Article 81 of the Labor Code of the Russian Federation, part 1. Illegal dismissal due to a reduction in the organization’s workforce
The article on loss of trust in the Labor Code of the Russian Federation is intended to protect the interests of the employer. It allows you to protect the organization’s property and prevent damage from the employee. However, it is not so easy to carry out a suspension due to loss of confidence. The person providing the work must know all the nuances of the operation and be able to apply them in practice.
Reason for dismissal of an employee
This section of the law applies to employees who issue money or interact with company property. The trust that the head of the company places in an employee is recorded in a document that is drawn up upon appointment to the position. The person will have to sign a liability agreement.
Dismissal of an employee under clause 7 of Art. 81 of the Labor Code of the Russian Federation “Loss of trust” can be carried out if a person has been convicted of the following offenses:
- bribery;
- theft;
- fraud;
- deviation from the internal rules of the enterprise regarding interaction with material assets;
- failure to comply with the rules for performing cash transactions;
- waste.
Inconsistency with the position held or possible damage to the company’s material assets can also cause a loss of trust on the part of the employer.
If an employee wanted to steal the organization’s property, but was unable or did not have time to do so, the employer has every reason to dismiss the specialist under Article 81 of the Labor Code of the Russian Federation.
The guilty act does not always occur in the previous position. If it turns out that at the previous place of work the employee was caught committing a guilty act, the employer can dismiss the employee by resorting to Article 81 of the Labor Code of the Russian Federation.
Termination of an employment contract with an employee may be based on a past court decision.
It is possible to dismiss an employee due to loss of trust only if there is evidence of the employee’s guilt. If they are missing, you will not be able to use the article of the law. It should be remembered that the employer has the right to dismiss an employee if there is a guilty act. However, he is not obliged to do this.
Employees subject to dismissal under article
Having thought about how the step-by-step procedure for dismissal is carried out due to loss of confidence in an employee, the owner of the company must remember that not every specialist can be forced to leave the company.
The article applies only to those officials who have access to the material assets of the company.
Suspension from work due to loss of confidence applies to:
- movers. who take goods from the warehouse without the owner’s knowledge and sell them externally;
- security guards. allowing unauthorized persons to enter the closed area;
- sellers. those selling alcoholic products after 22:00;
- workers. who use the issued tools to carry out repairs in their apartment;
- cashiers. cheating customers and using excess proceeds for their own purposes.
When faced with one of the above or similar cases, the employer has every right to apply the article and fire the specialist.
Who can't be fired
Which employee cannot be fired? The law prohibits the application of Article 81 of the Labor Code of the Russian Federation to personnel who do not interact with the material assets of the company. Thus, loss of trust cannot be a reason for dismissal:
- merchandiser. who does not directly work with the company’s property;
- accounting specialist. carrying out non-cash payments;
- employee. divulging details of the work plan to a competing company;
- person. being part of a group of workers who committed a guilty act, unless his personal guilt is proven.
- women. those expecting a child cannot be fired either.
Registration procedure
If the owner of the enterprise has figured out who the employer has the right to fire due to loss of trust, he can proceed to carry out the procedure. First, he will have to prove the existence of a guilty act.
Another employee of the company can take the initiative and independently inform their superiors about the event. There is no special form that needs to be filled out for the operation. To convey information to the owner of the enterprise, the specialist must write a note.
It should include:
- Full name of the person submitting the note;
- information about the event and a description of the employee’s guilty actions;
- signature and its decoding;
- date of writing.
If the commission of a guilty act was not discovered by the organization’s specialists, the procedure for recording the incident changes. When a violation is discovered by people who do not work at the enterprise or by law enforcement officers, a note is not written. Their testimony is enough.
Witness testimony can be used to confirm the offense.
If a violation was discovered during the inventory, a report is drawn up. The document records the name of the person who found the shortage and the name of the product that is missing. Based on the act, a commission is convened. It should include employees of the organization who can investigate the situation without bias. The commission is convened on the basis of an order.
The document states:
- date of;
- composition indicating the names and positions of members;
- powers of the commission;
- purpose of creation;
- the period for which the body is created.
The order must be certified by the signature of the chief official of the organization and sealed. From this moment on, the commission can begin to fulfill its duties. She must:
- Find out the circumstances surrounding the damage to the company.
- Determine the amount of losses incurred.
- Find out who is to blame for what happened.
- Collect evidence confirming the employee’s involvement in the incident.
- Determine the punishment that will be imposed on the guilty specialist.
The results of the commission's activities are recorded in acts, explanatory notes and certificates.
If members of the body cannot independently find out the reasons for what happened, the owner of the organization has the right to contact law enforcement agencies. However, to dismiss an employee due to loss of trust, a commission verdict is sufficient.
Explanatory note upon dismissal
If guilty actions are established that give grounds for loss of confidence in the employee, dismissal can proceed. If an employee admits his guilt and agrees to leave the company, the employer may require him to write a note with an explanation. There is no need to formally submit a request. In this case, the procedure will not take much time.
When an employee refuses to leave, the employer must provide him with a document to sign requiring him to write an explanatory note. Refusal to carry out the procedure serves as the basis for drawing up an act that will record the actions of the worker. The explanatory note must be written within 2 working days .
If the employer has not received an explanatory note, he can attach the act to the case materials and dismiss the employee. The employer's actions will be considered lawful.
Read also: When should an employee be paid upon dismissal?
However, if the owner of the organization forgets to complete part of the procedure, the employee will have the right to appeal the manager’s actions in court.
The procedure for dismissal under Article 81 p7 of the Labor Code of the Russian Federation
To simplify the procedure, the employer can use the scheme for dismissing a specialist due to loss of confidence. Actions are performed in the following sequence:
Loss of trust is considered a disciplinary offense. The employer will need to draw up an appropriate order to dismiss the employee.
