What should be the procedure for dismissing employees under Article 81 of the Labor Code? Agree, this is not such a common occurrence; most often the employee takes the initiative - and the procedure in this case is familiar and understandable. How is termination of employment relations formalized if the employer insists on it? Let's consider this issue in detail.
Labor legislation
The dismissal of an employee under Article 81 of the Labor Code is carried out at the initiative of the employer
With regard to work and rest, the laws of the Russian Federation try to provide employees with many social benefits and guarantees that would provide them with normal conditions, decent wages and confidence that in the workplace the employee will work as long as he wants. Therefore, legislation in matters of dismissal is often on the side of the employee, not the employer - after all, the latter has much more control levers than the former.
The precedents by which an employer can fire an employee are covered in Article 81 of the Labor Code of the Russian Federation, which is called “Termination of an employment contract at the initiative of the employer.”
It discusses several general cases that can concern absolutely any employee, no matter what position he holds, separately describes several points regarding the heads of organizations, their deputies and chief accountants, and also separately mentions people who are involved in education at work or deal with monetary transactions. Despite the fact that the provisions of this article seem to give the employer the right, if necessary, to get rid of an unwanted employee, in reality everything may not be as simple as it seems.
The procedure for dismissing employees under Article 81 in the event of liquidation of an enterprise
Paragraph one of Article 81 states that if an organization ceases to exist for any reason, or an individual entrepreneur intends to terminate his activities, the manager has the right to initiate the termination of employment relations. But this does not mean at all that one morning an employee will come to his workplace and be greeted by a dismissal order.
The employer must notify his employee two weeks before the expected event that the business will cease to exist and he will have to look for a new place of work. If a fixed-term employment contract was signed with the employee, such a warning must be received at least two weeks before the event.
In this case, the employer has the right to dismiss the employee before the period specified in the warning, but in this case it will be necessary to obtain the latter’s written consent, and on his last working day to pay additional compensation in the amount of average earnings. So, for example, if an employee was supposed to be fired on June thirtieth, he leaves first, and his average daily earnings is 500 rubles, then on the day of dismissal he will receive fifteen thousand rubles.
In addition, when calculating, whenever the employment contract is terminated, the employee must receive compensation in the amount of average monthly earnings, and if within two months (for residents of the Far North - three) he cannot find a job, he will receive the same compensation during this period.
The same procedure is maintained when reducing the number or staff of employees in the organization. The only difference is that the employee being laid off will be offered other available vacancies that are available in the organization, and he will be fired only if none of what is offered suits him.
The procedure for dismissing an employee under paragraph 3 of Article 81
Management can fire an employee if he is not suitable for his position, for example, he performs his duties improperly or does not have sufficient qualifications.
It is necessary to take into account the following pitfalls:
- prior to dismissal, other available vacancies must be offered)
- Most often, such termination of labor relations is carried out based on the results of certification)
- It is best if the necessary qualifications and other requirements for the position are set out in the job description.
Clause 3 of Article 81 of the Labor Code of the Russian Federation allows you to dismiss an employee if he does not correspond to the position held
When offering other positions, it should be taken into account that they may be designed for lower qualifications, low salaries, and even involve moving to another area. Firstly, the boss is not obliged to offer a more qualified position; secondly, if the employee does not meet the lower qualifications, then what is the point of offering a higher one?
State-level certification is provided only for certain categories of workers, for example, for bosses, teachers, and Pension Fund employees. Of course, at the enterprise, on the initiative of the employer, certification can be carried out for other categories, but then it is necessary to draw up and approve the Regulations on certification. It is worth understanding that upon dismissal, if an employee wants to go to court, not only the results of certification will be considered - you need to be ready to provide other evidence of the employee’s inadequacy and, without fail, written evidence that he was offered a transfer to other positions.
