the same time, the administration reserves the right to assign so-called detention. The management of a legal entity is also responsible for advance warning of its actions in relation to employees - no later than one month. However, if there is a trial for guilty actions, dismissal can be issued retroactively.

The agreement with management implies agreement on further actions on the issue of dismissal. This option is perfect for cases where the administration of the enterprise does not have sufficient authority to formalize “guilty” dismissals. In this case, a competent employee still has the chance to make a proposal to formalize the agreement.

If an employee has some materials for the organization, they can be presented as an argument. In this case, the situation cannot be called a blackmail background, since the administration of enterprises that violates labor laws is simply warned about possible legal proceedings.

From scratch or replacing the work book with a new form

One of the easiest ways to fix the negative entry problem is. Its absence, of course, can confuse the administration of the enterprise. But be that as it may, the organization remains obligated to issue a new document upon employment. If the citizen is satisfied with the employer, then no problems with hiring will arise. The applicant will only have to pay for a new book, since it is a strict reporting form. But you can always purchase it yourself, since the book is on free sale.

The only thing that will complicate further work activity is the inability to confirm your identity. On the other hand, in modern enterprises the uniform length of service for calculating payments has been abolished. Each organization has its own profile period of work.

When there is an absolute need to confirm your work experience, you can always send a request to the places of work where the citizen had an employment relationship. In this way, you can always restore personal data, for example, before your upcoming retirement. Also, a duplicate work record book can be restored by contacting the employer who hired the citizen before the negligent organization.

You can go to court

You can protect your civil rights in court. In case of disagreement with your dismissal, it is applied in accordance with Article 392 of the Civil Code. However, the former employee has 30 days to initiate proceedings.

Within a month after the issuance of a work book with an “inconvenient” entry, it is necessary to file a claim against the former organization, in which it is necessary to indicate the demands for reinstatement and even payment of compensation for the period of forced non-fulfillment of labor duties. It is noted that the costs of paying for the proceedings are borne by the legal entity in which the dismissal was formalized.

During the trial, it will be established whether the administration of the enterprise really had grounds to dismiss the employee for guilty actions. If it was executed under pressure from an employee or for other reasons that do not comply with the law, the company faces the imposition of an administrative fine. In this case, the negligent organization will have to restore the citizen to his previous position and pay wages even if he was not actually engaged in labor activity.

The overwhelming majority of hearings end in a win for citizens, but at the same time, the employee, even if he is a former employee, should not lose his vigilance. HR departments of enterprises extremely rarely respect the rights of employees while protecting the economic interests of the administration.

In any case, each employee must keep with him a copy of the employment contract and all additional agreements. Often, in conversations with employees, personnel services use various tricks, provoking the wrong actions of citizens. This can happen even regardless of how right the employee is.

How to deal with a new employer

A conversation as a job seeker at another company aims to sell yourself at a higher price. The realities of modern employment show that enterprises often need the business qualities of employees rather than their education. In this case, the main characteristics are the total length of service and specialized experience. Few people care about the behavior of the former employer towards employees.

It is important to prepare for the interview in accordance with the vacant position. To obtain such information, you can refer to the materials provided by specialized portals, as well as leading experts in the field of recruiting. If, nevertheless, the situation with a description of your separation from your previous employer is inevitable, it is necessary to present the situation as a common misunderstanding.

You need to talk about your former employer, who issued the employment certificate on his own initiative, as little as possible. Also, you should not speak in a negative way, since sabotage or other manifestations of disrespect for the administration are not welcome in any workplace.

At the same time, we must not forget that organizations often use modern methods. You can find out your labor history using various methods, including requests to the Pension Fund. So, when preparing personalized reports, accounting employees may accidentally find out about their former place of work. In any case, information about relationships with the administration at the previous position need not be disseminated.

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In fact, any dismissal in any organization, regardless of whether it is a commercial structure or a government agency, is carried out in accordance with the norms of the current Labor Code. Termination of relations with workers for reasons not specified in the law is not permissible. Today we will try to consider the most common reasons for dismissal under the article of the Labor Code of the Russian Federation.

Reasons for dismissal

Under what article can one be fired? All grounds for dismissal can be divided into three large groups:

There are many reasons for dismissal at the initiative of the boss. All of them found their expression in Article 81 of the Labor Code of the Russian Federation. Let's get acquainted with them in detail.

For violations of labor discipline

All violations by a specialist of labor discipline rules can be divided into:

• systemic and individual;
• not rude or rude in nature.

Systematic failure to perform functions, if the employee has a disciplinary sanction, threatens with dismissal. This reason does not mean a single fact of refusal to fulfill one’s immediate duties, but systemic violations. It is imperative that the employee has already been punished for the violations committed. Verbal reprimands are not taken into account. To prevent failure to fulfill your direct duties, you should thoroughly read your job description. Not a single local act will tell you about this in as much detail as a job description. It is important to have time to familiarize yourself with its provisions within three working days from the date of the crime to duty. The manager, for his part, must take care of the timely development of instructions for the new employee and familiarize him with it in writing, preferably on each page with a date.