Penalty measures are applied no later than the receipt of evidence and the commission’s decision. There is no strict form for the order. In the paper, the employer must indicate the details of the culprit, information about the offense and the events that led to the incident.
Having drawn up an order, you must immediately begin the procedure for terminating the employment contract. The reason for termination of cooperation should be a loss of confidence in the specialist due to the actions taken.
The order is submitted to the employee for signature. If he refuses to leave confirmation of familiarization, it is necessary to draw up an act in which the fact of refusal is recorded.
The dismissal of an employee must coincide with the time of termination of the employment contract. For this reason, both documents must appear at the same time. The specialist will have to pay all the money. When applying Article 81 of the Labor Code of the Russian Federation, it will not be possible to withhold compensation for damage caused.
To expect compensation for losses, the employer must go to court.
If an employee finds out that the company has tried to illegally write off part of the amount from the due payments, he has the right to independently contact government authorities with a demand to punish the employer for illegal actions.
Home » Dismissal » Dismissal due to loss of confidence (Clause 7, Article 81 of the Labor Code of the Russian Federation)
Dismissal due to loss of confidence (clause 7 of article 81 of the Labor Code of the Russian Federation)
The article examines the features of registering the dismissal of an employee under clause 7 of Article 81 of the Labor Code of the Russian Federation - due to loss of trust. What is the procedure for dismissal under this article, what documents need to be drawn up to terminate an employment contract with an employee?
Article 81 defines the grounds for dismissal of an employee at the initiative of the employer, the seventh paragraph allows termination of employment relations with the employee due to loss of trust.
The difficulties of dismissing an employee due to loss of trust lie in the need to comply with two conditions:
- On this basis, you can dismiss an employee who directly services commodity or monetary assets. That is, a person who is responsible for the expenditure and safety of certain property. Such employees usually sign an agreement on individual or collective financial responsibility. Each employee of the organization uses company property to perform his or her job function. So a sales manager uses a computer, telephone, desk and other items owned by the enterprise. However, the manager is not responsible for the safety of these things.
- The employee's guilt must be established. It does not matter whether the violation was committed as part of the performance of official duties or during free time.
Features of dismissal
If we are talking about committing an offense, then guilt is established by a court verdict that has entered into force. When an employee has committed a disciplinary offense. then guilt must be established during disciplinary proceedings and recorded in an order to impose disciplinary liability, a sample of which can be downloaded here.
So, for example, a simple shortage of entrusted property, revealed during an inventory of a warehouse, cannot serve as grounds for dismissal due to loss of trust. It is necessary to establish what caused this incident. Various employees of the enterprise have access to such a facility: security guards, loaders, pickers and others. In addition, theft by strangers cannot be ruled out.
In such a situation, the head of the enterprise can retain the value of the missing property as part of bringing the employee to financial responsibility. But this is not enough for dismissal due to loss of trust.
It is possible to bring an employee to disciplinary liability only within a month from the moment the violation is discovered.
The facts must be documented, because the employee can appeal the dismissal order through the court. The testimony of witnesses during the trial will be taken into account, but many important aspects of the case may simply be forgotten after a few months.
The procedure for dismissing an employee due to loss of confidence
Before making a decision, the management of the organization should obtain an explanation from the employee regarding the commission of a guilty act. If an employee refuses to comment on his actions (or inaction), then this circumstance should be recorded in the appropriate act.
Termination of the contract due to loss of trust under clause 7 of Article 81 of the Labor Code of the Russian Federation is formalized by order of the head of the organization in the T-8 form. This document must contain a link to evidence of the employee’s guilty act (audit report, memorandum, court verdict, or otherwise). The employee gets acquainted with the order against signature.
No prior notice to the employee is required.
On the day of dismissal, a full payment is made to the employee. Wages, required bonuses, and compensation for unused vacation are paid. You should also issue a work book, where a corresponding entry will be made about the termination of the employment relationship due to loss of trust under clause 7 of Article 81 of the Labor Code of the Russian Federation.
Although dismissal due to loss of trust is not related to the employee’s violation of official duties, many employers consider this circumstance as compromising. And they don’t want to hire employees with such an entry in their work book. Therefore, the management of the organization should prepare for litigation.
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Lawyers' answers (1)
Step-by-step instructions for dismissal.
clause 7.
Commitment of guilty actions by an employee directly servicing money
or commodity values, if these actions give rise to a loss of confidence in
him from the employer.
1.1. If, when committing guilty actions
the employee violated some of his work duties, then it is necessary to check
the presence of a document assigning it to the employee: an employment contract, an agreement on
full financial responsibility, job description, etc. Such
the document must be properly drawn up and signed by the employee.
The court is unlikely to give you credit for violating a legally unsecured obligation.
1.2. Documents confirming
committing guilty actions that give grounds for loss of trust (reports
notes from workers who discovered such actions, inventory reports, acts
revisions, etc.)
2. Check whether the employee belongs to the category
persons directly servicing monetary and commodity values, is it legal
classified in this category, is not pregnant, is not on
sick leave, on vacation.
3. A written explanation is taken from the employee
(explanatory note) upon the commission of actions giving grounds for
loss of trust. If after two working days the specified explanation
is not presented by the employee, then a corresponding act is drawn up (an act of refusal
give an explanation). It is advisable that the act be certified by three employees.
4. Analyze the collected documents and available
information on the basis of which questions about the employee’s guilt and loss of
trust in him or maintaining it. In case fault is established
employee, and his actions are recognized as giving grounds for loss of trust,
The dismissal procedure is ongoing.
5. Next, an order (instruction) is issued on
termination of the employment contract.
The order is registered in the Order Register.