Dismissal under paragraph 4 of Article 81
If the owner of an enterprise changes, he has the right to replace employees in key positions: the manager, his deputy and the chief accountant. This can be done only within three months and only when ownership of the entire organization has passed into new hands. If, for example, the composition of shareholders was slightly changed or the owner of one of the divisions of the enterprise changed, dismissal under point 4 will not be considered legal.
But the owner has the right to dismiss, for example, either only one manager or all three employees at once.
Conditions for dismissal of an employee under clause 5 of Article 81 of the Labor Code of the Russian Federation. Labor law
The fifth paragraph states that the boss can fire an employee for failure to fulfill his duties if there was more than one such case. In order to do everything according to the law and protect yourself as much as possible from possible litigation, you need to carefully record every step.
For the first violation, you need to draw up a report on the fact of failure to fulfill duties and ask the employee for an explanation in writing. When receiving explanations, it is necessary to make sure that the employee does not have a valid reason for what he did. Based on the results of the proceedings, an order to impose a penalty is drawn up. In case of a repeated violation, the same procedure is repeated, but this time the order will not be for punishment, but for dismissal.
In addition, it is necessary to comply with the deadlines established by law: a penalty for a misdemeanor cannot be imposed later than a month later, it is illegal to punish for a misdemeanor six months after its commission, and a repeated misdemeanor that can lead to dismissal must be committed within a calendar year after first violation.
It should be remembered that in order to prove a violation of duties that the employee allegedly failed to fulfill, these duties must be recorded in writing, for example, in a job description.
Dismissal under Article 81, paragraph 6 of the Labor Code of the Russian Federation
If an employee flagrantly violates internal labor regulations, the employer has the right to fire him, and for this it is not at all necessary to wait for a repeat offense. Such violations include:
- absenteeism)
- appearing at the workplace in a state of alcoholic or other intoxication)
- violation of labor protection rules)
- theft)
- disclosure of state, commercial or other secrets that became known to the employee as a result of his work activities.
As in the case above, the fact of violation must be recorded - by drawing up an act. The employee must provide written explanations for the offense committed, for which he is given two days. And only after this - if the explanations are unconvincing - the boss has the right to begin the dismissal procedure. The employee, of course, is not entitled to compensation (except for what is due for unused vacation days), and neither are offers to transfer to another position.
Dismissal at the initiative of the employer, paragraph 7 of Article 81 of the Labor Code of the Russian Federation
The procedure for dismissal under Article 81 of the Labor Code of the Russian Federation implies notifying the employee of the reason for his future dismissal.
The seventh point is formulated as dismissal due to loss of trust and concerns primarily those employees who work with money, for example, cashiers and accountants. In order for the dismissal to be completely legal and the employee not to have the desire to go to court, it is necessary, as in other cases, to have solid evidence of questionable actions on the part of the employee.
Typically, such employee actions fall under the category of disciplinary offenses, so explanations must be received for them and appropriate punitive measures applied. In addition, deadlines must be observed: two days to receive clarification, a month to fire the employee.
Dismissal of an employee under paragraph 8 of Article 81
According to this clause, it is possible to dismiss an employee performing teaching duties if he has committed an immoral act. It does not matter whether the offense was committed in the workplace or outside it, it is believed that an immoral person cannot engage in education.
Dismissal of an employee under paragraph 9 of Article 81 of the Labor Code of the Russian Federation
Under this clause, the owner can dismiss the head of the enterprise, or the chief accountant, or the deputy manager if they acted in such a way as to cause damage to the organization or the organization’s property. It is understood that management must comply with government laws and regulations that apply within the enterprise, and must also put its interests above their own.
As in the above cases, for justified dismissal the fact of damage must be recorded, written explanations must be received, and the dismissal itself must be made within a month from the date of the violation.
If there was no damage to the enterprise, but the manager acted clearly in pursuit of his own interests - for example, he received additional profit in his personal pocket - and this can be proven, the owner still has the right to terminate the employment relationship.
LABOR CODE
In what cases can an employer fire an employee?
