Violations of labor discipline. Violation of labor discipline under the Labor Code of the Russian Federation: consequences for the employee Issuing a warning to the employee

Labor relations are regulated, as is known, by the Labor Code. When applying for a job, the applicant and the employer enter into an agreement. The document specifies the basic working conditions of the employee. The contract also establishes the obligations and rights of the parties.

By concluding an agreement, the employee voluntarily undertakes to comply with the norms of labor legislation and the provisions of local documents. If they violate them, he faces disciplinary action. In the Labor Code of the Russian Federation contains a special rule establishing the grounds and general conditions for applying sanctions to the guilty person - Article 192. Let's consider its features.

General information

According to the above Article of the Labor Code of the Russian Federation, disciplinary action may be charged to an employee who has violated the provisions of the law or other regulatory documents. A violation can be expressed either in non-fulfillment or in improper performance by an employee of professional duties due to his fault.

Types of disciplinary sanctions under the Labor Code of the Russian Federation

The employer may choose one of the following sanctions:

• Comment.
• Rebuke.
• Termination of the contract (if there are grounds).

Federal laws, regulations on discipline, charters may provide for certain categories of employees and others not covered by Art. 192 Labor Code of the Russian Federation disciplinary action. Norm must be applied taking into account the provisions of Art. 81.

Features of the norm

According to Labor Code of the Russian Federation, to disciplinary sanctions applies to dismissal on the grounds established in Art. 81 (5, 6, 9, 10 clauses of part 1), 336 (clause 1), 348.11, as well as those provided for in clauses 7.1, 8, 7 of part one 81 of the norm, if the employee’s guilty actions give rise to a loss of confidence in him or he has committed an immoral act in the place and within the framework of his work activity.

The use of sanctions that are not established in federal legislation, regulations and charters is not permitted.

According to Art. 192 Labor Code of the Russian Federation, disciplinary sanctions should be charged only after assessing the severity of the offense and analyzing the circumstances in which the perpetrator committed it.

What is a disciplinary offense?

It should be understood as a culpable, unlawful failure or improper performance by an employee of the duties assigned to him in accordance with the contract, law and other regulations (including local ones) acts.

A misdemeanor can be expressed in violation of regulations, company rules, job descriptions, employer orders, technical rules, and so on.

Guilt

Failure to perform/improper performance of duties will be considered guilty if the citizen acted negligently or intentionally.

Imposition of disciplinary sanctions under the Labor Code of the Russian Federation is not allowed if the corresponding violations were committed due to circumstances beyond the control of the person. For example, an employee did not fulfill his duties due to the lack of necessary materials for work, due to loss of ability to work, etc.

Illegality

The illegality of an employee’s behavior (inaction/action) is expressed in its non-compliance with the requirements of the law and other industry regulations.

On this issue, an explanation was given by the Plenum of the Supreme Court in Resolution No. 2 of 2004. The Court indicated that an employee’s refusal to perform a production task when a threat to his life/health arises in connection with the elimination of the corresponding danger cannot be regarded as a misdemeanor.

The behavior of a person who refuses to perform hard work or in dangerous/harmful conditions, if they are not provided for in the contract, will also be recognized as lawful. Exceptions can only be established by federal law.

Nuances

Due to the fact that the Labor Code does not contain provisions prohibiting the exercise of the right to such a refusal, in cases where the performance of the relevant tasks is conditioned by a transfer on the grounds set out in Article 72.2, the citizen’s refusal to transfer should be considered justified.

Failure to comply with the employer’s order to go to work before the end of the vacation cannot be regarded as a violation of discipline. The law does not provide for the right to call an employee early without his consent. The employee’s refusal to comply with such an order (regardless of the reason) should be considered lawful.

Types of discipline violations

As a misdemeanor for which one may be charged disciplinary action under the Labor Code of the Russian Federation, only such culpable unlawful behavior can occur that is directly related to the performance of professional duties. A person’s refusal to carry out a public order or failure to comply with the rules of behavior in a public place cannot be considered a violation.

Violations of discipline at the enterprise are considered:

• Absence of a citizen without good reason from the workplace or work in general.
• Evasion/refusal to undergo a medical examination, special training, certification, exams on health and safety, equipment operating rules, if these procedures are a prerequisite for admission to production activities.
• Refusal, without good reason, to conclude an agreement on financial liability, if service with valuables is the main job responsibility of the person and was agreed upon when he was hired at the enterprise, and the specified agreement can be concluded with the citizen, in accordance with the provisions of the law.

Art. 81 Labor Code of the Russian Federation

Disciplinary action may be used in connection with:

• Repeated failure by a citizen to perform his labor functions without a good reason in the presence of a penalty.
• One-time gross failure (violation) of duties.
• Acceptance by the director of the enterprise (structural unit), his deputy, ch. an accountant of an unjustified decision, the execution of which resulted in a violation of the safety of valuables, their illegal use or other property damage.
• Gross violation of professional duties by the manager or his deputy, committed once.

In addition to those installed in Labor Code of the Russian Federation for disciplinary sanctions sanctions are provided for in sectoral federal laws. For example, Federal Law No. 90 allows for the dismissal of a teacher due to a gross violation of the charter of an educational institution, repeated within a year.

Exceptions

Given in Art. 192 the list is considered exhaustive. The application of any other penalties not provided for in the article is not permitted. For example, it would be unlawful to transfer an employee to a lower-paid position or collect a fine as a sanction for violations.

Exceptions are allowed in cases expressly provided for by law. For example, Federal Law No. 79 provides that a civil servant, in addition to the penalties established by Article 192 of the Labor Code, may be given a warning about incomplete compliance with the position held.

Rules for applying sanctions

They are fixed Art. 193 Labor Code of the Russian Federation. Disciplinary action may be charged only after receiving an explanation from the employee who committed the violation. They are provided in writing. The employee is given 2 days to draw up explanations. If at the end of this period no explanations are provided, the employer must draw up a corresponding report.

It must be said that failure to provide an explanation is not considered an obstacle to the application of sanctions to those responsible.

Deadlines

They are also mentioned in norm 193 of the Labor Code of the Russian Federation. The time limits for disciplinary action are set as follows:

• The sanction is applied no later than 1 month. from the date of discovery of the violation. This period does not include the days the employee is on vacation, temporary disability, as well as the time allotted for taking into account the conclusions of the trade union.
• The sanction cannot be applied after 6 months. from the date of the violation, and based on the results of the audit, audit inspection, inspection of financial and economic transactions - after two years. These time limits do not include the time of criminal proceedings.

For each violation, the perpetrator may be subject to only one sanction. Otherwise, his constitutional rights will be infringed.

New edition of Art. 81 Labor Code of the Russian Federation

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 (shift) );

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) making 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;

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."

Commentary on Article 81 of the Labor Code of the Russian Federation

The procedure for terminating an employment contract at the initiative of the employer is determined by Article 81 of the Labor Code of the Russian Federation. The fundamental difference between this article and the one discussed above is that in all the cases listed below, early termination of an employment contract is carried out at the initiative of the employer, although the motives for the latter’s actions can be very different.

Meanwhile, as practice shows, the basis for early termination of most employment contracts is precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.

We emphasize that the dismissal of 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 is not allowed. The main situations related to the dismissal of an employee at the initiative of the employer are discussed below.

with the liquidation of the enterprise (termination of activities

employer - an individual)

Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by an employer - an individual entrepreneur) (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is carried out in relation to all employees.

This, in principle, distinguishes the named basis from others provided for in Article 81 of the Labor Code of the Russian Federation. Let us clarify that in the general case, the liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without the transfer of powers (the rights and obligations of the enterprise) in the order of succession to any other persons, undertaken in the manner prescribed by law , by decision of the body authorized to do so in accordance with the constituent documents, or by court decision.

The liquidation of an enterprise is considered completed, and the enterprise ceases to exist, from the moment the state registration authority makes a corresponding entry in the Unified State Register of Legal Entities.

It must be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for valid reasons (due to illness, vacation, etc.), and on the other hand, provides for the provision of appropriate guarantees and compensation to those dismissed.

The basis for initiating the procedure for dismissing employees on the basis provided for in paragraph 1 of part one of Article 81 of the Labor Code of Russia is the decision to liquidate the enterprise, adopted in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (a body of the enterprise with the appropriate powers) or by the court.

Employees must be warned by the employer about the upcoming liquidation in strict accordance with the requirements. Such a warning should:

be personal in nature;

be brought to the attention of each employee in writing and against signature no later than 2 months before the expected date of dismissal.

At the same time, with the written consent of the employee, his dismissal before the expiration of the specified period is allowed with the simultaneous payment of 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. However, employees should be aware that they have the right to contact their employer with relevant statements.

Obviously, the employer should inform employees about this in advance.

Thus, the employer has the right to dismiss earlier other employees who have stated in writing their consent to the no-notice dismissal procedure. However, it should be borne in mind that before the relevant order is issued, an employee who has previously agreed to a no-notice dismissal procedure has the right to withdraw his application by notifying the employer in writing.

Employees who have not submitted the appropriate written statements must be sent warnings by the employer about their upcoming dismissal due to the liquidation of the enterprise. If the employee refuses to sign (refuses to receive notification), a report is drawn up to this effect.

It is necessary to clarify that for certain categories of employees, the notice period for upcoming dismissal due to the liquidation of the enterprise may be reduced. For example, in accordance with, such a warning must be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and for seasonal workers, this period, according to, must be at least seven days. The dismissal of an employee in connection with the liquidation of an enterprise, as in the previously considered cases, is formalized by an order (instruction) on the termination of the employment contract, the contents of which are announced to the dismissed person against signature. Based on the order (instruction), other necessary documents are drawn up.