Assumption of gross violation

If for other violations one fact is not enough to fire a person, then for gross violations only one is enough. What do you mean by rude? Why can you be fired?

1. . Not going to your workplace during the entire working time or more than 4 hours (please note that it is consecutive, and not 4 hours in total during the working day) entails dismissal. If an employee is sick, he should at least call and report his absence from work. It is advisable to do this in advance so that the boss has time to find a replacement. This is most relevant in plants and factories, where stopping the production process leads to large losses.
2. . Coming to work drunk or under the influence of psychotropic or narcotic substances also threatens dismissal. In this case, the worker’s workplace is determined in his job description. It is not at all necessary that it should not change. There are professions with a constant change of workplace, an auditor, for example, who is on constant business trips.
3. Theft. Theft, damage to the company's material assets by an employee, their waste - all these are also reasons for terminating relations with the employer. An important nuance - even conducting an internal audit in this case is not enough to say goodbye to such an employee. Everything is much more serious. The employee’s guilt is confirmed either by a verdict or a court order.

Loss of trust

There are also reasons for dismissal that contain an anti-corruption component. What does by itself mean?

1. Failure to provide or misrepresent income. Almost all civil servants today provide information about their own income every year. Moreover, not only in relation to themselves, but also in relation to their wives and children. The submitted certificates contain information about the amount of funds on their bank cards, open accounts, information about apartments, cars, boats, airplanes and garages not only owned, but also in use. Failure to provide proof of all your income or providing distorted information means losing trust. And this is already grounds for subsequent dismissal.
2. Submitting false documents for employment purposes. We are talking about absolutely any document related to employment: passport, military ID, diploma, license or certificate. When applying for a job in a reputable organization, you need to be prepared for the fact that all copies of submitted papers may be subject to thorough checking. A request can be made to the Information Center about whether the future employee has a criminal record, and to a university - a request about the authenticity of the diploma presented to them. Such verification activities can only be carried out with the written consent of the person in respect of whom they are actually being carried out.
3. Disclosure of official secrets. Disclosure of any secret: state, medical, official, etc. An employee hired for a job whose nature involves possession of secret information signs a non-disclosure agreement. This also applies to the disclosure of personal data, for which the employee can also be fired.
4. Violation of safety regulations by a specialist. Violations of labor protection regulations. Such a violation in itself cannot cause dismissal. There must be some serious consequences of this violation: a disaster, harm to other workers, an accident. The harm assessment is carried out by representatives of the occupational safety commission.

Inconsistency between a specialist and his position

Compliance with the employee's qualifications, knowledge, skills and abilities is determined exclusively by certification commissions. By himself, alone, a manager cannot make a decision regarding his subordinate about his unsuitability for official duties. For this purpose, an entire certification commission must be convened.

The commission is created in the organization by order with mandatory familiarization with the signature of the persons included in its composition. As a rule, these are the most trained employees, deputy heads, heads of departments, experienced employees who are able to adequately and objectively assess the abilities of the person being certified. During certification, the employee is asked questions about his work, the answers to which allow him to be given a fair description. Following the results, an open vote takes place. A majority vote renders a verdict on the person being certified - whether he corresponds to the position or not. The basis for the commission is a protocol signed by all participants, and most importantly - by the person being certified as a sign of familiarization with the conclusions. One of the results of such certification may be.

Termination of the company

For this reason, when dismissing a worker, the identity of the worker is not taken into account at all. Everyone is subject to dismissal: employees who are positively characterized, who work honestly for the benefit of the company, as well as employees who work carelessly and have not distinguished themselves in any way for the better. The basis for terminating the relationship for this reason is the same order for all to liquidate the enterprise. At the same time, it is clear that no other positions are offered to anyone, since, strictly speaking, there is nothing to offer.

Staff reduction

Downsizing happens in all organizations: private firms, state-owned enterprises, factories and factories. The basis for dismissal is the order of the number of work units. At the same time, it precisely indicates which positions are subject to reduction. An important feature is that the worker is notified of the upcoming layoff at least two months in advance. From the point of view of the legislator, this time will be enough for the employee to find a new, suitable job.

The law also defines the circle of persons who have some immunity to remain at work during layoffs. Who can management not fire for this reason:

• First of all – pregnant women. If an employee whose position has been reduced brings a certificate of pregnancy, then it will be impossible to fire her. The employer will simply be obliged to offer her a worthy alternative in the form of a similar position or similar type of activity, with a salary not lower than what she receives.
• Those workers who, for various reasons, retain their jobs. Those on maternity leave, for example, annual leave, a business trip, even a long one or in another area.
• Employees released from their work duties due to ill health. The basis is the certificates of temporary incapacity for work presented to the employer;
• Employees who are raising children under three years of age.
• Employees raising children alone. The age of the children of such mothers is up to 14 years, and if the child is disabled, then up to 18 years.

Representatives of trade union organizations enjoy a special position. They can be reduced only with the permission of the trade union leadership.