6. With the order (instruction) of the employer to
The employee must be informed of the termination of the employment contract against signature. IN
case when an order (instruction) to terminate an employment contract is impossible
bring to the attention of the employee or the employee refuses to familiarize himself with it under
signature, a corresponding entry is made on the order (instruction). About it
said in Art. 84.1 Labor Code of the Russian Federation. If the employee refuses to familiarize himself with the order
termination of an employment contract, it is also recommended to familiarize yourself with the act of refusal
an order, which is certified by the signatures of the originator and two employees. This
the document may be useful in court as additional evidence
employer's correctness.
7. After this, the employee is paid monetary compensation for
unused vacation, wages and other due
payments, make an entry in the work book, personal card. Record about
dismissal may look like this:
"Fired for
committing guilty actions that give rise to loss of trust on the part of
employer, paragraph 7 of Article 81 of the Labor Code of the Russian Federation.”
Or:
"Employment contract
terminated at the initiative of the employer in connection with the employee’s commission, directly
serving material assets, guilty actions giving grounds for
loss of trust on the part of the employer, paragraph 7 of part one of Article 81
Labor Code of the Russian Federation".
Read also: Is it possible to fire an employee on a day off?
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Dismissal of an employee under clause 7, part 1, art. 81 Labor Code of the Russian Federation
Why is it considered that the dismissal of an employee under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation is a complex basis for termination of an employment contract for an employer?
Dismissal in accordance with clause 7, part 1, art. 81 of the Labor Code of the Russian Federation for committing guilty actions by an employee servicing monetary or commodity valuables is provided only if these actions are grounds for loss of trust of the employer.
This is one of the most difficult and problematic grounds for terminating an employment contract with an employee. After all, only workers who directly service commodity or monetary assets (storage, reception, distribution, transportation, etc.) can be fired under this article. And only on the condition that the guilty actions committed by such employees gave the employer grounds for loss of confidence.
That is, on this basis, you can part with only unreliable financially responsible persons.
You can fire an employee who has actually committed an offense if his guilt has been proven. The manager's suspicions alone are not enough.
Guilty actions may include measuring, counting, weighing, receiving payment for services without issuing relevant documents, failure to comply with established rules for the issuance of narcotic drugs or the sale of alcoholic beverages.
In addition, the employer may lose confidence due to the employee's inappropriate or negligent attitude towards his work duties. For example, if an employee issued sums of money without proper registration, stored keys to premises with material assets in the wrong place, or violated the rules for sealing safes, warehouses or storage facilities.
You can also fire for loss of trust an employee who used property entrusted to him for direct service for personal purposes.
The employer is obliged to establish guilt. After all, it happens that the employee is not to blame for the misconduct that occurred, because the employer himself was unable to provide proper working conditions for working with inventory items (for example, he did not install an alarm or a safe). Also, the employee will not be guilty if it is proven that he acted under conditions of extreme necessity (for example, when eliminating a fire or accident).
If guilt is not established, then the employee cannot be fired on the grounds of loss of trust. Even in the event of a shortage or damage to the valuables entrusted to him.
It is also unacceptable, when identifying a shortage of valuables entrusted not to a specific employee, but to a team of financially responsible persons, to express distrust to all members of the team if the guilt of each of them has not been established.
To dismiss an employee on this basis, a court verdict that has entered into force is not required. It is enough only for the concrete fact that the employee has committed guilty actions that give the employer grounds for loss of trust. However, most likely, the employee will try to challenge his guilt and the legality of the dismissal procedure.
Dismissal under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation will be legal if several conditions are simultaneously met:
. the employee has committed a specific offense;
. the employee is engaged in servicing inventory items;
. the employee’s guilt has been established;
. the actions taken give the employer grounds for loss of trust.
The difficulty is that the labor legislation of the Russian Federation does not stipulate a specific list of documents with which an employer can confirm the legality of dismissal for loss of trust. Here, much depends on the nature of the offense and the specific circumstances.
Dismissal for loss of confidence
It is known that the employer has the right to dismiss in connection with the commission of guilty actions by employees directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in them on the part of the employer (Clause 7 of Article 81 of the Labor Code of the Russian Federation).
Termination of an employment contract on this basis is possible only in relation to employees directly servicing monetary or commodity assets. for example sellers, cashiers, forwarders, etc. Moreover, it does not matter whether a liability agreement has been concluded with the employee - it is enough that the employee directly services inventory assets and his job responsibilities include working with such assets.
If an agreement on collective financial responsibility is concluded, then it is impossible to dismiss due to loss of trust of all members of the specified group without establishing the guilt of each of them.
What specific guilty actions can be grounds for dismissal? The Labor Code of the Russian Federation does not provide explanations on this matter. As practice shows, these can be any actions that may be grounds for loss of trust on the part of the administration (shortages, damage, etc.). It does not matter whether such an act was committed once or repeatedly.
The most common situation is when shortages are identified based on the results of the audit. The shortage, of course, must be documented (by official notes and reports, inventory acts, etc.), and it is these documents that will become the basis for documenting dismissal under clause 7 of Art. 81 Labor Code of the Russian Federation.
If the amount of the shortfall is large, then you should prepare to go to court with a claim for compensation by the employee for damage caused to the employer (which, by the way, is only possible within one year from the date of discovery of the damage caused). The fact of dismissal does not matter. The employer does not have the right to withhold the amount independently.
In the following cases, dismissal under clause 7 of Art. 81 Labor Code of the Russian Federation will not be legal :
— dismissal of an employee who does not directly service cash and commodity assets. Thus, it would be unlawful to dismiss an accountant who does not have access to these values;
— dismissal of an employee if his main job is not related to servicing commodity assets, and the work related to their servicing was performed by him temporarily.