Upon termination of employment contracts in connection with the liquidation of the enterprise for dismissed employees. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

At the same time, employees who have entered into an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract previously concluded with this employee. For seasonal workers, such benefits are paid in the amount of two weeks' average earnings.

To summarize the paragraph, we note that upon termination of the activities of a branch, representative office (another separate structural unit) of an enterprise located in another locality, the manager organizes the termination of employment contracts with employees of the relevant structural units according to the rules provided for cases of liquidation of the enterprise. Relevant orders are also issued regarding the dismissal of these employees.

Early termination of an employment contract due to

with a reduction in the number of employees of the enterprise

(individual entrepreneur)

Let us next turn to the consideration of the procedure for early termination of an employment contract in connection with a reduction in the number (staff) of employees of an enterprise (individual entrepreneur) (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal procedure is initiated by the employer in relation to employees who are “subject to” reduction.

Let us clarify that the dismissal of an employee due to downsizing implies a reduction in the number of units in the corresponding specialty (position, profession), for example, due to a decrease in the volume of work performed and the wage fund. When reducing numbers, first the vacant units in a given specialty are reduced, and then, if necessary, those occupied by “living” workers. In turn, the dismissal of an employee due to staff reduction implies the liquidation of the position he occupied. It is significant that the total number of employees in this case may not decrease, since new units may be introduced into the staffing table at the same time.

In general, the right to determine the number and staff is given to the employer. For this purpose, from time to time he may carry out certain organizational measures aimed at changing (including reducing) the number or staff of employees.

Depending on the reasons and goals, the reduction in the number or staff of an enterprise can be more or less significant. The decision to reduce the number or staff (to carry out relevant measures) comes into force from the moment the head of the enterprise issues an order to put into effect a new staffing table (with the obligatory indication of the date of its implementation).

However, before issuing the relevant order, the employer must organize work aimed at ensuring the legality of changes caused by a reduction in the number or staff of the enterprise.

It must be emphasized that the dismissal of an employee due to a reduction in numbers or staff is considered to be properly justified if the enterprise, for one reason or another, actually needs to reduce a particular number of units for the corresponding position (specialty, profession). At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the grounds in question, the employee must be offered in writing another job available to the employer, which the employee can perform taking into account his state of health and qualifications.

Let us clarify that the circumstances that make it, in principle, possible, from a legal point of view, to dismiss an employee due to a reduction in the number or staff of an enterprise include the following:

1. The employee does not have preferential rights to retain his job (position) in the event of a layoff.

2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the latter’s written consent to the transfer).

3. The employee’s refusal to give written consent to a transfer to another job offered to him by the employer (taking into account the state of health and qualifications of the employee).

4. Warning the employee about the upcoming dismissal in the manner prescribed by law.

If the employee is a member of the trade union organization of the enterprise, then the decision to dismiss the employee on the basis provided for in paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer taking into account the reasoned opinion of the relevant trade union body in accordance with (see below). Such an opinion can be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee.

When making a decision to dismiss an employee, the employer must, in addition, be guided by the law that establishes preferential rights in relation to certain categories of employees to remain at work in the event of a reduction in numbers or staff.

As follows from this article, when reducing the number or staff, the priority right to remain at work is given to “workers with higher labor productivity and qualifications.” If there are documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to reduction in number or staff, the following have a priority right to continue working:

family workers - if their families have two or more disabled family members who are fully supported by the employee or receive assistance from him, which is a permanent and main source of livelihood for them;

family workers in whose family there are no other workers with independent earnings;

employees who received a work injury (occupational disease) while working for this employer;

workers - disabled people of the Great Patriotic War (combat actions to defend the Fatherland);

employees who improve their qualifications in the area determined by the employer, without interruption from work;

employees who are spouses of military personnel (in government organizations, military units);

employees from among citizens previously discharged from military service, as well as members of their families at work, where they entered for the first time after discharge from military service;

workers - single mothers of military personnel undergoing military service;

workers from among persons who received or suffered radiation sickness and other diseases associated with radiation exposure (exposed to radiation exposure).

We also note that the collective agreement (agreement) may determine other categories of workers who, when reducing numbers or staff, have a preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The employer's further course of action involves:

1. Determination (taking into account the above) of workers to be transferred to vacant positions (with their consent and if the enterprise has vacancies corresponding to their health status and skill level).

2. Bringing to the attention of these employees lists of vacant positions (personally, in writing, against signature and taking into account the date of the expected dismissal of an employee in case of disagreement with the relocation).

3. Consideration of written statements from employees regarding consent (disagreement) with transfer to other positions.

4. Issuing orders (instructions) on the transfer of employees who have expressed their consent to other positions, as well as orders (instructions) on the dismissal of those employees who, for one reason or another, cannot be transferred to other positions that are not subject to reduction.

The new owner may (but is not obligated) to offer employees subject to dismissal on the grounds in question another job available at the enterprise. Whether or not to agree with this proposal is up to the employee to decide, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction) of dismissal, other necessary documents are drawn up.

Let us note in conclusion that the employee, on his own initiative, can apply to the new owner of the property with a request for early termination of the employment contract. In this case, with the consent of the employer, the employment contract with the employee is also subject to early termination on the grounds provided for.

The same right, however, can be used by other employees of the enterprise, and not just those listed in paragraph 4 of the first part of Art. 81 of the Labor Code of Russia. However, we again emphasize that the latter situation is fundamentally different from that described within the framework of this paragraph, since the initiative for early termination of an employment contract on the basis provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation belongs to the employee, not the employer.

Early termination of an employment contract due to

with repeated failure by the employee to comply without

valid reasons for work duties

Now let’s dwell on the early termination of an employment contract in connection with the employee’s repeated failure to fulfill labor duties without good reason (clause 5 of part one of Article 81 of the Labor Code of the Russian Federation), which - we especially emphasize this - is allowed only if the employee has a disciplinary sanction . In practice, the above means that an employee who is first noticed for failing to fulfill his job duties without good reason cannot be immediately dismissed by the employer, except in cases where such failure is associated with a gross violation of his job duties by the employee.

It goes without saying that the relevant circumstances significant for ensuring the legality of the early termination of an employment contract on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation must be documented. The following documents may be considered as relevant documents:

a properly executed report on a previous case of failure by an employee to fulfill job duties without valid reasons (preferably with a note indicating that the employee has familiarized himself with the contents of this document);

a properly executed order (instruction) on disciplinary punishment of an employee with a note indicating that the employee is familiar with its contents;

documents confirming that work duties were not fulfilled by the employee in the absence of valid reasons;

other documents directly related to the circumstances under consideration (confirming that these circumstances occurred).

It is also necessary to recall that, in accordance with the dismissal of an employee for the prescribed reasons, in turn, is also a disciplinary sanction. The general procedure for applying disciplinary sanctions has been determined.

When dismissing an employee who is a member of the trade union organization of an enterprise on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction), on the basis of which other necessary documents are drawn up.

Early termination of an employment contract due to

with a single gross violation by an employee

labor responsibilities

It seems appropriate to devote the next paragraph of the reference book to consideration of the procedure for early termination of an employment contract in connection with a one-time gross violation of labor duties by an employee (clause 6 of part one of Article 81 of the Labor Code of the Russian Federation). Let us note that this paragraph provides several grounds for the dismissal of an employee guilty of committing a gross violation of labor duties, namely:

Truancy, i.e. absence of an employee from the workplace without good reason during 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 (shift) (subparagraph "a" " point 6);

the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6);

disclosure by an employee of a secret protected by law (including state, commercial, official and other) that became known to him in connection with the performance of his job duties, including disclosure of personal data of another employee (subparagraph “c” of paragraph 6);

theft (including small) of someone else's property by an employee at the place of work, its waste or intentional destruction (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 (subparagraph "d " point 6);

violation by an employee of labor protection requirements established by the commission (authorized) for labor protection, if the violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of their occurrence (subparagraph "d" of paragraph 6).

The employer has the right to initiate a procedure for early termination of an employment contract in relation to a particular employee on the basis of documents proving the latter’s guilt in committing actions (the occurrence of circumstances) and, thus, making it possible to dismiss the culprit on the basis provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation . Such documents may include, for example, the following:

an act confirming the fact of the employee’s absence from the workplace without good reason during 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;

a medical report on the results of an examination of an employee who appeared at work in a state of alcoholic (drug or other toxic) intoxication;

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of disclosure by an employee of a legally protected secret (including state, commercial, official and other) that became known to him in connection with the performance of his job duties;

a court verdict (a decision of a body authorized to apply administrative penalties), which has entered into legal force and confirms the fact that an employee at the place of work committed theft (including small) of someone else’s property, its waste or intentional destruction (damage);

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of violation by the employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.

All listed documents must be properly completed. It is also necessary to draw the attention of dear readers to the fact that, as in the case discussed in the previous paragraph, dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when carrying out the procedure In case of early termination of an employment contract, the employer is obliged to adhere to the procedure for applying disciplinary sanctions defined by Article 193 of the Labor Code of the Russian Federation.

So, despite the fact that subparagraph “a” of paragraph 6 clearly defines what should be considered absenteeism, when making a final decision to dismiss an employee on the appropriate grounds, the employer should first pay attention to some other circumstances. For example, suspension of work due to a delay in payment of wages for more than 15 days cannot be classified as absenteeism, provided that the employee informed the employer in writing of his intention in advance (see in this regard). An employee has the right to refuse to perform work (labor function) that is not stipulated by the employment contract concluded with him, and, therefore, may, in this regard, be absent from the workplace on legal grounds (see in this regard).

On the other hand, the employer has the right to consider as absenteeism the employee’s abandonment of work (and, accordingly, the workplace), undertaken by the latter without written warning to the employer of the intention to terminate the employment contract on his own initiative at least two weeks in advance.