Sometimes a difficult situation can arise in a work team when one position out of two staff positions is cut. Let's say one of the two driver positions must be reduced. In this case, the manager must leave at work the driver whose qualifications, rank and labor efficiency are higher. But what if the drivers are equal in terms of professionalism? In this case, preference is given to the one who has a larger number of dependents compared to the other, or, for example, to the one who received an occupational injury in this company during the period of work.

Change of company owner

If the property of a company is transferred by right to a new owner, then this new owner legally has the right to change his director, deputies, and chief accountant. This basis has nothing to do with other categories of workers.

At your own request

Do not forget that the employee himself has the right to terminate his employment relationship with his employer at any time - at his own request. And such a reason is also provided as a basis for dismissal under the article. To do this, the employee submits a statement of his intention to leave to the director of the company. Most often, he is assigned to work for a period of 2 weeks. But, at the discretion of the manager or by mutual agreement with the employee, dismissal can be made without working off. On the appointed day - the day of dismissal - a full payment is made to the employee and a work book is issued.

Due to death

Death is a circumstance that does not depend on the will of the parties to the labor relationship. Of course, in the event of the death of an employee, the employment relationship with him is terminated. In this case, the work book is issued to a loved one of the deceased. In addition, the family of the deceased employee receives all due compensation, including wages for the time worked by the deceased.

Sample procedure for registering dismissal

What does the dismissal procedure under the article include? Any procedure is a certain sequence of actions. Where should you start, first of all?

Witnessing a fact

This action must be carried out mainly if the specialist commits any violations. For example, a person did not show up for work. To testify to this fact, it is necessary to draw up an act, not about simple absence, but about absence for exactly 4 hours in a row. The key word is consecutive. An employee showed up at his workplace drunk. An act should also be drawn up about this. Any act is drawn up in the presence of at least three members, and they sign it. If you do not promptly record any violations by an employee, then dismissing him in the future will be problematic.

Issuing a warning

You should not immediately take decisive action by announcing dismissal to the offender. In this way, the entire human resources potential of the company can be lost. To begin with, it is enough to warn by making a remark or issuing a verbal reprimand. We can finally have a conversation. And if all the preventive measures taken did not bring the desired result, and the employee again continues to commit the same violations, then the only right decision is dismissal.

Employee familiarization

An employee who has committed an offense at work must know exactly what he committed. So, when drawing up an act in relation to him, he must be familiarized with it. When declaring a reprimand, it is necessary to familiarize the employee with the order. When announcing a verbal reprimand, it is also necessary to familiarize the employee with the minutes of the meeting at which public reprimand is issued to the offender. In general, the employee who committed the violation is familiarized with any punitive document against signature.

Explanatory

For all cases of violation of discipline in the team, an explanation must be taken from the guilty employee. The leader must know the reasons for what was done. The explanation is always given in writing. It is advisable to initially indicate questions on the form, to which the employee subsequently gives detailed answers.

Order of dismissal

After all preventive measures and warnings have been exhausted, the reasons and all the circumstances of the violations committed by the specialist have been fully identified, a dismissal order is drawn up. The order is drawn up by a HR employee. The order states:

• FULL NAME. dismissed;
• reasons for termination of relations with reference to the article of the Labor Code of the Russian Federation. A similar entry is made in the labor record;
• the amount of cash payments due;
• date of termination of the contract. This date does not always coincide with the day the order was issued. The order may be issued earlier than the date of dismissal, but in no case later.

Compensation and benefits

All amounts due to the dismissed person are paid to him on the day of dismissal. If he did not apply for them on that day, then they are paid on the day following the day of his application. Payments include:

• compensation for unused rest time during the year of dismissal;
• bonus for conscientious performance of duties. As a rule, these are two salaries.

The employer is liable for violation of payment deadlines.

Is it possible to appeal dismissal under the article?

Of course you can. If an employee considers the dismissal to be illegal, he has the right to challenge it in court. The main thing is not to miss the deadline. The law establishes a one-month period for appealing a dismissal order. Exceptional cases of extension of this period are illness, business trip, or other circumstances that deprive a person of the opportunity to go to court for restoration of his violated labor rights.

In conclusion, I would like to note that under no circumstances is it possible to fire a person who is on vacation or on sick leave. The only exceptions are cases of liquidation of the company. Remember that it is not enough to fulfill your duties honestly. You also need to periodically read your job description, the provisions of the collective agreement, if the company has one, and also know the provisions of labor legislation.

Lawyer at the Legal Defense Board. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

In order to exercise its right to dismiss employees whose work, for one objective reason or another, is ineffective for the company, the employer must remember that labor legislation provides it not only with rights, but also requires the fulfillment of certain obligations in relation to employees. After all, failure to comply with requirements and non-compliance with legislative norms deprives the employer of the opportunity to initiate the dismissal of an unwanted employee and leads to serious financial losses.