- Chapter 17. GENERAL PROVISIONS
- Chapter 18. BREAKS IN WORK. WEEKENDS AND NON-WORKING HOLIDAYS
- Chapter 19. HOLIDAYS
- Chapter 20. GENERAL PROVISIONS
- Chapter 21. SALARY
- Chapter 22. LABOR RATING
- Chapter 23. GENERAL PROVISIONS
- Chapter 24. GUARANTEES WHEN SENDING EMPLOYEES ON BUSINESS TRAVELS, OTHER BUSINESS TRAVELS AND MOVING TO WORK IN ANOTHER LOCATION (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 25. GUARANTEES AND COMPENSATIONS FOR EMPLOYEES WHEN THEY PERFORM STATE OR PUBLIC DUTIES
- Chapter 27. GUARANTEES AND COMPENSATIONS FOR EMPLOYEES RELATED TO TERMINATION OF AN EMPLOYMENT CONTRACT
- Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
- Chapter 29. GENERAL PROVISIONS
- Chapter 30. LABOR DISCIPLINE
- Chapter 31. GENERAL PROVISIONS
- Chapter 32. APPEARANCE AGREEMENT
- Chapter 33. GENERAL PROVISIONS
- Chapter 34. OCCUPATIONAL SAFETY REQUIREMENTS
- Chapter 35. ORGANIZATION OF LABOR SAFETY
- Chapter 36. ENSURING WORKERS' RIGHTS TO OCCUPATIONAL SAFETY
- Chapter 37. GENERAL PROVISIONS
- Chapter 38. MATERIAL LIABILITY OF THE EMPLOYER TO THE EMPLOYEE
- Chapter 39. MATERIAL RESPONSIBILITY OF AN EMPLOYEE
-
Section XII. FEATURES OF LABOR REGULATION FOR SPECIFIC CATEGORIES OF WORKERS
- Chapter 40. GENERAL PROVISIONS
- Chapter 41. FEATURES OF LABOR REGULATION FOR WOMEN AND PERSONS WITH FAMILY RESPONSIBILITIES
- Chapter 42. FEATURES OF LABOR REGULATION OF WORKERS UNDER THE AGE OF EIGHTEEN YEARS
- Chapter 43. FEATURES OF LABOR REGULATION OF THE HEAD OF THE ORGANIZATION AND MEMBERS OF THE COLLEGIAL EXECUTIVE BODY OF THE ORGANIZATION
- Chapter 44. FEATURES OF LABOR REGULATION FOR PERSONS WORKING PART-TIME
- Chapter 45. FEATURES OF LABOR REGULATION OF WORKERS WHO HAVE CONCLUDED AN EMPLOYMENT CONTRACT FOR UP TO TWO MONTHS
- Chapter 46. FEATURES OF LABOR REGULATION OF WORKERS EMPLOYED IN SEASONAL WORK
- Chapter 47. FEATURES OF LABOR REGULATION FOR PERSONS WORKING ON A Shift
- Chapter 48. FEATURES OF LABOR REGULATION OF EMPLOYEES WORKING FOR EMPLOYERS - INDIVIDUALS
- Chapter 48.1. FEATURES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, WHICH ARE CLASSIFIED AS MICRO ENTERPRISES (introduced by Federal Law of July 3, 2016 N 348-FZ)
- Chapter 49. FEATURES OF REGULATION OF WORK OF HOMEWORKERS
- Chapter 49.1. FEATURES OF LABOR REGULATION FOR REMOTE WORKERS (introduced by Federal Law dated 04/05/2013 N 60-FZ)
- Chapter 50. FEATURES OF LABOR REGULATION OF PERSONS WORKING IN THE REGIONS OF THE FAR NORTH AND EQUILIBLE AREAS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 50.1. FEATURES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law of December 1, 2014 N 409-FZ)
- Chapter 51. FEATURES OF LABOR REGULATION OF TRANSPORT WORKERS
- Chapter 51.1. FEATURES OF LABOR REGULATION OF WORKERS EMPLOYED IN UNDERGROUND WORK (introduced by Federal Law of November 30, 2011 N 353-FZ)
- Chapter 52. FEATURES OF LABOR REGULATION OF TEACHING STAFF
- CHAPTER 52.1. FEATURES OF LABOR REGULATION OF RESEARCHERS, MANAGERS OF SCIENTIFIC ORGANIZATIONS, AND THEIR DEPUTY (introduced by Federal Law of December 22, 2014 N 443-FZ)
- Chapter 53.1. FEATURES OF LABOR REGULATION OF WORKERS SENT TEMPORARILY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER AN AGREEMENT ON THE PROVISION OF LABOR FOR WORKERS (PERSONNEL) (introduced by Federal Law dated 05.05.2014 N 116-FZ)
- Chapter 54. FEATURES OF LABOR REGULATION OF EMPLOYEES OF RELIGIOUS ORGANIZATIONS
- Chapter 54.1. FEATURES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
- Chapter 55. FEATURES OF LABOR REGULATION OF OTHER CATEGORIES OF WORKERS
- Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOMS. CONSIDERATION AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW STANDARDS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 56. GENERAL PROVISIONS
- Chapter 57. STATE CONTROL (SUPERVISION) AND DEPARTMENTAL CONTROL OVER COMPLIANCE WITH LABOR LEGISLATION AND OTHER REGULATIVE LEGAL ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law dated July 18, 2011 N 242-FZ)
- Chapter 58. PROTECTION OF LABOR RIGHTS AND LEGAL INTERESTS OF WORKERS BY TRADE UNIONS (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 59. SELF-DEFENSE OF LABOR RIGHTS BY EMPLOYEES
- Chapter 60. CONSIDERATION AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES (as amended by Federal Law No. 90-FZ of June 30, 2006)
- Chapter 62. LIABILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW STANDARDS
Article 81 of the Labor Code of the Russian Federation. Termination of an employment contract at the initiative of the employer
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;
c) disclosure of legally protected secrets(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 theft at the place of work (including petty theft) someone else's property, waste, 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;
7.1) failure by the employee to take measures to prevent or resolve conflict of interest , to which he is a party, failure to provide or provision of incomplete or unreliable information about his income, expenses, property and property obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and property obligations of his spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by the Federal by law dated May 7, 2013 N 79-FZ "On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, owning and (or) using foreign financial instruments" ;
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) one-time gross violation the head of the organization (branch, representative office), his deputies for their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
In what cases is it legal to lay off workers?