The fact that an employee appears at work in a state of alcoholic (drug or other toxic) intoxication (subparagraph “b” of paragraph 6) can be confirmed not only by a medical report, but also by a properly executed document. , i.e. do not allow him to enter the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).

In the event that the employee has not been suspended from work, responsibility for the possible consequences of his performance of work duties while intoxicated falls on the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, a subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to continue to deny the employee access to the workplace to perform the work assigned to him in accordance with the employment contract (labor function). ).

Dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph “c” of paragraph 6) is permitted if the following circumstances occur:

1. An employment contract (or a corresponding agreement to it, or an additional agreement in relation to the employment contract, for example, provided for by the Instruction on the procedure for accessing officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation of October 28, 1995 N 1050) contains a condition on the inadmissibility of disclosure by an employee of information constituting a secret protected by law.

2. The relevant information was indeed entrusted to the employee for the purpose of proper performance of the work assigned to him (labor function), while the employee was aware that the specified information constituted a secret protected by law.

3. The fact that the employee disclosed relevant information, for example, personal data of another employee, is documented.

The most indisputable from a legal point of view (among the grounds provided for in the subparagraphs of paragraph 6) seems to be the early termination of an employment contract with an employee found guilty of committing theft (including small) of someone else’s property at the place of work, its waste or intentional destruction (damage) established a court verdict or a decision of a judge, body or official authorized to apply administrative penalties that has entered into legal force (subparagraph “d” of paragraph 6). In this case, the employer is guided by documents issued in accordance with the established procedure by authorized bodies.

It must be emphasized that in this case, the Labor Code makes no distinction as to whether the stolen (damaged, destroyed or wasted) property belonged to the employer or to another person (for example, another employee of the enterprise). The main thing is that the corresponding action was committed by the offender at the place of work (which, of course, should be understood not as a workplace, but as an enterprise where the employee works).

It is also necessary to draw the attention of dear readers to the legal subtleties regarding the choice of grounds for dismissing an employee. A person guilty of committing illegal actions in relation to someone else's property at the place of work is subject to dismissal on the grounds provided for in subparagraph "d" of paragraph 6, only if the court verdict that has entered into legal force indicates that the employee has been sentenced to punishment that does not exclude the possibility of continuing an employee of the work assigned to him in accordance with the employment contract. This circumstance must be taken into account when issuing a dismissal order and, in particular, when making appropriate entries in the work book.

And finally, on the early termination of the employment contract on the basis provided for in subparagraph "d" of paragraph 6. Dismissal on the specified basis of an employee who has violated labor protection requirements, which had serious consequences or knowingly created a threat of such consequences, is permitted if:

1. The employee was in accordance with the established procedure.

2. The employer provided the employee with labor safety and conditions that meet the requirements of occupational safety and health.

3. The employee’s violation of these requirements actually entailed serious consequences or created a real threat to their occurrence.

4. The circumstances listed above are documented: a properly executed report on an industrial accident, an expert opinion issued by an authorized body, a resolution of a state labor protection inspector, etc.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with the commission of guilty actions by the employee, directly

servicing monetary or commodity values

In accordance with paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract early in connection with the commission of guilty actions by an employee directly servicing monetary or commodity assets, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. In general, dismissal of an employee on the specified grounds is permitted provided that:

the employee, in accordance with the employment contract concluded with him, was entrusted with the performance of work (labor function) involving the direct servicing of monetary (commodity) assets, and he actually performed the corresponding work, which is documented;

the fact that the employee committed guilty actions is appropriately recorded in the documents;

the commission of guilty actions gives the employer grounds for loss of confidence in the employee.

We emphasize again that documents used as evidence of the employee’s guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving grounds for loss of confidence in relation to a particular employee (taking into account the above) is actually more extensive than this may be appear to respected readers at first glance. Thus, law enforcement practice in recent years indicates that employers may take into account the following circumstances as such:

circumstances that in themselves indicate the illegal nature of the employee’s actions, namely: receiving payment for goods (services) sold without the appropriate documents, underfilling, measuring, weighing, shortchanging, violating the rules for the sale of alcoholic beverages and cigarettes, violating the rules for issuing narcotic drugs and etc.;

circumstances indicating the employee’s negligent attitude towards his job duties, which, in turn, gives the employee grounds for loss of trust, including: receiving and issuing sums of money without proper registration, storing keys to premises with material (monetary) valuables in improper location, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in poor condition, making their theft (loss) possible, etc.;

circumstances indicating that the employee uses the property entrusted to him for direct maintenance for personal purposes.

It should also be emphasized that, in accordance with the provision of the Labor Code under consideration, no distinction is made regarding whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. - grounds for early termination the employment contract lies in the very fact of committing guilty actions by one or another employee and its corresponding (documentary) confirmation. It also does not matter whether an agreement on full financial liability was previously concluded with the guilty employee or not. Finally, it does not matter whether the work involving the direct servicing of material (monetary) assets by the guilty employee was the main one or whether the latter performed it part-time.

On the other hand, the dismissal of certain categories of workers on the basis provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation cannot be implemented due to the fact that they cannot be entrusted (entrusted) with the performance of the relevant types of work.

To summarize, we note that in order to make a decision to dismiss a guilty employee due to loss of trust in him by the employer, as a rule, the documents listed above are sufficient, i.e. such a decision can be made in the absence of a court verdict that has entered into legal force, as provided for in subparagraph “d” of paragraph 6 (see earlier). However, in the event that the fact that an employee committed guilty actions (theft, bribery, other mercenary offenses) is established in the manner prescribed by law, the culprit may be dismissed due to loss of trust and if the commission of such actions is not related to the performance of service work material (monetary) values.

If guilty actions giving grounds for loss of confidence 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 job duties, then dismissal on the grounds provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is allowed in for one year, calculated from the date when the employer became aware of the employee’s misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).

Early termination of an employment contract due to

committed by an employee performing educational

functions, immoral offense

Early termination of an employment contract in connection with the commission of an immoral offense by an employee performing educational functions (clause 8 of part one of Article 81 of the Labor Code of the Russian Federation) is carried out if such an act is incompatible with the continuation of this work. It is noteworthy that this provision of the Labor Code does not specify under what circumstances - related or not related to the performance of the assigned work (labor function) - an offense was committed by one or another employee.

At the same time, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work (labor function) not related to the education of wards, cannot be dismissed on this basis. Accordingly, early termination of employment contracts with employees from the administration of establishments (institutions), as well as with technical (service) personnel in connection with their commission of immoral offenses is not allowed.

The fact that an employee has committed an immoral offense must be documented, for example, by materials from an internal investigation. Conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the employee committing an immoral offense with his continuation of his previous work.

This takes into account the circumstances of the commission of the immoral offense, the degree of its severity, as well as whether the employee has previously committed similar offenses. As a rule, when an employer makes a decision on dismissal, it also takes into account how well the employee has proven himself in the eyes of his colleagues and wards.

If an immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then dismissal on the basis provided for in paragraph 8 of part one of Art. 81 of the Labor Code, is allowed within one year, calculated from the date when the employer became aware of the employee’s misconduct.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with the employee making an unreasonable decision, which entailed

entails violation of the safety of property, unlawful

its use or other damage to the property of the enterprise

Let us next turn to the consideration of the procedure for early termination of an employment contract in connection with the adoption by the employee - the head of the enterprise (branch, representative office), his deputies and the chief accountant - of an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the enterprise (clause 9 part one of Article 81 of the Labor Code of the Russian Federation). As the name suggests, dismissal on this basis applies only to strictly defined categories of employees of the enterprise. To ensure the legality of dismissal on this basis, the following is essential:

1. The employee, in accordance with the employment contract, is vested with the authority to make decisions regarding the disposal of the property of the enterprise (establishing the procedure for disposing of this property) and actually made such decisions in the process of daily activities.

2. A decision made by an employee and considered by the employer as a circumstance making it possible to dismiss an employee on the grounds provided for in paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable.

3. The consequence of the employee making an unfounded decision was a violation of the safety of the enterprise’s property, its unlawful use or other damage caused to the enterprise’s property.

4. The circumstances listed above are documented.

Let us add that there must be a clearly visible cause-and-effect relationship between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests). In other words, the employee must be responsible for the decision made by him personally.

As law enforcement practice shows, it is most difficult to establish such a connection in relation to decisions that are not recorded in any management documents, i.e. announced orally. In such cases, the circumstances of the decision-making and its implementation require especially careful study.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with a single gross violation by an employee-manager

enterprise (branch, representative office) (his deputy)

their work responsibilities

Let's move on to consider the procedure for early termination of an employment contract in connection with a one-time gross violation by an employee - the head of an enterprise (branch, representative office) (his deputy) of his labor duties (clause 10 of part one of Article 81 of the Labor Code of the Russian Federation). As we can see, the application of this basis for dismissal is even more “selective” in nature compared to that discussed in the previous paragraph, since it does not apply to employees holding the position of chief accountant.

The content of the paragraph in question does not define what exactly should be considered a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list, for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice. Let us clarify that the number of gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies and giving the employer grounds for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation is currently accepted include, in particular, the following: violation of labor protection rules, violation of the rules of accounting for values, abuse of official authority or use of the latter for personal (selfish) purposes, etc.

Dismissal on the grounds provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation will certainly be legal if:

1. An employment contract concluded with an employee contains a condition on the latter’s obligation to perform certain actions in accordance with the powers granted (or, on the contrary, a condition ordering the employee to refrain from performing certain actions).

2. The employee’s commission of the relevant violation actually took place, and this fact is documented in the proper form.

Dismissal on this basis will be legal even if the employment contract concluded with the employee specifically states that the commission of such and such actions (abstaining from performing them) is qualified as a gross violation and entails the dismissal of the violator for the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion of a corresponding condition in an employment contract should not contradict other provisions of the Labor Code, which provide for the possibility of early termination of an employment contract with an employee - the head of an enterprise (branch, representative office) (his deputy) on other grounds.