Legal norms for dismissal “under article”

The term dismissal “under article” has migrated into our time from the Soviet and post-Soviet periods, when this concept meant a severance of labor relations under the only thirty-third article of the Labor Code (LLC) at that time. Many believe that the entry in the work book under Article No. 33 of the Labor Code required the dismissal of an employee due to drunkenness and absenteeism, but this is not so. This section of the Code included all grounds for termination of relationships at the initiative of the employer: from production reasons (liquidation and reduction) to grounds related to the employee’s guilt (absenteeism, theft, etc.), and even the return to work of the main employee was also included in this article.

But the people still remember that the presence of a reference to article No. 33 in the work book meant a labor mark. This idea was used to intimidate careless employees, as well as those who did not obey the requirements of management.

Today, when all the grounds relating to the termination of working relations at the will of the employer are divided into 12 points of Article No. 81, the question of what grounds of labor legislation can be attributed to the so-called calculation “according to the article” is resolved differently. To this conceptare considered all articles of the Code that are based on violations of labor discipline by an employee, and, as a result, the application of disciplinary sanctions to the violator.

Let’s first figure out what these sections of labor legislation are, the grounds of which can be qualified as a person’s failure to fulfill his labor duties. Thus, it is permissible to carry out the procedure for disciplinary sanctions, which are regulated by the provisions of Articles No. 192 of the Labor Code of the Russian Federation, for no less than nine articles that are unpleasant for the employee. Moreover, such sections of the Code may apply to both all employees and certain categories:

1. Dismissal for a systematic, “non-severe” violation committed several times, which is documented at least twice (section No. 81 of the Labor Code of the Russian Federation, paragraph 5 of part one), this includes:
   • failure to comply with standards and deadlines for direct job responsibilities (failure to report, failure to comply with the requirements of individual job descriptions, etc.);
   • ignoring regulations, including technical and local acts, management orders, etc.;
   • failure to comply with labor discipline (lateness, absence from work, etc.).
2. For a serious violation committed once (Article No. 81, subparagraphs a - e of paragraph 6 of part one):
   • a) absenteeism;
   • b) appearing at work under the influence of alcohol or drugs;
   • c) disclosure of commercial, official or state secrets;
   • d) theft, embezzlement;
   • e) violation of labor safety standards.
3. Termination of contract due to loss of trust (section No. 81, paragraph 7).
4. Termination of a contract for an immoral act (applies only to teachers and educators) - paragraph 8 of Article No. 81.
5. For gross mistakes by managers that cause damage to the company, and failure by them (as well as their deputies) to comply with labor standards (Article No. 81, paragraphs 9 and 10).
6. Although in these cases no penalty is applied, termination of the contract when forged documents are discovered during the conclusion of the contract is also considered a breach “under the article”. Since this can be safely attributed to incorrect work behavior.
7. A special case where a teacher violates the organization’s charter (clause 1 of Article No. 336 of the Code) is subject to “discipline” and dismissal “under the article”.
8. As well as the dismissal of disqualified athletes (for example, due to doping) - article No. 348.11.

It should be noted that the obvious is that all of the above grounds are classified as articles, the indication of which in the employment contract immediately raises fair questions from the personnel officer when applying for a job. This is a kind of “stigma” for a person. As a rule, when a future employer sees such a post, any explanations and comments of the person are not perceived. In the best case, a person will face a less prestigious job, a lower salary and constant control by the security service or immediate management. At worst - refusals of vacant positions. Therefore, probably 90% of all claims of dismissed workers, which are brought against the decisions of the employer, relate to dismissal under any of these articles.

Dismissal “under article” can be called a labor stigma; in this regard, the violator of labor discipline will most likely have problems with further employment

Let's not dwell on exceptional cases, let's look at the most common options, and start with the most used ones.

6 key grounds for dismissal “under article”

The most common reasons for termination of employment relationships are absenteeism, alcohol in the workplace, theft, etc. All these work violations are regulated by Article No. 81, subparagraphs “a - d” of the sixth paragraph of the Labor Code of the Russian Federation.

This is the most “strict” section for both parties. On the one hand, even for a one-time violation from the list of violations of paragraph No. 6 of the article, you can immediately terminate the contract. On the other hand, there are a lot of nuances that an employer needs to take into account when dismissing a person.

Moreover, as the Supreme Court of the Russian Federation stated, if it comes to proceedings, it is the employer who must collect and present evidence of the legality of such actions.

Let's understand the terms and details that labor law uses in the application of these situations.

Absenteeism - difficulties and nuances of dismissal

The Code defines absenteeism as being absent from the workplace without a valid reason for more than four consecutive hours during one work shift.

On this basis, the employer has the right to terminate the contract with the employee “under the article” on the day the misconduct is discovered. True, we should not forget that dismissal for absenteeism is one of the types of disciplinary sanctions provided for and strictly regulated by the Labor Code of the Russian Federation. Therefore, dismissal on this basis must be carried out in accordance with Article No. 193 of the Labor Code of the Russian Federation, that is, recording the fact of absenteeism must go through a certain procedure (we will consider this issue in more detail, in detail, in a separate chapter devoted to step-by-step instructions for filing any penalty):

1. An act, official or memorandum from the manager (colleagues), indicating that the employee was absent from work.

   The act specifies the specifics of the fact, and the document is endorsed by at least two witnesses to the violation

2. Requirement to provide an explanatory note from the employee.
3. If explanations are refused, a report is drawn up recording the fact that the employee refused to provide explanations.
4. If the employer has difficulty understanding why a person is absent from work (it may happen that he is absent for a good reason), he is sent a requirement: to report to work to provide an explanation for his long absence from the workplace.