To dismiss an employee due to a reduction, the employer must fulfill a number of conditions:
- he must prove the actual reduction in staff;
- exercise the preemptive right to maintain a job, in accordance with Article 179 of the Labor Code of the Russian Federation;
- offer the employee another available job that corresponds to his specialty and state of health;
- notify the employee no earlier than two months before dismissal; the corresponding warning must be signed by the employee;
- make a preliminary request to the trade union to obtain an opinion on the decision to dismiss an employee who is a member or leader of the trade union.
When is dismissal due to inadequacy of the position held legal?
If, as a result of the certification, it is revealed that the employee does not meet the requirements of the position held, the employment contract may be terminated. According to the letter of Rostrud dated 03/06/2013 N PG/118061, such a decision can only be made on the basis of the conclusion of the certification commission. However, before dismissal, the employer is obliged to draw up a written offer for the employee with a list of existing similar vacancies at the enterprise. The employee must confirm by signature that he has read this document. If a suitable vacancy for the employee is not found, the employer issues a dismissal order.
Is it possible to fire an employee who has a disabled minor child?
Employees with disabled minor children are protected by law from dismissal if they are the sole guardian of the child. According to Article 261 of the Labor Code, the dismissal of such an employee at the initiative of the employer can only be carried out under paragraphs 1, 5, 6, 7, 8, 10, 11 of Article 81 of the Labor Code. This means that the manager cannot fire an employee for inadequacy for the position held. Since he is obliged to offer another position in the enterprise in return. The same norms apply to single mothers who are raising a child under three years old or who have several minor children.
Is it legal to fire an employee for failure to fulfill a work plan?
Dismissal of an employee for failure to fulfill a work plan is legal only if the procedure for making this decision was fully followed. That is, the employer must legally prove that the employee cannot cope with his duties. For this purpose, a special internal check is carried out, and the employee writes explanatory notes. If the checks confirm that the manager is right, then he formalizes his dismissal under paragraphs 5 or 6 of Article 81 of the Labor Code.
When is it impossible to fire someone for absenteeism?
Dismissal for absenteeism, Article 81 of the Labor Code of the Russian Federation, paragraphs. and clause 6 allows for the absence of an employee at work for the entire day or entire work shift. Also, absenteeism for more than 4 hours in a row can be counted as absenteeism. An employee may not be at work for a serious and compelling reason: something extraordinary has happened, due to which he will not be able to get to work. So what reasons for absence will not lead to dismissal? There is no special list of such reasons in the Labor Code of the Russian Federation, but they can be identified by analyzing the legislation. So, an employee should not be fired if he provides evidence of his absence from work for the following reasons:
- disability (illness);
- execution of state or public duties (for example, speaking as a witness in court) (Article 170 of the Labor Code of the Russian Federation);
- blood donation and medical examinations related to this (Article 186 of the Labor Code of the Russian Federation);
- participation in a strike (except for cases of failure to fulfill the obligation to stop it) (Article 414 of the Labor Code of the Russian Federation);
- arrest;
- Emergency situations related to transport problems (for example, flight cancellation, accident);
- absenteeism from work due to a delay in salary for more than 15 days (with written notification to management) (Article 142 of the Labor Code of the Russian Federation).
Dismissal for absenteeism
When dismissing an employee under Article 81, paragraph 6 of the Labor Code of the Russian Federation, management must follow a certain procedure. Before directly applying disciplinary action in the form of dismissal, it is necessary to obtain from the employee a written explanation of the reasons for his absence. The employee has 2 days to write an explanatory note. If an explanation is not provided within this period, management draws up a report about this. Dismissal under Article 81, paragraph 6 of the Labor Code of the Russian Federation will be legal if the employee refuses to give written explanations of the reasons for his absence and cannot confirm them with documents. If an employee writes an explanatory note and gives the manager a certificate or document justifying his absence, then the decision to recognize the reasons as valid rests with the management. The Supreme Court of the Russian Federation explains that the management of the organization must carefully assess the importance of the reasons for absence and apply the penalty that is proportionate to the employee’s misconduct. If management still dismisses an employee, despite the fact that he considers the reasons for his absence from work to be valid and has provided explanations on time, he has the right to appeal such dismissal. In this case, the employee can file a claim in the district court at the place of work or residence. In this case, they do not pay state duty, since the claim arises from labor. relationships.