It is necessary to draw the attention of dear readers to the fact that the ground we are considering gives the employer the right, on his own initiative, to early terminate an employment contract with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer himself decides whether to dismiss the violator or wait until another suitable case presents itself.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with the employee’s presentation to the employer

false documents when concluding an employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission by the employee of false documents to the employer when concluding an employment contract (clause 11 of part one of Article 81 of the Labor Code of the Russian Federation). It should immediately be clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract, and, consequently, the employer’s attempt to accuse the employee of submitting false documents, which the employer did not have the right to insist on, will look untenable from a legal point of view.

Thus, if the employee presented the employer with a forged (relatively speaking, someone else’s or counterfeit) work book or fake passport and this fact is properly documented, for example, by an act of verification of a document that raises doubts, then the employer has the right to terminate the employment contract early with the specified employee on the basis provided for in paragraph 11 of part one of Article 81 of the Labor Code of the Russian Federation.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract on grounds

stipulated by the employment contract with

employee-manager (members of the collegial

executive body) of the enterprise

It seems appropriate to devote the next paragraph to consideration of the procedure for early termination of an employment contract on the grounds provided for in the employment contract with the employee - manager (members of the collegial executive body) of the enterprise (clause 13 of part one of Article 81 of the Labor Code of the Russian Federation). Thus, the peculiarity of this clause lies, firstly, in the fact that it can only be applied for the dismissal of employees from among the managers (members of the collegial executive body) of the enterprise and, secondly, only on the grounds provided for in employment contracts concluded with by these employees in addition to the general grounds for dismissal.

Please note that additional grounds for dismissal are established upon concluding an employment contract by agreement between the employee-manager (member of the collegial executive body) and the employer. In this case, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of employees.

The occurrence of circumstances that make it legal for the early termination of an employment contract with an employee - manager (member of the collegial executive body) of the enterprise must be documented. At the same time, the forms and methods of their documentary confirmation may be different (see earlier).

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract in other cases,

established by law

Let us briefly consider the procedure for early termination of an employment contract in other cases established by law (clause 14 of part one of Article 81 of the Labor Code of the Russian Federation). Previously, we have already touched upon certain issues related to the dismissal of enterprise employees on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

In this case, however, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on his own initiative, terminating his employment contract before the expiration of the latter. In other words, these are situations that allow early dismissal of an employee at the initiative of the employer and are directly provided for by law, with the exception of those discussed earlier.

Thus, Article 33 of the Federal Law of the Russian Federation of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” gives the employer the right to early termination of an employment contract with an employee - a state civil servant on grounds. The corresponding grounds may be provided for by other laws of the Russian Federation in relation to other categories of workers.

Information about additional grounds for dismissing an employee is recorded in the employment contract. The fact of the occurrence (identification) of circumstances allowing the dismissal of an employee for one of the additional grounds must be documented.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), another

Another comment on Art. 81 Labor Code of the Russian Federation

1. Unlike the employee, the employer is significantly limited by law in its ability to terminate the employment contract with the employee. The legislator seeks to ensure, firstly, the stability of the labor relationship, and secondly, the protection of the interests of the employee.

Termination of an employment contract at the initiative of the employer, as a general rule, is possible only on grounds, an exhaustive list of which is established by law, and only if the established procedure for dismissal is observed. An employee dismissed without legal grounds or in violation of the dismissal procedure is subject to reinstatement to his previous job.

The legislator formulates three groups of reasons as grounds for dismissing an employee at the initiative of the employer:

a) guilty actions of the employee;

b) reasons related to the employee’s personality, but not the result of his guilty actions;

c) circumstances beyond the control of the employee.

When formulating the grounds for termination of an employment contract at the initiative of the employer, the legislator takes into account both the personality of the employee and the characteristics of work determined by the labor function. In this regard, there are general and special grounds for termination of an employment contract at the initiative of the employer. The former can be applied upon the dismissal of any employee, the latter - only for employees of certain categories (for example, heads of organizations, persons whose work activity is related to the servicing of monetary or commodity values). The general grounds for termination of an employment contract at the initiative of the employer are formulated in Art. 81 Labor Code, additional (special) - partially in Art. 81, partially - in articles of the Code regulating the legal status of certain categories of workers and employers, as well as in other federal laws.

As a general rule, the presence of grounds for dismissal gives the employer the right, but does not oblige him, to terminate the employment contract. Therefore, when circumstances arise that give rise to this right of the employer, the latter may either not change the content of the employment contract with the employee at all, limiting himself to applying measures of an organizational and legal nature to him, or, if this circumstance excludes the possibility of the employee retaining his position or work stipulated by the employment contract , - transfer the employee with his consent to another job. In some cases, the employer has the right to dismiss the employee if transfer to another job is impossible or the employee refuses the transfer (see paragraph 17 of the commentary to this article).

2. Clause 1 of Art. 81 of the Labor Code of the Russian Federation provides for such grounds for dismissal of an employee as liquidation of an organization or termination of activities by an individual entrepreneur.

Liquidation of an organization (legal entity) is carried out on the grounds and in the manner determined by civil law. Liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons (Clause 1 of Article 61 of the Civil Code of the Russian Federation).

As follows from paragraph 2 of Art. 61 of the Civil Code, a legal entity may be liquidated by decision of both the entity itself (its founders (participants) or the competent authority) and the court, including if it is declared bankrupt. Labor legislation interprets the dismissal of employees arising from the fact of liquidation of a legal entity as the termination of an employment contract with them solely on the initiative of the employer. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities (clause 8 of Article 63 of the Civil Code of the Russian Federation).

As for the termination of the activities of an employer - an individual, in this case we are talking about the termination of the activities of this person as an individual entrepreneur - in the sense as the concept of the latter is interpreted by the Code (see therein). The death of an employer - an individual is an independent basis for termination of an employment contract (see herein).

Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code of the Russian Federation are special subjects of law acting to achieve goals determined by law, including the production of profit, and accordingly are obliged in one form or another to carry out state registration (licensing) of their activities. Thus, the entrepreneurial activity of a citizen as an individual entrepreneur or head of a farm is subject to state registration (Article 23 of the Civil Code of the Russian Federation). A special procedure is provided for by law for acquiring the status of a lawyer (see Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation”). Notaries operate on the basis of a license issued in accordance with the established procedure (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries). Accordingly, termination (or suspension) of the activities of this type of employer can serve as an independent basis for terminating an employment contract with employees under clause 1 of Art. 81 Labor Code of the Russian Federation.

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under clause 1 of Art. 81 of the Labor Code, in particular, when the activities of an employer - an individual are terminated on the basis of his own decision, as a result of his being declared insolvent (bankrupt) by a court decision (clause 1 of Article 25 of the Civil Code of the Russian Federation), due to the expiration of the certificate of state registration, refusal to renew a license for certain types of activities (part 3, paragraph 28 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2).

3. Reduction in the number or staff of employees of an organization or individual entrepreneur as a basis for termination of an employment contract is provided for in clause 2 of Art. 81 Labor Code of the Russian Federation.

The number of employees is determined according to the technological processes used by the employer and the maintenance needs of its activities.

The staff consists of a combination of management and administrative positions at various levels, as well as specialists. The staff is determined, as a rule, by the manager by issuing a staffing table.

When the owner of an organization's property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership (Part 4 of Article 75 of the Labor Code of the Russian Federation).

When dismissal due to staff reduction, it is necessary to take into account the preferential right of certain categories of employees to remain at work (see Article 179 of the Labor Code of the Russian Federation and the commentary thereto). At the same time, since by virtue of Part 4 of Art. 81 of the Labor Code of the Russian Federation, 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 these structural units is carried out according to the rules provided for cases of liquidation of an organization, the rule of Art. 179 of the Labor Code of the Russian Federation does not apply in this case.

It should be taken into account that if clause 2 of Art. 81 of the Labor Code of the Russian Federation in the previously valid version spoke about reducing the number or staff of an organization’s employees, i.e. employer - a legal entity, then currently the effect of this paragraph also applies to the employer - individual entrepreneur (in the sense in which Article 20 of the Labor Code of the Russian Federation interprets it).

4. By virtue of clause 3 of Art. 81 of the Labor Code of the Russian Federation, the inconsistency of an employee with the position held or the work performed may be a consequence of insufficient qualifications. On the dismissal of an employee due to refusal to transfer to another job due to a changed state of health, see Art. 73, paragraph 8 of Art. 77 and commentary thereto.

The employee's insufficient qualification level must be confirmed by certification results.

By the time the Labor Code of the Russian Federation came into force, certification as a form of checking and assessing the level of qualifications of personnel was used in some areas of professional activity (primarily in the field of state and municipal services) and in relation to certain categories of workers (mainly in relation to specialist employees). The procedure for conducting certification in these cases is determined centrally (see, for example, Decree of the President of the Russian Federation of February 1, 2005 No. 110 “On conducting certification of state civil servants of the Russian Federation”). At the same time, the possibility of introducing the institution of certification of employees in certain organizations cannot be ruled out (part 1, paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

In any case, the procedure for conducting certification requires compliance with the following rules: a) the presence of a regulatory framework (regulations on certification); b) implementation of the certification procedure by a commission created in the manner established by the relevant regulations; c) the universal nature of certification (not individual, but all (with exceptions determined by regulation) employees of a certain category are subject to certification); d) frequency of certification (employees are subject to certification regularly, as a rule, after a certain period after the previous certification established in the regulatory order).

The conclusion of the certification commission that the employee’s level of actual qualifications does not correspond to the position held or the work performed gives the employer the right to terminate the employment contract with this employee.