   If personnel officers cannot find the violator, a requirement is drawn up: to appear and give an explanation

5. As soon as the person is properly notified that absenteeism has been recorded, an order can be issued to terminate the employment contract.

   The order to terminate an employment contract lists all the grounds: official documents, acts, notification, etc.

The record of dismissal under subparagraph “a” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is recorded in the work book as standard, without abbreviations and abbreviations. Possible wording indicating a link to the article of the Code:

• “fired for absenteeism”;
• or “the employment contract was terminated due to a one-time gross violation of labor duties - absenteeism...”;
• further, there is a correct link to the article of the Code;
• visa of the responsible person, dismissed employee and seal of the organization.

An entry in the work book under subparagraph “a” (absenteeism) may look like this

The background to the issue of absenteeism is clear; there are many more nuances and subtle points here. Therefore, before preparing materials for dismissal for absenteeism, it is recommended to carefully research and check all the points.

Typical mistakes, or when it is impossible to fire someone for absenteeism

Please note that you should not fire an employee for absenteeism if at least one of the significant conditions for determining the person’s guilt has not been established. Therefore, in order not to run into litigation, you need to eliminate all mistakes when dismissing someone based on this fact.

Summarizing the main points when an employer risks losing a court case due to illegal termination of a contract, it should be noted that there is a fairly extensive list of shortcomings for this. Here are the most common ones, namely:

• The employee’s employment contract does not define the working mode (specific days of the week or schedule), therefore, the absence of more than four hours during a work shift cannot be proven, since it is not determined from what hour the clock begins and which days are considered working days for the employee.
• The employee’s contract does not define his workplace, therefore, it is impossible to prove that the person was not there.
• When there are no arguments that the reason for absence is truly disrespectful: that is, a full step-by-step procedure for registering a disciplinary sanction has not been carried out or it has been carried out with violations.
• If, fourteen days after the employee submits an application to terminate the contract at his own request (written statement), the person does not appear at the workplace.
• Or a variant close to the previous one: a person does not go to work for a long time, and the employer cannot find out the reason for his absence. In this option, the personnel officer will not be able to dismiss the employee on legitimate grounds, since the absence of a person does not give the right to do so: it is impossible to obtain comments or attest that comments about the reason for absenteeism were requested, but not given. Thus, until the employee returns to work and the employer asks him to explain the reasons, dismissal for absenteeism is not legal.
• Another argument that is not far off in its grounds is serving an administrative arrest imposed in accordance with a court decision. This fact does not depend on the will of the employee, and therefore serves as a valid reason for absence from work. This means that this fact cannot be considered absenteeism.
• During the period when the part-time worker is on a business trip to his main place of work, termination of the contract in this situation is illegal.
• Or another option: a person does not go to work for the reason that he does not agree with his transfer to another position or workplace - also a slippery option for the employer. Termination of the contract due to “absenteeism” will not work here, we need to negotiate.

A separate question here is when an employee is entitled to time off or vacation according to the law. Let’s figure out which situations will not be recognized by the court as a violation of labor discipline:

• absenteeism from the workplace if the company has a pre-agreed vacation schedule and the person rests according to plan (it is impossible to issue a unilateral ban in this case - only negotiate);
• a person cannot be denied a day of rest if he is participating in a donor program;
• you need to know that granting unpaid leave to a working pensioner in accordance with Part 2 of Article No. 128 of the Labor Code of the Russian Federation is an obligation and not a right of the employer;
• It is also recognized as the duty of the organization to provide additional leave in the event of marriage registration.

In the judicial practice of dismissal for absenteeism, there are cases where both the employer and the employees were found to be right. We present both solutions.

Thus, the court recognized the dismissal as legal when an employee, while on a five-day business trip, finished it 2 days earlier, but, having returned to the city where the company is located, returned to work only after the end of the period indicated on the business trip sheet. The court recognized these 2 days as absenteeism and did not reinstate the person in his position (see court case No. 33-4247/2011).

At the same time, when a retired teacher, fired for absenteeism, managed to prove that he skipped work for health reasons without taking a health certificate, the company had to reinstate him at work and pay him all the required compensation, including moral damages (with a definition court case No. 33–7511 can be found).

Photo gallery: claim form for reinstatement

In the statement of claim, you can indicate all the requirements, for starters - reinstatement at work (part 1) Requirement No. 2 of the statement of claim may be payment of salary for the period of forced absence (part 2) You can indicate in the claim and compensation for moral damage (part 3 of the statement)

Alcohol at work - a simple scheme for dismissal

Termination of a contract due to the use of alcohol or drugs in the workplace (or on the territory of the enterprise) is, as a rule, much simpler. It doesn’t matter here when the person was caught doing this: at the beginning or at the end of the work shift (at least 5 minutes before the end of the working day). It does not matter whether the employee was relieved from performing his or her duties due to the specified condition or continued to work. If the employer wishes, this can be done at any time.