Dismissal due to fake sick leave
Answering this question, we can say more: fake sick leave entails not only dismissal, but also liability under a criminal article. The sick leave form is an official document on the basis of which benefits are paid. It also serves as a justification for the person’s absence from the workplace. It is illegal to receive benefits using a false document and present it as proof of your absence from work. There are many ways to distinguish a fake hospital form from a genuine one: a genuine document has a lot of distinctive features. These are watermarks, a barcode, the color of the paper and the fibers from which it is composed, the color of the ink with which the sheet is filled, etc. Providing a false sick leave immediately entails three different types of liability: disciplinary, financial and criminal. Article 81 of the Labor Code will be applicable as disciplinary liability in case of dismissal for absenteeism. Failure to show up for work without justification is considered absenteeism and may result in dismissal if the employer is able to strictly observe the procedure and deadlines for applying penalties. A false sick leave certificate cannot be evidence of a valid reason for absence. This means that even if the truant provides this fake document on time, management has the right to apply the strictest penalties, based on dismissal. As a financial liability for an employee who has presented a false document, the requirement to return the amount of disability benefits, if he managed to receive it, is considered. If you refuse to return the money, the amount may be withheld from the salary, but in the amount of no more than 20% of each payment. The remainder of the debt is collected through the court. Plus, the employer may demand compensation for losses - for example, examination costs. As a criminal liability when using a deliberately forged document, the norm of Part 3 of Article 327 of the Criminal Code of the Russian Federation is applicable. The degree of punishment varies: the violator may be sentenced to a fine, compulsory or correctional labor, or to arrest for up to 6 months. In order to bring the culprit to justice, the management of the organization or the FSS of the Russian Federation (if they discovered the fake) contact the Department of Internal Affairs. Depending on the circumstances of the document falsification and the presence of a criminal purpose, other provisions of the Criminal Code of the Russian Federation may be applied. So, if the sick leave form was forged independently, then Part 1 of Article 327 of the Criminal Code of the Russian Federation is subject to application, the punishment for which is more severe - you can be imprisoned for up to 2 years. If an employee expected to receive cash payments through fraud, then Article 159 will apply. 2 of the Criminal Code of the Russian Federation, the fine for which is heavier and also provides for restriction of freedom for up to 2 years. Thus, an employee’s attempt to use a fake sick leave certificate can lead to a lot of negative consequences for him. The minimum that can be faced for such a forgery is disciplinary action. Maximum - imprisonment for 2 years.
Is it legal to dismiss under clause 5 of Article 81 of the Labor Code of the Russian Federation if an employee commits two offenses on the same day?
All employees must strictly observe labor discipline - obey the rules of conduct defined by the Labor Code of the Russian Federation, laws, local acts and labor. contracts. Violations of discipline are an offense for which management has the right to impose a disciplinary sanction on an employee (Article 192 of the Labor Code of the Russian Federation). There are three penalties: reprimand, reprimand and dismissal. Before applying a penalty, management is obliged to take an explanatory note from the employee within two weeks. If the explanatory note is not written, an act is drawn up. It is important for the employer to have time to apply penalties within a month from the date of discovery of the violation. An employee's time of illness or vacation is not included in this period. The order for collection must be given to the employee for signature within three days from its issuance (this means working days, not counting the time the person is absent from work). If you refuse to familiarize yourself with the order, a report is drawn up. Dismissal is the most severe type of disciplinary action. Work. the contract is terminated under Part 5 of Article 81 of the Labor Code of the Russian Federation if the employee repeatedly violates labor discipline. An employee can be dismissed if there is repeated failure to fulfill job duties and if there has been a previously applied disciplinary sanction (for example, a reprimand). From the wording of this norm it follows that the employee must already have a reprimand or reprimand, so that if he commits another offense, he can be dismissed under this article. It is worth clarifying that a disciplinary sanction remains with the employee for a year, unless it is lifted early (Article 194 of the Labor Code of the Russian Federation). For each offense, only one penalty can be imposed. If an employee commits two violations in one day, he can receive two penalties at once - one for each of his offenses. But since these penalties will come into force simultaneously, management does not have the right to dismiss the employee in this case. Dismissal is possible only if on the day of committing two violations of discipline the employee already had a penalty in the form of a reprimand or reprimand.
Is it legal to dismiss the warehouse manager due to loss of trust if the reasons for the detected shortage have not been identified?
According to clause 7 of Article 81 of the Labor Code of the Russian Federation, an employee who performs servicing of monetary or commodity valuables may be dismissed if his guilty actions give grounds for the employer to lose confidence in him. If a warehouse employee is a financially responsible person, then if there is a shortage of goods, he falls under the grounds for such dismissal. However, dismissal under clause 7 of Article 81 of the Labor Code of the Russian Federation is a type of disciplinary sanction, and when applied by management, the norms of the Labor Code of the Russian Federation and the established procedure must be strictly observed. Penalties can be brought in the event of failure to perform job duties and functions through the fault of the employee. The employee’s guilt must be established and proven. It is not possible to justify dismissal on the employer's assumptions. Therefore, the very fact of detecting a shortage cannot indicate the commission of guilty actions by a specific employee. If the reasons for the shortage have not been identified and culpable actions have not been established, it is impossible to dismiss a financially responsible warehouse worker under clause 7 of Article 81 of the Labor Code of the Russian Federation due to loss of trust.
Can they be fired under Part 3 of Article 81 of the Labor Code of the Russian Federation in the absence of higher education?
An employer can initiate dismissal of an employee if he is not suitable for the position due to insufficient qualifications (Part 3 of Article 81 of the Labor Code of the Russian Federation). Qualification is confirmed by certification results. The very concept of “qualification” implies the level of knowledge and skills of an employee in the profession. There is no mention of the employee’s education in the specified norm, however, the presence of education is one of the factors that is assessed by the certification commission. It is impossible to terminate a contract with an employee without grounds. The basis in our case is the findings and conclusions of the certification commission. And such a commission evaluates the level of business skills of the employee, including the level of education. In 2012, Article 195.2 of the Labor Code of the Russian Federation was introduced on professional standards and the level of qualifications required to engage in certain professional activities. But the demands of Prof. standards are mandatory only if the relevant provisions are enshrined in local regulations. acts of a specific employer and in the employee’s job description. Thus, it turns out that dismissal due to lack of higher education is possible under certain circumstances. If prof. standards establish the need for higher education to work in the profession, and at the same time, the provisions of the standards are supported by the regulations of the organization, then the employee can be dismissed for inadequacy of the position held. However, the certification commission cannot be guided by prof. standards. If the company’s documentation does not contain any requirements for higher education, then the dismissal of an employee under Part 3 of Article 81 of the Labor Code of the Russian Federation is unlawful. So, an employee can be fired due to lack of education only if the requirements for the need for a university diploma coincide in national professional standards and the company’s regulatory documents.
To receive severance pay for the second month after dismissal, the employee at the end of the first month after dismissal must provide the employer with a work book, from the contents of which the employer could be sure that at that moment the employee is not employed in another job.