Since, by virtue of the Labor Code of the Russian Federation, termination of an employment contract on the grounds that an employee does not have the appropriate level of qualifications is permitted provided that the lack of qualifications is confirmed by the results of certification, the dismissal of any employee due to inconsistency with the position held or the work performed due to insufficient qualifications (clause 3 of Article 81 of the Labor Code RF) is possible subject to preliminary certification and the availability of the conclusion of the certification commission (part 1, paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). This provision of the Code actually requires each employer to implement measures aimed at creating the organizational and legal conditions necessary to carry out certification of all personnel of its employees, because otherwise it deprives itself of the opportunity to terminate employment contracts with employees on the specified basis.

Judicial practice is based on the inadmissibility of terminating an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to short work experience, as well as on the grounds of lack of special education, if by force of law it is not a mandatory condition for concluding an employment contract.

5. The basis for dismissal at the initiative of the employer is the employee’s repeated failure to fulfill work duties without good reason (clause 5 of Article 81 of the Labor Code of the Russian Federation).

The scope of an employee’s responsibilities is determined by a number of legal sources. A violation of labor discipline is the failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations, in particular, include:

a) the absence of an employee from work or the workplace without good reason. It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate the specific workplace of this employee, then in the event of a dispute arising on the issue of where the employee is required to be in the performance of his work duties, it should be assumed that by virtue of the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (see), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this agreement, to comply with the internal labor regulations in force in the organization (see . To her). It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract due to changes in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for termination of the employment contract in compliance with the procedure provided for;

c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work (see p. 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

As noted in the said Resolution (clause 36), when resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full financial liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the event , when it was not concluded simultaneously with the employment contract, it is necessary to proceed from the following.

If the performance of duties for the maintenance of material assets is the main labor function of the employee, which was agreed upon when hiring, and in accordance with current legislation, an agreement on full financial liability can be concluded with him, which the employee knew about, refusal to conclude such an agreement should be considered as failure to fulfill labor duties with all the ensuing consequences.

If the need to conclude an agreement on full financial liability arose after concluding an employment contract with the employee and is due to the fact that, due to changes in current legislation, the position he holds or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility, but the employee refuses to enter into such an agreement, the employer, by virtue of Part 3 of Art. 74 is obliged to offer him another job, and in the absence of it or the employee refuses the offered work, the employment contract is terminated with him in accordance with clause 7 of Art. 77 Labor Code of the Russian Federation.

An employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Dismissal for repeated failure by an employee to fulfill work duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated failure by the employee to fulfill work duties without good reason was not removed or extinguished (part 1, paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 city ​​N 2). The list of disciplinary sanctions is established by law ().

Within the meaning of the term “repeated” (i.e., more than one) failure to fulfill labor duties can also occur in the event of repeated failure by an employee to fulfill the duties assigned to him without good reason. Considering that, by virtue of the law, a disciplinary sanction is valid for one year, i.e. 12 months, if the employer did not remove it from the employee ahead of schedule (see Article 194 of the Labor Code of the Russian Federation and the commentary to it), the employer’s right to terminate the employment contract arises if the employee, within 12 months after applying a disciplinary sanction to him, again violated labor discipline . At the same time, recognizing the failure to fulfill labor duties as repeated, one should take into account not only the repetition of the violation, but the nature and severity of the offense itself, the employee’s previous behavior and other circumstances.

If an employee has repeatedly violated labor discipline, but no disciplinary sanction has been applied to him, then he cannot be dismissed under clause 5 of Art. 81. Violation of labor discipline is recognized as repeated if, despite the penalty, the employee’s unlawful misconduct continues. In this case, a new penalty may be applied to him, including dismissal under clause 5 of Art. 81 (part 2, paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

The employer has the right to apply a disciplinary sanction to the employee even when the latter, before committing the offense, filed an application for termination of the employment contract on his own initiative, since the employment agreement in this case is terminated only upon expiration of the notice period for dismissal (part 3, paragraph 33 of the Resolution of the Plenum of the Supreme Court RF dated March 17, 2004 N 2). At the same time, the submission by an employee of a resignation letter of his own free will after committing an act that gives the employer grounds for applying disciplinary action against him, including dismissal, cannot be considered forced (see paragraph 4 of the commentary to Article 80 of the Labor Code of the Russian Federation).

Actions of an employee that are not related to his work duties should not be considered a disciplinary offense. Therefore, it is impossible to dismiss an employee under clause 5 of Art. 81 of the Labor Code, for example, for improper behavior in everyday life. Termination of an employment contract on this basis is specified in the norms of the Labor Code regulating the legal status of teaching staff (see paragraph 1 of Article 336 of the Labor Code of the Russian Federation and the commentary thereto).

6. A one-time gross violation of labor duties by an employee (clause 6 of Article 81 of the Labor Code of the Russian Federation) is sufficient grounds for terminating an employment contract with an employee, regardless of whether he has previously had disciplinary sanctions. Gross violations are:

1) absenteeism (subparagraph “a”, paragraph 6, article 81 of the Labor Code of the Russian Federation). Absenteeism means absence from the workplace without a valid reason during the entire working day (shift). Absenteeism is the absence of an employee from the workplace without good reason for more than four hours in a row during a working day (shift). It should be assumed that the workplace in this case means not only the workplace assigned to the employee, but also the one where the employee was obliged to be by virtue of the instructions of the employee’s relevant manager (on the concept of a workplace, see Article 209 of the Labor Code of the Russian Federation and the commentary To her).

As follows from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 39), dismissal on the specified basis, in particular, can be made:

a) for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

b) for an employee being outside the workplace without good reason for more than four hours in a row during the working day;

c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the two-week warning period (Part 1 of Article 80 of the Labor Code of the Russian Federation);

d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1 Article 292, Part 1 of Article 296 of the Labor Code of the Russian Federation);

e) for unauthorized use of days off (see thereto), as well as for unauthorized going on vacation (see Article 123 of the Labor Code of the Russian Federation and commentary thereto). At the same time, it is necessary to take into account that the use of rest days by an employee is not absenteeism in the case where the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with in accordance with Part 4 of Article 186 of the Labor Code of the Russian Federation, a day of rest immediately after each day of donating blood and its components).

When the court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer itself (see Articles 72.1 and 72.2 of the Labor Code of the Russian Federation and commentary to them). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement at his previous job (clause 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the wages of the reinstated employee can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced (clause 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 );

2) appearing at work in a state of alcohol, drug or other toxic intoxication (subparagraph “b”, paragraph 6, article 81 of the Labor Code of the Russian Federation).

By virtue of Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee who appears at work in a state of alcohol, drug or other toxic intoxication is not allowed by the employer to work that day (shift). However, in accordance with sub. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation, employees who were drunk or in a state of narcotic or toxic intoxication during working hours at the place of performance of work duties may be dismissed, regardless of suspension from work in connection with this condition.

Dismissal on this basis can also occur when the employee during working hours was in such a state not at his workplace, but on the territory of the organization or facility in which, on behalf of the administration, he had to perform a labor function (see paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). It also does not matter when the employee was drunk at work: at the beginning or end of the working day. At the same time, if an employee, while drunk on the territory of an organization or other facility, was absent from his workplace for more than four hours in a row during the working day, the employer has the right to terminate his employment contract for absenteeism without good reason.

An employee's drunken state or drug or toxic intoxication can be confirmed by both a medical report and other types of evidence;

3) disclosure of secrets protected by law (state, commercial, official and other, including personal data of another employee or employees), which became known to the employee in connection with the performance of his job duties (subclause "c" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). On the concept, procedure and conditions for an employee’s access to state, commercial and official secrets, see paragraph 5 of the commentary to Art. 57 Labor Code of the Russian Federation.

One of the main and indispensable conditions for protecting the right to official and commercial secrets in accordance with Art. 139 of the Civil Code of the Russian Federation advocates the adoption by the owner of information of specific measures to protect their confidentiality. These measures are divided into organizational (for example, personnel selection), technical (use of technical means of information security) and legal.

Legal measures include:

development and adoption of special regulations on official and commercial secrets;

approval of the list of information constituting official and commercial secrets;

inclusion in employee employment contracts of conditions on non-disclosure of official and commercial secrets, etc.

If the owner of this information (the employer) does not take such measures, then he is deprived of the opportunity to both protect his rights in relations with third parties and make any claims against his own employees who transfer this information to third parties or use it outside the organization.

Accordingly, as stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 43), if an employee challenges the dismissal under sub. "c" clause 6 of Art. 81 of the Code, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secret protected by law or to the personal data of another employee, this information became known to the employee in connection with performance of his labor duties and he undertook not to disclose such information;

4) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation).

On this basis, employees whose guilt has been established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties may be dismissed. The commented norm speaks about the theft of someone else's property, without specifying who is the subject of ownership of the property - the employer or a third party (another business entity, another employee).

It is indisputable that the following property is subject to this rule:

a) owned by the employer or in his possession or use on other legal grounds;

b) accepted by the employer under the protection and for failure to ensure the safety of which he may be brought to property liability (for example, clothes handed over to the wardrobe; equipment belonging to organizations or individuals performing work under civil contracts on the territory of the organization, the safety of which is guaranteed by the employer ; a tool belonging to other employees who used it to perform work under an employment contract).

At the same time, the wording of the commented grounds for dismissal does not exclude the possibility of terminating an employment contract with an employee in the event of theft by him of any other property located at his place of work.

Taking this into account, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states (part 2, paragraph 44) that any property that does not belong to a given employee should be regarded as someone else’s property, in particular property belonging to the employer, others employees, as well as persons who are not employees of this organization.