“I’m interested in in what cases an employer has the right to fire an employee. I would like to receive detailed information." Sergey Viktorovich (Kursk).
Answers Senior Assistant Prosecutor of the Seim District Anzhelika Ovsyannikova:“An employer does not have many grounds on which he can dismiss employees on his own initiative. Their list is determined by Article 81 of the Labor Code of the Russian Federation. In addition, there are additional grounds for dismissal of certain categories of workers. The list of these grounds is clearly limited, and in almost all cases the employer is obliged to justify the dismissal and follow a strictly defined procedure, no matter whether it is a reduction in staff or disciplinary sanctions. Unlike an employee, an employer does not have the right to terminate an employment contract, guided only by his own desire without sufficient grounds.
Thus, an employment contract can be terminated by the employer in the following cases:
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
b) the employee appears at work in a state of alcohol, drug or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization.
It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.”
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I have this question, I work in the oil industry for the Rosneft company. I passed a medical examination, as a result of which an order was issued against me not to engage me in work at heights due to my eyesight, I will probably be fired (
Hello, I work at a microfinance company, on my legal weekend there will be a meeting that I cannot go to for personal reasons, having notified my superiors about it. I received an answer: write a letter of resignation, supposedly attendance is mandatory, but there is no such condition in the employment contract and in the company regulations, even if they create it, my signature is not available for review, please tell me what to do in such a situation
Based on regulatory legal acts and the Labor Code of the Russian Federation (hereinafter referred to as the Code), the labor relationship between an employer and an employee, fixed by agreement, can be terminated at the initiative of any party, as well as in situations that do not depend on their will. It is important for the employer to comply with legal requirements governing relationships with employees.
It is necessary to correctly apply the articles for dismissing an employee. In the future, this will allow you to avoid unwanted meetings with representatives of the labor commission, as well as long and exhausting proceedings in court. Russian legislation guarantees not only the citizen’s right to work and decent payment, but also the employer’s compliance with the requirements of the Code upon dismissal. A properly organized personnel service at an enterprise is the key to successful work and the reputation of a manager.
How to resign of your own free will?
Based on Article 80 of the Code, an employee may terminate the employment relationship on his own initiative. To do this, you need to write a corresponding application, which can be submitted for consideration at any time. The restrictions in this case relate to the period during which the employee has the right to terminate his activities. All employees must work for at least two weeks from the date of application, and management for at least one month. The legislation provides for the possibility of early termination of contractual obligations with the employer if the employee has entered a higher educational institution, in connection with retirement or in other situations provided for in the Code.
During the mandatory service, it is possible to withdraw the application and terminate the dismissal procedure. It will be possible to save the position and place of work if it is vacant and there are no restrictions on refusing a new applicant. Upon expiration of the period of compulsory service, the employer is obliged to make a full payment on the last working day. If the employee is not paid the amounts due in due time, he is considered not dismissed, and his application is invalid.
What are the advantages of dismissal by agreement of the parties?
In fact, dismissal with an agreement between the parties can be initiated by both the employee and the employer. Article number 78 of the Code provides this opportunity and is not limited by any prohibitions. For an employee who is resigning for personal reasons, this type is more preferable. It makes it possible, in case of registration at the labor exchange, to receive benefits based on calculations made on the salary from the last place of employment.
The law does not establish strict regulations for drawing up an agreement. In this case, it is customary to take as a basis the appendix to the employment contract, which usually contains clauses with job responsibilities, financial responsibility and the rights of an employee in a certain position. It may also indicate clauses with the conditions for expected career growth, the amount of bonuses for individual activities, as well as the amount of compensation payments and deductions in the event of failure of the parties to fulfill their obligations.
After compromises have been found and there are no unresolved issues left. An agreement on the absence of mutual claims is signed between the employer and employee. Within the specified period, the employee may be dismissed with receipt of due cash payments on the last working day.
How to fire employees at the initiative of the employer?