The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.
In addition, the employer is obliged to pay severance pay to employees dismissed on this basis in accordance with Article 178 of the Labor Code of the Russian Federation:
Exact algorithm for dismissal due to staff reduction (art.
“The employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in part two of this article, paying him additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal.”
3. Cash payments in the amount of average monthly earnings, and the average monthly earnings are retained for the period of employment, but not more than two months from the date of dismissal (including severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within TWO WEEKS after the dismissal the employee applied to this body and was not employed by it.
What payments are due upon dismissal under Article 81 paragraph 2 of the Labor Code
Upon termination of an employment contract due to layoffs
number or staff of employees of the organization (clause 2 of part one of article
81 of the Labor Code) the dismissed employee is paid a day off
a benefit in the amount of average monthly earnings, and is also retained
average monthly earnings for the period of employment, but not more than two months
from the date of dismissal (including severance pay).
Average daily earnings for payment
vacations granted in working days, in cases provided for by this
Code, as well as for payment of compensation for unused vacations
determined by dividing the amount of accrued wages by the number
working days according to the six-day working week calendar.
Payments upon dismissal due to staff reduction - procedure and terms of payments
- On the day when the contract with the employee is actually terminated, he receives all payments based on the law.
- For the next 30 days, the employee does not receive any benefits, with the exception of sick leave, if during this period he becomes incapacitated, that is, falls ill.
- In the second month, if a person does not find a job, he has the right to receive benefits based on average earnings from his former employer. A written application is submitted.
- Compensation for unused vacation, clauses 1–12 of Art. 127 Labor Code.
- A former employee who falls ill has the right to receive sick pay for the first 30 days. It is enough to bring the document to the enterprise. It can remain on the ballot for up to 4 months, until disability is registered in paragraph 2 of Art. 7 Civil Code of the Russian Federation. The amount of payments will be 60% of the average salary.
- A woman in labor can receive a one-time benefit upon presentation of a sick leave certificate.
- If the enterprise is cancelled, you should contact the FSS (Social Insurance Fund) for payment for temporary disability.
Dismissal due to a reduction in the number or staff of employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation)
Other categories of workers who enjoy a preferential right to remain at work with equal productivity and qualifications may be provided for by a collective agreement. Thus, often the preferential right to remain at work in the event of a reduction in the number or staff of employees is assigned in collective agreements to employees who have a long work history with a given employer.
In accordance with the procedure established by Article 374 of the Labor Code of the Russian Federation, the employment contract is also terminated with employees who were leading officials of the elected body of the primary trade union organization (that is, no longer possessing such powers at the time of the decision to reduce the number or staff of employees). In accordance with Article 376 of the Code, termination of an employment contract under paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation with the head of the elected body of the primary trade union organization and his deputies within 2 years after the end of their term of office is allowed only in compliance with the procedure established by Article 374 of the Labor Code of the Russian Federation (then is in agreement with the higher elected body).
Dismissal of Article 81 of the Labor Code of the Russian Federation
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 dismiss an employee are covered in Article 81 of the Labor Code of the Russian Federation, which is called
As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization. Based on the content of paragraph 10 of part one of Article 81 of the Code, heads of other structural divisions of the organization and their deputies, as well as the chief accountant of the organization cannot be dismissed on this basis.
What payments are due to an employee upon dismissal due to redundancy?
To receive the average monthly salary for the period of employment, two months after dismissal, the employee must present to the employer an identification document of the employee, a free-form application and a work book, which confirms the period of employment. The work record book confirms the fact that the employee is not employed.
Due to the fact that payments to an employee dismissed due to a reduction in headcount are made against severance pay, the employer may not agree to pay the average monthly salary for the period of employment for the third month (Part 1 of Article 178 of the Labor Code of the Russian Federation).
What payments does an employee expect when staffing is reduced?
- Severance pay - in the amount of average monthly earnings, Article 178 of the Labor Code of the Russian Federation;
- Compensation for unused vacation Article 127 of the Labor Code of the Russian Federation, in accordance with the Rules on regular and additional vacations approved by the People's Commissariat of Labor of the USSR on April 30, 1930 No. 169 and the Rostrud protocol dated June 19, 2014 No. 2;
- Wages for the period worked on the day of dismissal __________ indicate the components;
- Additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice period for dismissal, Article 180 of the Labor Code of the Russian Federation, from _____________________ to _________________________.
- All accrued but unpaid amounts for wages and other payments by the day of dismissal.
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.
Dismissal of employees - articles of the Labor Code of the Russian Federation on dismissal of employees
Without a prior agreement with the formal employer, such a procedure is not carried out. Mandatory work is expressly excluded if the parties have reached a documented agreement. By refusing to work the required period without such an agreement, the employee risks being left without the required compensation. Accordingly, working 2 weeks upon dismissal is considered mandatory by the current Labor Code.
The death of a staff member is one of the forms of implementation by the employer of his discretionary initiative. It is regulated by Art. 83rd Labor Code of the Russian Federation. In an order, which must be issued at the local level, the wording is written only in its exact form. All issues regarding compensation are resolved with the employee’s nominal relatives.
Payments upon dismissal under paragraph 2 of Article 77
If the violation was not the fault of the employee, then the employee is paid severance pay in the amount of the average monthly salary, but if the violation is the employee’s fault, severance pay is not paid. Upon termination of the employment contract due to the liquidation of the organization (clause 1, part 1, article 81 Labor Code of the Russian Federation) or a reduction in the number or staff of the organization’s employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of average monthly earnings. Note! When an employment contract with an employee engaged in seasonal work is terminated due to the liquidation of the organization, reduction in the number or staff of employees, severance pay is paid in the amount of two weeks’ average earnings (Art.