Since dismissal under sub. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is a disciplinary measure established by law (see Art. 193 of the Labor Code of the Russian Federation and the commentary to it) the month period for applying this measure is calculated from the date the court verdict or decision of the judge, body, official authorized to consider cases enters into legal force on administrative offenses (part 3, paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

If a criminal penalty is imposed for committing the specified act, by virtue of which the possibility of continuing work is excluded, the employee may be dismissed as under sub. "d" clause 6 of Art. 81, and according to paragraph 4 of Art. 83 of the Labor Code of the Russian Federation (see Art. 83 of the Labor Code of the Russian Federation and commentary thereto);

5) violation by the employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph "e" of paragraph 6 of Article 81 of the Labor Code of the Russian Federation) .

In accordance with labor legislation, the employee is obliged to comply with labor protection requirements established by laws and other regulatory legal acts, as well as rules and instructions on labor protection (see F and commentary thereto). As follows from this article, the obligation to comply with labor protection requirements applies to all persons in labor relations, therefore, failure to comply with this obligation by any employee is a disciplinary offense. Accordingly, the employment contract can be terminated with any person who has committed the act specified in subparagraph. "d" clause 6 of Art. 81 Labor Code of the Russian Federation.

Termination of an employment contract is possible provided that the employee’s actions caused serious consequences or knowingly created a real threat of their occurrence. Consequently, the employer must establish, and in the event of a dispute, prove the presence of: a) unlawful actions of the employee; b) grave consequences; c) the necessary cause-and-effect relationship between the employee’s actions and the resulting consequences. The presence of such circumstances is established by the labor protection commission or the labor protection commissioner in accordance with the established rules (see Articles 217, 218, 227 - 231 of the Labor Code of the Russian Federation and the commentary thereto).

If an employee is dismissed due to the fact that his actions created a real threat of grave consequences, the socially significant interests that were endangered as a result of the employee’s unlawful actions must be determined, firstly; secondly, the circumstances that prevented the onset of grave consequences. These may include randomly occurring factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.

The employer must establish the employee's guilt. It is expressed in the fact that the employee, firstly, was aware or could and should have been aware of the unlawful nature of his actions related to violation of labor protection requirements; secondly, he foresaw or could and should have foreseen the likelihood of grave consequences. If the employee could not and should not have foreseen the onset of grave consequences, he cannot be dismissed on the grounds in question, which does not exclude disciplinary liability for violating labor safety rules.

In the complete absence of the employee’s guilt, holding him accountable and terminating the employment contract under clause. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is excluded. Special cases of this kind are the actions of an employee in a state of emergency or actions aimed at fulfilling the order of a competent manager. In the latter case, the employee’s liability is excluded provided that he warned his immediate or superior manager about the possibility of a situation arising that threatens the rights and interests protected by law (see Article 214 of the Labor Code of the Russian Federation and the commentary thereto).

Since the law connects the employee’s actions with the occurrence (or the possibility of occurrence) of grave consequences, the existence of grounds for terminating an employment contract with him can be confirmed by a court verdict that has entered into force.

Along with dismissal on the grounds in question, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Administrative Code).

As follows from the content of paragraph 6 of Art. 81 of the Labor Code, the list of cases that constitute a gross violation by an employee of his duties is exhaustive and cannot be interpreted broadly (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). Termination of an employment contract on any of the grounds specified in this paragraph of Art. 81 of the Labor Code, is carried out in the manner established for the application of disciplinary sanctions (see Art. 195 of the Labor Code of the Russian Federation and the commentary thereto).

7. The grounds listed in paragraphs 1, 2, 3, 5 and 6 of Art. 81 of the Labor Code are among the general grounds for termination of an employment contract at the initiative of the employer. In terms of their content and legal significance, these grounds presuppose both the presence of guilty actions of the employee and their absence. Along with them Art. 81 contains a list of special grounds (clauses 4, 7 - 13) for the dismissal of workers of certain categories in the presence of special conditions arising from the peculiarities of the legal status of these workers. Most of these grounds presuppose the presence of guilty actions on the part of the employee.

8. A change in the owner of the organization’s property (clause 4 of Article 81) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.

Since in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants, by virtue of paragraph. 2 p. 2 art. 48 of the Civil Code of the Russian Federation have only rights of obligations in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of an employment contract under clause 4 of Art. 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property of a business partnership or company still remains the partnership or company itself and there is no change in the owner of the property (part 4, paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17 March 2004 N 2).

When the owner of the organization's property changes, the new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant (see Article 75 of the Labor Code of the Russian Federation and the commentary thereto). The only legal basis that gives rise to the employer’s right to terminate an employment contract with these persons is the fact of a change in the owner of the organization’s property, therefore, for the application of this clause, the personal and professional qualities of those being dismissed (level of qualifications, discipline, etc.) do not matter.

A change in the owner of an organization's property is not grounds for terminating contracts with other employees of the organization. If an employee refuses to continue working due to a change in the owner of the organization’s property, the employment contract is terminated under clause 6 of Art. 77 Labor Code of the Russian Federation.

For guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract due to a change in the owner of the organization, see Art. 181 of the Labor Code of the Russian Federation and commentary to it.

9. An employee who directly services monetary or commodity assets may be dismissed due to the loss of confidence in him by the employer in the event of committing guilty actions (clause 7 of Article 81).

Dismissal on this basis is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.), and provided that they have committed such guilty actions that gave the employer grounds for loss of confidence in him (part 1, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). Such employees, as a general rule, are those who belong to the category of persons who bear full financial responsibility for the monetary or commodity values ​​entrusted to them on the basis of special laws or special written agreements (see Articles 242 - 245 of the Labor Code of the Russian Federation and commentary thereto) .

Accountants, accountants, merchandisers, controllers, labelers and other employees cannot be fired due to loss of trust, since material assets are not directly entrusted to them.

Loss of trust on the part of the employer must be based on objective evidence of the employee’s guilt in causing material damage or committing illegal actions. If the employee’s guilt is not established, then he cannot be dismissed on the grounds of loss of trust, despite the presence of shortages, damage to entrusted valuables, etc.

If the fact of theft, bribery and other mercenary offenses is established, an employee may be dismissed on the basis of loss of trust and in the case when these actions are not related to their work (part 2, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

10. The commission of an immoral offense by an employee performing educational functions that is incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation) is also a special basis for termination of the employment contract. On this basis, it is permissible to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, vocational training specialists, educators of children's institutions. Employees who do not perform educational functions (including heads of organizations and structural divisions) are not subject to dismissal on this basis.

An offense that contradicts generally accepted moral standards is considered immoral, and it does not matter whether it is related to the work performed or not (clause 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

In particular, an offense of this kind should be considered the use of educational measures that are associated with physical (or) mental violence against the student’s personality (see paragraph 2 of Article 336 of the Labor Code of the Russian Federation and the commentary thereto). The severity of the misconduct is a matter of fact, subject to assessment taking into account specific circumstances by the person carrying out the dismissal or the labor dispute resolution body.

The Supreme Court of the Russian Federation (clause 47 of the Resolution of the Plenum of March 17, 2004 N 2), and after it the legislator (see Article 192 of the Labor Code of the Russian Federation and commentary thereto) proceed from the fact that if guilty actions giving grounds for loss of trust (see paragraph 9 of the commentary to this article), or an immoral offense was committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed from work (respectively, according to paragraphs 7 or 8 Article 81 of the Labor Code of the Russian Federation) subject to compliance with the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.

However, given that termination of the employment contract under clauses 7 and 8 of Art. 81 of the Labor Code of the Russian Federation can also be carried out in cases where guilty actions giving rise to loss of confidence, or, accordingly, an immoral offense were committed by an employee not at the place of work and not in connection with the performance of his job duties, dismissal in this case is not a disciplinary measure, the application of which is subject to the deadlines established by the Code, since by virtue of Part 1 of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for failure to perform or improper performance by an employee, through his fault, of the labor duties assigned to him. At the same time, when considering cases of reinstatement of persons dismissed on these grounds, courts must take into account the time that has elapsed since the commission of an immoral offense or guilty actions of an employee in whom confidence has been lost, his subsequent behavior and other specific circumstances of significance to properly resolve the dispute. Accordingly, by virtue of Part 5 of Art. 81 of the Labor Code of the Russian Federation in the current version, dismissal in this case is possible no later than one year from the date of discovery of the misconduct by the employer. The day when the misconduct was discovered should be considered the day when the employer became aware or should have become aware of the fact that the misconduct had been committed. The circle of relevant employer officials must be determined according to the rules established for recording the day the disciplinary offense was discovered (see Article 193 of the Labor Code of the Russian Federation and the commentary thereto).

11. The adoption of an unreasonable decision by the head of an organization (branch, representative office), his deputies and the chief accountant can serve as a basis for termination of an employment contract only if this entails a violation of the safety of property, its unlawful use or other damage to the organization’s property (clause 9 Article 81 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is possible if the following conditions are met:

By making a decision that was subsequently recognized as unfounded, the employee acted outside the normal production and economic risk or was not at all in accordance with the goals of the employer’s business activities;

The employee’s unreasonable decision actually resulted in property damage (both positive and in the form of lost profits) to the employer.

When deciding whether the decision made was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if a different decision was made. Moreover, if the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under clause 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (part 2, paragraph 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are outside the economic goals of the employer as the owner of the property. The basis for termination of the employment contract with these employees occurs in this case due to not only loss or damage to property, but also the loss of part of its value, i.e. wear (depreciation). It does not matter who caused the damage - the employee himself or other persons; For dismissal, the fact that the decision made by the guilty employee provided the opportunity (served as a necessary condition) for causing damage to the employer is sufficient.

12. A one-time gross violation by the head of an organization (branch, representative office), or his deputies of their labor duties (clause 10 of Article 81 of the Labor Code of the Russian Federation) is grounds for termination of an employment contract with a special subject of the employment contract, which in this case are the head of the organization (branch and representative office), as well as his deputies.