This opportunity is provided by Article 81 of the Code, which regulates the process of initiating termination of employment relations by the employer. It provides a complete list of categories of employees to whom this procedure can be applied. The circumstances under which an employee may lose his job are also reflected in this article. The employer has every right to dismiss employees in the following cases: termination of the enterprise's activities due to liquidation, reduction in the number of personnel, due to official inconsistency, violation of official duties, for repeated violations, in connection with theft and embezzlement, for actions considered immoral (applies to certain categories of employees ), in case of loss of trust, for forgery of personal documents, etc.
Details on how to properly dismiss an employee at the initiative of the employer:
It is necessary to take into account the documented process of the employee’s labor activity to determine the number of violations and their systematics. For example, Article 81 of the Code allows if the offender misses the entire working day without a valid reason or is absent from the workplace continuously for four hours.
How to dismiss if circumstances arise beyond the control of the employee and the employer?
This situation is reflected in Article 83 of the Code and allows for dismissal if circumstances arise that do not depend on the will of the parties. The legislation defines their list. And it includes the following cases: being called up for military service, reinstatement of a previously dismissed employee, refusal to transfer to another job, losing elections to an elected position, inability to perform their functional duties due to health reasons, death and other cases specified in this article. To terminate an employment contract, documentary evidence of the validity of dismissal under specified circumstances is required.
On the specifics of dismissal of workers with group 3 disabilities:
What grounds for dismissal does an employer have other than the Code?
Regulatory acts of various departments can serve as a legal basis for the dismissal of employees of controlled organizations. For example, a violation of the Federal Law “On Education” may serve as a reason for termination of a contract for employment in educational institutions. For civil servants, disclosing state secrets or simultaneously engaging in commercial activities is a violation of the Federal Law “On Public Service”.
Each employer is obliged to conduct its activities based on compliance with Russian legislation. The Code should select articles for the dismissal of an employee that will most accurately characterize the reason for termination of the employment relationship.
If you and your employer have reached a consensus on the issue of your dismissal, Article 79 of the Labor Code of the Russian Federation will be indicated in the work book. It also provides for the case when you replace an employee who is temporarily absent due to long-term disability, is on maternity leave, etc. In this case, you are fired after the return of the absent employee whom you are replacing.
They may also enter into an agreement with you to perform some specific work. This type of work is also urgent and is completed immediately after you achieve the required result. The same applies to seasonal types of work.
Dismissal at the request of the employee
If for any objective reasons you want to terminate your employment contract, you need to notify management two weeks before the day of dismissal by writing a corresponding statement. In this case, they are fired under Article 80 of the Labor Code of the Russian Federation.
When the employer is the initiator of dismissal
If the initiative on the issue of dismissal comes from your management, acting as an employer, then the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation will be indicated in the labor contract. Under this article, you may be fired in the event of: liquidation of this organization; staff reductions; inconsistency with the position held; insufficient qualifications identified based on the results of certification; change of owner of the organization (if you are filling the position of manager, deputy manager or chief accountant); irresponsible attitude towards work, expressed in repeated failure to fulfill one’s job duties in the absence of valid reasons, etc. That is, each case is enshrined in the corresponding paragraph of Article 81 of the Labor Code of the Russian Federation. However, under this article you cannot be fired if you are temporarily disabled or on vacation at that moment.
Dismissal may also occur due to circumstances beyond the control of the parties. This is also provided for by labor legislation. This includes: conscription for military service, sentencing an employee to punishment, etc.
The most common dismissal is at the request of the employee, as people are in an endless search for better and more interesting things.
It is also quite common to be fired due to the expiration of a term when working under a fixed-term contract. This is primarily caused by the needs of people. They get sick, take care of babies, elderly parents, and at this time someone has to replace them.
Dismissal under a number of points of Article 81 of the Labor Code of the Russian Federation related to incompetence, irresponsibility and violations in work, often negatively affects further work activity.