In this option, the violation detection algorithm will be as follows:

• if possible, a medical examination is carried out, for this it is even possible to call an ambulance, and it should be noted that other evidence may be accepted by the court;
• an act is drawn up confirming that the employee was drunk at work, which is endorsed by two witnesses;
• an explanatory note is requested from the violator;
• an order on the fact of application of the DV is drawn up and endorsed;
• an order is issued to terminate the contract with the employee.

The grounds that are indicated in the employment contract: Dismissed for a one-time gross violation of labor duties - appearing at the workplace in a state of alcoholic (drug) intoxication, subparagraph “b” of paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation.

In the work book, you can indicate a specific reason for dismissal (alcohol) or simply put the details of the Code article

Usually, employees with such dismissal do not go to court, since it is almost impossible to prove the opposite if the fact took place and it is correctly recorded.

Privacy violations

A more interesting option to consider is the disclosure of secrets protected by law (commercial, official, etc.) that became known to the employee in connection with the performance of his job duties, including the disclosure of personal data of another employee (subparagraph “c” of paragraph 6 of part one of Article No. 81 Code).

Several points are important at this point:

• the employment agreement must contain a non-disclosure requirement;
• and it is also clearly stated what is considered a secret;
• Confidential data includes only information obtained by a person in the performance of his or her official duties (for example, a company’s trade secret may include the customer base, sales volumes and dynamics, profits, market analytical data purchased or developed thanks to internal resources, etc.) .

If at least one of the listed points is not met, termination of the relationship under this subparagraph may be considered illegal. As with the other sections of this article, evidence of the legality of dismissal on this basis rests with the defendant company.

Please note that it is impossible to terminate the contract if:

• there is no list of information constituting a commercial, official or other secret;
• if the disclosure of the employee’s personal data occurred as a result of improper storage, since the employer is responsible for organizing the storage and use of employees’ personal data.

Therefore, it is important: in order to be able to impose penalties on an employee, the company must develop regulations for the protection of confidential information. It is introduced by local regulations, which must be familiarized to all employees upon signature. The absence of such a document may be grounds for cancellation of the penalty in court.

Theft is a reason for dismissal

Breaking an employment relationship due to theft or embezzlement is a rather labor-intensive and lengthy process for an organization. And even taking into account the fact that the theft of both corporate and other people’s property (including colleagues or clients) can be recognized as a basis, it must be taken into account that dismissal under this article will be recognized as legal only when a court decision comes into force.

Therefore, it is not enough to catch a thief by the hand; in order to fire him under the article, you need to obtain a resolution from the competent authority. Thus, having in hand an act of private security that recorded the fact of theft, it will not be possible to justify the legality of the dismissal of the guilty employee, since this service does not have the right to apply administrative penalties. Consequently, it is possible to dismiss a stealing employee only within one month after the court ruling.

In this case, the entry into the labor record goes under the letter “g” (the article is still the same - eighty-one, part one, paragraph 6).

The wording in the labor report when rendering a court verdict on the basis of “theft” is registered as follows:

At the same time, the legislation makes it possible to present a claim to the offender for compensation for damage to the company; we will give an example of a statement of claim.

Photo gallery: statement of claim for compensation for damage caused by an employee

In the statement of claim, you need to set out everything on the merits of the case (example, part of the statement No. 1) In the claim you need to provide evidence (example, part of the statement No. 2) Put forward demands (example, part of the statement No. 3) In the concluding part, provide a list of attached documents (example, part of the statement No. 4)

Dismissal for committing an immoral offense

Please note that only employees performing educational functions (teachers, instructors, mentors, educators, nannies, etc.) can be fired for committing an immoral offense.

Employees performing technical auxiliary duties (watchman, driver, accountant, etc.) cannot be fired on this basis (clause 46 of the Resolution of the Plenum of the Supreme Court No. 2 of March 17, 2004).

The concept of “immoral act” is not defined in law. Therefore, the employer independently decides which offense should be considered immoral. In practice, the following is considered immoral:

• petty hooliganism;
• drinking alcohol in a public place and involving minors in this;
• fights, scandals;
• animal abuse;
• taking drugs;
• foul language in the presence of children, etc.

It does not matter where the offense was committed: at work, on vacation or at home.

The work book in this version indicates the basis - paragraph 8 of the first part of Article 81 of the Labor Code of the Russian Federation.

Beating a child in a family can be difficult to prove, but such “fathers” should be fired not only from teaching jobs, this is already the prerogative of the Criminal Code of the Russian Federation

Dismissal of unscrupulous employees for repeated misconduct

There are cases when an employee sabotages the orders of management, refuses to fulfill his job duties, is absent from the workplace for a long time, and is clearly not eager to fulfill his work duty, but comes to receive his salary regularly. In case of such behavior, the employer has the right to dismiss the negligent employee under paragraph 5 of Article No. 81 (repeated failure by the employee to fulfill his job duties).