In accordance with Art. 55 of the Civil Code of the Russian Federation, representative offices and branches of a legal entity act as separate structural units. A representative office is a separate division of a legal entity located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. The heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney.

The employment contract with the heads of other structural divisions and their deputies, as well as the chief accountant of the organization cannot be terminated under clause 10 of Art. 81 of the Labor Code of the Russian Federation (part 4, clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

This basis for termination of an employment contract almost textually reproduces the content of paragraph 6 of Art. 81 Labor Code of the Russian Federation. Consequently, the head of the organization (branch, representative office) and his deputies can be dismissed either under clause 6 (when committing an offense that is a gross violation) or under clause 10 of Art. 81 Labor Code of the Russian Federation. In the latter case, the basis for making a decision to terminate the employment contract with the manager may be any violation by him of his labor duties, recognized as gross, including that in accordance with which the employment contract may be terminated under clause 6 of Art. 81 Labor Code of the Russian Federation. The question of the severity of the disciplinary offense that served as the basis for the dismissal of the employee under clause 10 of Art. 81, there is a question of fact, i.e. it is subject to assessment taking into account all the specific circumstances under which it was committed. Such an assessment is made by the person authorized to carry out the dismissal, and if a dispute arises, by the labor dispute resolution body. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm to the health of employees or property damage to the organization (parts 2 and 3 clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

13. Submission by an employee of forged documents to the employer when concluding an employment contract (clause 11 of Article 81 of the Labor Code of the Russian Federation) as a basis for termination of the employment contract at the initiative of the employer means that in this case the grounds for dismissal are the guilty (deliberate) actions of the employee.

It should be borne in mind that in accordance with Art. 81 of the Labor Code of the Russian Federation in its current version, dismissal under clause 11 of Art. 81 of the Labor Code of the Russian Federation is possible only if the employee submits false documents to the employer when concluding an employment contract (for example, when concluding an employment contract, the employee presented a falsified document on special education). If the employer provides knowingly false information that prevents the conclusion of an employment contract, dismissal is carried out in accordance with the rules established by Art. 84 Labor Code of the Russian Federation. New edition of the specified paragraph of Art. 81 of the Labor Code of the Russian Federation raises some doubts, since it neutralizes the differences in the grounds for termination of an employment contract under this paragraph and in accordance with.

The question remains unclear regarding the consequences of submitting false documents to an employer when concluding an employment contract. Firstly, such documents can certify that an employee has special knowledge or skills, the possession of which is an indispensable condition for concluding an employment contract with him. Accordingly, if the documents are falsified, this is a circumstance giving grounds for the dismissal of this person not only under clause 11 of Art. 81 of the Labor Code, but also under Art. 84 Labor Code of the Russian Federation. Secondly, forged documents submitted by a person applying for a job may not determine the conclusion of an employment contract with him, but at the same time indicate the right to receive any additional benefits and advantages at work. It seems that if such circumstances are discovered, the employee may be dismissed in accordance with paragraph 11 of Art. 81 Labor Code of the Russian Federation.

By virtue of Part 2, Clause 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2007 No. 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents, then the employment contract with such an employee is terminated under the specified clause, and not on the grounds listed in Art. 84 Labor Code of the Russian Federation.

14. In accordance with paragraph 13 of Art. 81 employment contracts with the head of the organization, members of the collegial executive body of the organization may be terminated in cases provided for by the employment contract. Thus, the legislator interprets the termination of an employment contract on the grounds established by the employment contract as one of the special cases of dismissal of an employee at the initiative of the employer. In fact, the employment contract with the manager (member of the collegial executive body of the organization) may provide for cases of termination of the employment contract either at the initiative of the employee or due to the occurrence of circumstances that do not depend on the will of the employee or the will of the employer.

15. As follows from paragraph 14 of Art. 81 of the Labor Code, an employment contract at the initiative of the employer can be terminated in cases other than those listed in this article, established by the Labor Code of the Russian Federation and other federal laws. In particular, such cases include additional grounds for terminating an employment contract with the head of an organization and a member of its collegial executive body (see paragraphs 1 and 2 of Article 278 of the Labor Code of the Russian Federation and the commentary thereto); termination of an employment contract with a part-time worker (see Article 288 of the Labor Code of the Russian Federation and commentary thereto); with an employee - a foreign citizen.

A special case of termination of an employment contract is the dismissal of an employee due to reaching an age that, by force of law, precludes him from retaining the given job.

As a general rule, restrictions on labor rights and freedoms or the provision of any advantages depending on circumstances not related to the employee’s business qualities, including depending on age, are recognized as discrimination and are prohibited (see also the commentary on it). It follows from the content of the Constitution that retirement age cannot serve as an obstacle to citizens’ exercise of the right to work, both when concluding an employment contract and when terminating it. In a number of cases provided for by federal law, exceptions are allowed from this general rule (for example, when dismissing a state or municipal employee, certain categories of teaching staff, etc.).

16. Termination of an employment contract is considered legal provided that, in addition to the existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees (see paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17 March 2004 N 2). This procedure provides:

prohibition of dismissal of certain categories of workers. Dismissal is not allowed: an employee during the period of his temporary disability and while on vacation (Part 6 of Article 81 of the Labor Code of the Russian Federation); pregnant women, as well as women with children under three years of age; single mothers raising a child under 14 years of age (disabled child under 18 years of age); other persons raising these children without a mother (see her);

warning of impending dismissal. This obligation is assigned to the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction in the number or staff of employees (see here).

When an employment contract is terminated on the specified grounds (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation), employees are notified of the upcoming dismissal by the employer personally against signature at least two months before dismissal. If the employee fails to comply with the notice period for dismissal, if he is not subject to reinstatement on other grounds, the court changes the date of his dismissal in such a way that the employment contract is terminated upon expiration of the notice period established by law.

The period for which the employment contract is extended due to the postponement of the dismissal date is subject to payment to the employee based on his average earnings.

In the event of dismissal of employees due to a reduction in numbers or staff, the preferential right to remain at work is taken into account (see Article 179 of the Labor Code of the Russian Federation and the commentary thereto).

When making a decision to reduce the number or staff of an organization’s employees and the possible termination of employment contracts with employees in accordance with clause 2 of Art. 81 the employer is obliged to inform the trade union body of the primary trade union organization about this in writing no later than two months, and in case of mass dismissal - no later than three months before the start of the relevant activities (see Article 82 of the Labor Code of the Russian Federation and the commentary thereto).

When making a decision to liquidate an organization, reduce the number or staff of the organization's employees and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing no later than two months before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements for them, terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization’s employees can lead to mass dismissal of workers - no later than three months before the start of the relevant measures (clause 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”). On the concept, criteria and organizational and legal consequences of mass dismissal of workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary thereto;

carrying out mandatory certification. On the conditions and procedure for conducting certification upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, paragraph 8 of the commentary to Art. 82 TK;

taking measures to find employment for the released employee. In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal due to a reduction in the number or staff of employees, as well as the employee’s inconsistency with the position held or the work performed (clauses 2 and 3 of Article 81) is allowed if it is impossible to transfer the employee with his consent to another job.

The same rule applies upon termination of an employment contract with the rector, vice-rector, dean of the faculty, head of a branch (institute), state or municipal educational institution of higher professional education in connection with their reaching the age of 65 years (see Article 332 of the Labor Code of the Russian Federation and commentary to her).

Other work means any other work that the employee is able to perform in accordance with his professional qualifications or state of health. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization that corresponds to the employee’s qualifications, and in the absence of such work, another vacant lower-level position or lower-paid job available in the organization that the employee can perform taking into account the above factors (clause 29 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with a warning about his upcoming dismissal. The employee’s consent to perform a certain job (filling a vacant position) or his refusal to accept a new job (position) is recorded in writing and certified by the employee’s signature.

Dismissal of employees in the event of termination of the activities of a separate structural unit located in another area is carried out according to the rules provided for cases of liquidation of an organization. This, in particular, means that the employer is relieved of the obligation to employ laid-off workers in the organization.

When considering cases of reinstatement of civil servants dismissed due to the liquidation of a government agency or reduction of civil service positions, one should be guided by the provisions of Art. Art. 31, 32 and 38 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”.

It must be borne in mind that, based on Art. 73 of the said Federal Law, the Labor Code of the Russian Federation, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms, may be applied to relations related to the civil service, in part, not regulated by the Federal Law “On the State Civil Service of the Russian Federation” (clause 30 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Taking into account the motivated opinion of the elected trade union body. On the grounds for participation and the procedure for taking into account the motivated opinion of the elected trade union body in the consideration of issues related to the termination of an employment contract at the initiative of the employer, see Art. , to them.

Obtaining consent by the employer to terminate the employment contract with the employee. Representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them, except in cases of termination of the employment contract for committing an offense for which dismissal is provided for in accordance with the Code and other federal laws From the job ().

Representatives of workers and their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent (see also the commentary to it).

Leaders (their deputies) of elected collegial bodies of primary trade union organizations who are not released from their main work may be dismissed under clauses 2, 3 or 5 of Art. during their term of office and within two years after its end. 81 of the Labor Code of the Russian Federation only with the prior consent of the relevant higher elected trade union body (see paragraph 11 of the commentary to Article 82; Art., and the commentary thereto).

Let's consider in what cases Article 81 of the Labor Code of the Russian Federation is applied. Experts will explain the procedure for terminating an employment relationship and give 13 reasons when an employer can fire on its own initiative.

In the article

Article 81 of the Labor Code of the Russian Federation establishes in which cases an employment contract (employment contract) with an employee can be terminated at the initiative of the employer. Let's consider all the nuances and legal aspects of the procedure.