Dismissal under clause 1 of Article 77 Agreement of the parties is the mutual consent of the participants in the labor relationship to terminate it on pre-agreed conditions. Specific conditions are fixed on paper by drawing up and signing an agreement in two copies. This agreement establishes the date of dismissal, upon which the employer must issue documents to the dismissed person and provide him with a payment. In addition, it may determine a special procedure for dismissal, payment of compensation, provision of leave before dismissal and other conditions. The initiative can come from any of the two parties to the employment contract. The written agreement that the parties draw up upon the agreement on dismissal can be concluded at any time before the resigning person’s last working day.
15 Aug 2018 9082An 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 (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic 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;
7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments";
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) has become invalid. - Federal Law of June 30, 2006 N 90-FZ;
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
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.
Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On combating corruption."
The provisions of Article 81 of the Labor Code of the Russian Federation are used in the following articles:- Changes in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions
If an employee refuses to continue working part-time (shift) and (or) part-time work week, then the employment contract is terminated in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation. In this case, the employee is provided with appropriate guarantees and compensation.
- General grounds for termination of an employment contract
4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);
- Mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of an employment contract at the initiative of the employer
When making a decision to reduce the number or staff of employees of an organization, individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation, the employer is obliged to notify the elected body of the primary trade union organization in writing about this no later than two months in advance before the start of the relevant activities, and if the decision to reduce the number or staff of employees may lead to mass dismissal of workers - no later than three months before the start of the relevant activities. The criteria for mass layoffs are determined in industry and (or) territorial agreements.
- General procedure for registering termination of an employment contract
If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. The employer is also not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of employment relations upon dismissal of an employee on the basis provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this...
- Limitation of deductions from wages
upon dismissal of an employee before the end of the working year for which he has already received annual paid leave for unworked vacation days. Deductions for these days are not made if the employee is dismissed on the grounds provided for in paragraph 8 of part one of Article 77 or paragraphs 1, 2 or 4 of part one of Article 81, paragraphs 1, 2, 5, 6 and 7 of Article 83 of the Labor Code of the Russian Federation.
- Severance benefits
Upon termination of an employment contract due to the liquidation of an organization (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) or a reduction in the number or staff of the organization's employees (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation), the dismissed employee is paid severance pay in the amount of average monthly earnings, as well as for he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).
- Guarantees and compensation for employees in the event of liquidation of an organization, reduction of the number or staff of the organization's employees
When carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (vacant position) in accordance with part three of Article 81 of the Labor Code of the Russian Federation.
When a worker regularly and without good reason does not fulfill his official duties, he faces dismissal at the initiative of the employer in accordance with paragraph 5 of Art. 81 TK. What do you need to know about this article?
Main provisions
Article 81 of the Labor Code specifies a list of options when the boss has the right to take the initiative and carry out the procedure for dismissing an employee.
It contains 14 points, which are divided into two groups:
- grounds that apply to all employees;
- grounds that apply to individual positions.
There can be two types of grounds for removal from a position:
- related to the employee’s actions;
- not related to the employee's actions.
The dismissal of an employee due to guilty actions is prescribed in paragraphs. 5-6, 11. A guilty act in the legal sphere is a conscious and volitional act of a person that is contrary to the law or contract.
Paragraph 5 stipulates the possibility of dismissing an employee if he systematically fails to fulfill his official obligations without a good reason.
The employee’s responsibilities are specified in the employment contract and in the internal regulations of the enterprise. Among them the following can be noted:
- absence from duty during working hours;
- refusal to fulfill one's duties;
- refusal of medical examinations and TB (safety) knowledge tests required for a specific place of work.
Dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation occurs in the following cases:
- for offenses committed more than once;
- with previous disciplinary punishment.
Therefore, the absence of disciplinary punishment makes the application of this clause impossible.
Disciplinary action, as a rule, consists of a reprimand or reprimand. For certain categories of workers, this concept is expanded.
Paragraph 6 declares the possibility of dismissing a person in case of gross violations of official obligations, for example, the following:
- being present at work while drunk or under the influence of drugs;
- disclosure of corporate secrets;
- violation of safety regulations.
The grounds that entail the dismissal of an employee without his fault include:
- the worker’s inadequacy for the position received;
- closure of the company;
- staff reductions.
Fraudulent actions, for example, providing forged documents and false data when signing an employment contract are also grounds for dismissal, according to the Labor Code (clause 1).
Arbitrage practice
When considering the claim of a person who has been fired, the judge pays attention to whether there were disciplinary punishments.
In judicial practice, the defendant must provide the following evidence:
- The violation that the employee committed was real and can be considered grounds for dismissal.
- The employer complied with all deadlines regarding penalties.
In judicial practice, there are often claims regarding illegal dismissal for failure to fulfill official duties. The plaintiff has the right to challenge both the illegality of the decision to remove him and the illegality of all previous penalties. In the latter case, all disciplinary charges will be considered at a court hearing.
Important! If the verdict is positive, the employee may be reinstated. He also has the right to ask for compensation for moral damage caused by illegal punishments and loss of work.
How are penalties imposed?
Disciplinary sanctions received by the offender for the first violation are imposed as follows:
- The penalty period is one month from the moment the offense was discovered.
- The day the misconduct was discovered is the day on which the boss discovered the misconduct.
- Sick leave and vacations are not included in the monthly recovery period. But days off are included.
- Leave that interrupts a monthly period includes all types of leave (annual, for training, and others).
The Labor Code of the Russian Federation allows an employer to dismiss its employees on its own initiative, in accordance with Article 81.
Clause 5, which concerns dismissal for failure to fulfill labor obligations without a good reason, requires the preliminary imposition of a fine or other disciplinary punishment.
The company or organization must have evidence that the employee actually committed the offense described in the law.
Dismissal can be challenged in court if appropriate evidence is provided.