You should know that when applying such a basis, the following mandatory conditions must be met:

• violation of labor discipline must be recorded on paper;
• from the wording of the grounds it follows that the offense committed must be registered at least 2 times;
• Moreover, it is important that the fact of the first (or previous) violation was recorded no more than a year ago;
• “minor” disciplinary violations are considered:
  • failure to comply with the orders of the immediate supervisor, which relate to his direct functional responsibilities, enshrined in the job description or in the employment contract, failure to meet deadlines for completing work or submitting reports, and other actions that disrupt the work rhythm of the enterprise;
  • frequent leaving the workplace for no reason and violating internal rules: being late, leaving work before the end of the shift, constantly drinking tea, etc.;
  • refusal or evasion of a medical examination of an employee who holds a certain position requiring mandatory examination, or when the employee refuses to undergo (during work) special training, passing qualifying exams in occupational safety, health, safety, civil defense, etc.;

Please note: disciplinary action includes, among other things, a person’s refusal to undergo a scheduled or unscheduled certification if it was established by a local regulatory act of the enterprise. This makes it possible to fire a person who, in the employer’s opinion, does not meet the proper qualifications. To do this, you need to issue at least 2 penalties during the year (for any of the above reasons).

Algorithm for applying disciplinary action and subsequent dismissal

Let’s look at the question: how can an employer competently confirm a disciplinary violation and legally terminate an employment relationship on the basis of an employee’s failure to fulfill official duties.

Step-by-step instructions in case of dismissal “under article” are as follows:

1. For the initial registration of violations of discipline by the employer, acts of misconduct can be used, which are confirmed by two witnesses. These include the following documents: official or memos, data from reporting inspections, results of audits, etc. If a subordinate has not completed the specific task assigned to him, an internal memo is written. When an employee has not been on site for a long time, a report is drawn up. The report describes the offense committed, indicating the date and place. In this case, it is recommended to refer to the specific clause of the job description, contract or internal regulation that was violated.

   The report can be drawn up on the basis of employees’ failure to fulfill official duties; do not miss the point that 2 witnesses to the incident must sign on the original

2. The next step is to obtain an explanatory statement from the employee about the reason for the violation, this must be done in writing (Article No. 199 of the Code). It is advisable at this point to draw the person’s attention to the fact that if he does not give an explanation, this will not affect the result, and the DV will still be applied. This can be done in the notification. If the violator does not want to sign the notice, a refusal act is drawn up.

   The notice of explanation must indicate all violations (if there were several, as in the example)

3. After 2 working days, if the explanatory note has not been provided, a corresponding act is prepared.

   If the employee refuses to sign the notification, the text is read out loud to him in front of witnesses, this is enough for notification, and a refusal act is drawn up

4. If the violator of labor discipline nevertheless provides an explanatory note, it is sent to the immediate supervisor, who imposes a resolution on the decision made and appoints executors according to it. Example: “To the head of the HR department I.I. Sidorova. The justifications given in the explanatory note are considered disrespectful. Issue an order to impose a penalty - a reprimand. Deadline: April 10, 2018 (signature, date).”

   In an explanatory note, a person can speak with reason about the reasons for committing a disciplinary offense

5. As soon as the explanatory note or act of refusal reaches the personnel department, an order is issued to apply a disciplinary sanction (remark or reprimand) to the violator. There is no unified form for such a solution.

   The order on disciplinary action indicates all the details of all previous documents

6. The next step is to familiarize the person with the order to issue him a DV. The HR officer is given 3 working days for this (from the date of publication of the document). If a person does not want to endorse the decision, this is reflected in an additional act.
7. In the case of a serious violation, which provides for dismissal after a single violation (Article 81, paragraph 6), you can immediately issue the following order - to terminate the contract. If the violation is less serious, the second offense must be recorded according to the same principle (not necessarily on the same basis as the first). At the same time, you need to know that no more than one year should pass between the first and subsequent violations. The next DV is issued in the same way as the first, and the documents indicate that the offense was not committed for the first time. For example: “Since I.I. Sidorova was already subject to disciplinary action in February 2018; I consider it necessary to dismiss her for repeated failure to fulfill her job duties under paragraph 5 of Article No. 81 of the Labor Code of the Russian Federation.”
8. Next comes an order to apply a disciplinary sanction, but not in the form of a reprimand, but with a resolution - termination of the employment contract under a certain article.
9. The next and final document will be the order to terminate the employment contract with the employee (in form No. T-8).

   An order to terminate an employment contract with an employee is drawn up in a standard manner, indicating the article and full grounds

10. The final step is the registration of labor and payment on the day of dismissal, which includes wages for time worked and compensation for vacation days not taken off.

It is important for both parties: the employer has the right to deprive a bonus, issue a reprimand or reprimand and dismiss “under the article” even if the person submitted a letter of resignation of his own free will. Labor law rules here determine that the relationship between the employee and the employer ends only after two weeks have passed after the application is submitted. Therefore, violations committed during work can be qualified and accepted for dismissal under “bad” articles.

What you need to know when being fired “under article”

Each section of the Labor Code of the Russian Federation regulating the termination of an employment contract has its own fundamental principles and nuances. Thus, for all reasons for termination of employment relations for articles that compromise the employee, there are a number of common points, which include:

• The main thing when carrying out the procedure is to go through all the stages of imposing a disciplinary sanction on the dismissed employee. As already mentioned, in some cases one serious offense is enough for this, in others - at least two.
• Article No. 192, which defines the forms of DV, refers to only 3 types of penalties:
  • a remark - necessarily recorded in writing - is the most loyal punishment;
  • a reprimand, which must be documented, is the next most serious step;
  • dismissal “under article” is the most serious DV.
• The next important point is that termination of employment relationships “under the article” should only take place if there is a solid evidence base; in this case, when justifying the legality of the decision, the employer must have a full package of documentation drawn up in accordance with all legal requirements. The employer thereby provides himself with insurance if the fired person goes to court. The documents in the defendant’s hands will become real proof that the employer is right.
• At the same time, the company (HR) upon termination of the contract under any of these clauses must have a set of documents accompanying the labor activity, as well as local regulations and regulations:
  • job descriptions if a person is “dismissed” due to non-compliance;
  • Confidentiality clause in case of termination of contract in case of violation of trade secrets;
  • internal rules - if it is planned to dismiss an employee, for example, for being late, etc.
• Fifth - time limit after collection:
  • the employer is given the right to dismiss a person within one month as soon as the fact of a violation (first and only or subsequent) has been certified;
  • Moreover, this time does not include periods when a person was on sick leave (with the exception of a leave sheet for caring for a family member, this period is taken into account in this calculation), was on vacation, as well as days when the necessary opinion of the trade union was taken;
  • but under all the above conditions, the penalty cannot be issued after six months;
  • the exception here is a reprimand issued as a result of an audit or financial audit; in this case, the employer has 2 years (the period of the trial is not included in this period).
• Sixth, the basic rule of imposing a disciplinary sanction must be observed: the list of DVs is exhaustive, therefore the employer does not have the right to apply other types of punishment (fines, deprivation of bonuses, etc.) to the violator. Only one penalty can be applied for each violation.
• You should also remember the consequences: if a labor offense is committed and an employee is charged with DV (no matter a reprimand or a reprimand), the employer has the right not to pay the employee incentive payments in whole or in part, but only if local regulations provide for it, and if repeated (within one year) violation of labor discipline, dismiss the employee (clause 5 of part one of article No. 81 of the Labor Code of the Russian Federation).
• You need to know that any employee can be fired “under article” if desired, including categories that enjoy exemptions for dismissal under other articles (single mothers, part-time working mothers with children under three years old, etc.). It must be taken into account that dismissal for any reason (except for liquidation of the company) is prohibited:
  • while a person is on leave (annual paid or without pay, to care for a child until he reaches the age of three, as well as on educational leave);
  • during sick leave, and you need to know that this rule does not apply to cases of sick leave for a sick family member; during this period, dismissal is possible.
• Penalties are not included in the labor report (unless, of course, this is the final stage - dismissal).
• And lastly: any type of DV (with the exception of dismissal, of course) has a statute of limitations - 1 year from the moment it was discovered and documented. After this period, the collection is considered repaid.

We recommend that all personnel officers who carry out dismissal “under the article” know these principles. After all, one mistake during such a procedure can be fatal for the employer. Judicial practice is often replete with decisions not in favor of the company, where even the most minor deviations from the requirements of labor law were made.

How and where to challenge dismissal “under the article” - a word from a lawyer (video)

Employer's liability for illegal dismissal

Much has already been said above that when dismissing people, especially under articles with serious consequences for the employee, HR officers need to be especially careful and legally savvy. It is known that during trials and litigation, as a rule, the courts side with employees. And this is especially true if the employer has prepared a weak evidence base.

What are the consequences of illegal dismissal?

• reinstatement of the dismissed person (and whether to return to the company or not is decided by the person himself at the time of filing a complaint or at the time of making a decision);
• if it is recognized that a person was suspended from work illegally, he is paid a salary for the entire period of forced absence;
• accordingly, the employer will be obliged to restore the length of service lost during forced absences and count the allotted vacation days during this time;
• if the workplace of an illegally dismissed person is occupied, the company will have to vacate him (it is possible to return a person by transfer to another position only with his consent and without a reduction in salary);
• a person can demand compensation for moral damage from the company (this is enshrined in Article No. 394 of the Labor Code of the Russian Federation).

In addition, there are penalties for the employer for late payment of severance pay (Article No. 140 of the Code), withholding the work book (see), etc.

There are enough articles in the Code for dismissing negligent employees. But amateur activity is unacceptable here. Firstly, labor legislation clearly regulates every step of the administration when terminating an employment contract, and violations here immediately turn against the initiator. And secondly, driven into a corner by a “bad” article, a person will try with all his might to restore justice. And if there is even one gap in the employer’s actions, the fired person will definitely try to take advantage of it.