In what cases is it permissible to terminate an employment contract at the initiative of the employer: Article 81 of the Labor Code of the Russian Federation

13 reasons why an employer can terminate a contract:

1. Upon liquidation of an organization or upon termination of the activities of an individual entrepreneur (individual entrepreneur) on the basis of part one of Art. 81 Labor Code of the Russian Federation.
2. By reducing staff (numbers).
3. In case of inadequacy for the position held due to an insufficient level of qualifications, if this is confirmed by the results of the certification.
4. When the owner of the company changes, paragraph four applies to the manager, deputy, and chief accountant.
5. In case of repeated failure to fulfill job duties. If this happens systematically without good reason and the employee already has a disciplinary sanction.
6. If the employee violates his job duties one time. The paragraph is divided into several subparagraphs.
7. When guilty actions are committed by an employee who is entrusted with servicing commodity or monetary valuables, if the guilty actions served as the basis for loss of trust on the part of the employer.
8. When an employee entrusted with the functions of education commits an immoral offense, if it is incompatible with the further continuation of teaching activities.
9. When an unfounded decision is made by the head of a company or branch, representative office, deputy heads, chief accountant, if this entails the unlawful use of property, violation of security or other damage to the entire organization.
10. In case of a single gross violation of labor duties by the head or deputies of the organization.
11. When an employee submits false documents to the employer during the conclusion of a TD.
12. In case of occurrence of cases provided for by the TD with the head of the company, members of the collegial executive bodies of the company.
13. If other cases arise, established by the Labor Code of the Russian Federation, other federal laws.

Clause 6 of Article 81 of the Labor Code of the Russian Federation

Clause 6 of Article 81 of the Labor Code of the Russian Federation provides for the dismissal of an employee at the initiative of the employer for a one-time gross violation of assigned duties. What does this concept include? Absenteeism. If the employee was absent from the workplace for more than four hours in a row or during the entire shift (working day). Dismissal for absenteeism (Article 81 of the Labor Code of the Russian Federation, paragraph six) must be justified. The fact of absenteeism must be documented, and a written explanation of the offense must be obtained from the employee.

Termination of a trade agreement is carried out when a person appears on the territory of the organization or at the workplace in a state of any type of intoxication: drugs, alcohol, toxic. Dismissal for drunkenness (Article 81 of the Labor Code of the Russian Federation, paragraph six) is carried out if there is confirmation of the established fact of intoxication.

Dismissal is also provided for disclosure of secrets protected by law: commercial, government, official, as well as for disclosing personal information of other employees, if the dismissed person has access to such information.

The employer has the right to terminate the employment contract on his own initiative and if the employee commits theft of someone else’s property, damage, intentional destruction, embezzlement, if the fact is established by a court, body, official authorized to consider cases of administrative offenses.

Article 81, paragraph 6 of the Labor Code of the Russian Federation in the last subparagraph provides for the termination of a TD due to violation of occupational safety (occupational safety and health) requirements, if this entailed serious consequences or created a threat of such consequences. Expert "System Personnel" .

Which clause regulates the termination of an employment contract for violation of labor discipline: Article 81 of the Labor Code of the Russian Federation

Clause 5 of Article 81 of the Labor Code of the Russian Federation establishes the possibility of termination of a labor contract at the initiative of the employer for repeated failure by the employee to fulfill the duties assigned to him. If the employee already has , the employer has the right, on his own initiative, to terminate the employment relationship in case of repeated violation of discipline.

Please keep in mind that when terminating employment under this clause, the employer must comply with the established rules. A disciplinary sanction must have been previously applied to the employee, and at the time of termination of the TD it had not been removed or extinguished.

Wrongful dismissal for violation of labor discipline (Article 81 of the Labor Code of the Russian Federation, paragraph five) will lead to legal proceedings. If the procedure for terminating a contract is not followed, the employer will be required to reinstate the employee at work. Repeated violation of labor discipline by an employee must be confirmed by the fact of imposition of a disciplinary sanction - by order.

Article 81, paragraph 2 or 3 of part one of the Labor Code of the Russian Federation

Article 81 of the Labor Code of the Russian Federation with comments of 2018 is applied by the employer according to the established points. Certification is carried out in the manner prescribed by labor legislation, regulations that contain labor law norms, local acts adopted taking into account the opinion of a trade union or other representative body of workers.

Termination of the TD under points two and three is permissible if it is not possible, with the written consent of the employee, to ensure a transfer to another position available to the employer. The employee must be offered all vacancies of suitable qualifications that are open and that correspond to the employee’s health condition.

How to apply Article 81 of the Labor Code of the Russian Federation, paragraph 7

Article 81 of the Labor Code of the Russian Federation, paragraph seven, provides for the possibility of termination of a labor contract at the initiative of the employer due to loss of trust. Guilty actions of an employee include not only guilty actions that served as the basis for loss of trust, but also confirmed facts of negligence and negligence.

To lose trust on the part of the employer, it is not necessary that the offense be committed directly in the workplace. Within one year from the moment it became known that the employee committed theft, was convicted of bribery, fraud or other similar actions, the employer has the right to terminate the employment contract, following the appropriate procedure. A selection of articles prepared by experts from the Personnel Business magazine will help you get answers to the most difficult questions related to dismissal.

Article 81 of the Labor Code of the Russian Federation establishes in which cases an employment contract (employment contract) with an employee can be terminated at the initiative of the employer. The dismissal procedure must be carried out in accordance with the requirements of current labor legislation. The article discusses the main reasons that make it possible to terminate a trade union at the initiative of the employer.

Violation of labor discipline may result in reprimand, reprimand and dismissal. The last “capital measure” of punishment is applied rarely and with an evidence base, since the employee can appeal the employer’s decision in court.

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

It's fast and FOR FREE!

Therefore, upon dismissal, HR departments of enterprises are required to comply with a number of important formalities.

Concept

Labor discipline refers to the standards of behavior described in the employment contract and in the internal regulations of the organization.

They relate to punctuality, thrift with the property of the institution, not talkativeness in matters relating to trade secrets, and maintaining a morally stable appearance. In this case, the employee’s working period is assessed.

He cannot be convicted of immoral behavior on a non-working day or in his free time.

Grounds for recording a violation

Any defect committed during working hours and related to the performance of official duties is regarded as a violation. Violation may result in punishment.

Examples of “neglect” of work issues:

1. Intentional errors in accounting documents that led to a decrease in income and bankruptcy. Corruption for the purpose of enrichment.
2. Damage to property on a large scale. Theft of items that are on the balance sheet of the enterprise (including under the pretext of write-off).
3. Inappropriate behavior.
4. Appearing at the workplace in a state of alcoholic, toxic or drug intoxication.
5. Absence from work for a long time without good reason (three to four hours are taken into account).
6. Failure to fulfill duties prescribed by job description.
7. Disclosure of personal data, information about third parties, information that became known during the performance of a job function.
8. Providing false documents when applying for a job that distort the true state of affairs.
9. Violation of labor protection rules, which resulted in a threat to the life and health of people.

What is the penalty for systematic violation of labor discipline? Examples

When labor discipline is violated, no one should remain silent. To ensure that violations do not become systematic, forms of punishment such as reprimands and reprimands are used:

A reprimand is a form of disciplinary action. An order is issued in this regard. The notice will be lifted after exactly one year.

A reprimand is a form of disciplinary action. Legal sanction is applied under Article 192 of the Labor Code of the Russian Federation. This is an average measure of responsibility, something between dismissal and reprimand.

The statute of limitations for filing this type of offense is 6 months, and if accounting errors are identified – 2 years.

Which article of the Labor Code describes dismissal for violation of labor discipline?

The Labor Code allows the employer to dismiss for violation of discipline under paragraphs 5-11 of Article 81 (“Termination of an employment contract at the initiative of the manager”). Each section of this document is devoted to specific issues.

Legal dismissal will take place for the following reasons:

Article of the Labor Code	Decoding
Paragraph five prohibits repeated violation of labor duties	Two disciplinary sanctions for misconduct or more (reprimands, reprimands).
Point six describes a one-time but gross violation	Gross violation of labor order. It means absenteeism, appearing at work while drunk, an act of corruption, disclosure of state secrets, official or commercial information.
Point seven concerns unjust enrichment, conflict of interest	Violation by a financially responsible person of the legal order for the distribution of material and financial benefits. Such actions lead to a loss of trust on the part of the employer. For employees of municipal and state authorities - incomplete or unreliable provision of information on income and expenses, concealment of accounts and property.
Paragraph eight, valid for educators and teachers	Immoral behavior in children's (educational) and school (educational) institutions.
Point nine, designed for financiers	For the theft of financial assets from an enterprise's account, the actions of accountants in this case cause damage to the enterprise.
Point ten, only for managers.	One-time gross violation of labor duties by the boss or his deputy.
Point eleven, for specialists who have recently been hired by the enterprise.	For forgery when applying for a job, when presenting “purchased” diplomas, when providing false information.

Video: Types of penalties

The procedure for applying the punishment procedure

Dismissal for violation of labor discipline is actually the unilateral termination of an employment contract with a corresponding entry in the work book of the offending employee.

This means that the employee has completely lost the “vote of confidence.” The employer is ready to take punitive measures against him.

The procedure for terminating the agreement is as follows:

• When establishing the fact of a disciplinary offense, the owner of the organization draws up an act. The form of the act is taken from the appendices of the Internal Regulations. The document is signed in duplicate and in the presence of two witnesses. The first form remains “in the hands” of the unfortunate employee, the second - in the personnel department of the enterprise.
• Also, grounds for applying punitive measures may be: a working time log or a memorandum from the immediate superior. It all depends on the “corpus delicti.”
• It is important for an employee of an organization to provide an explanatory note on time. It describes the reasons that prompted the employee to commit a violation. The time to provide logical explanations is no more than two days. And only the employer decides whether to consider these circumstances as valid.
• If the employer decides to initiate dismissal, then a special commission is created to implement its goals. She studies all the documents in the case and makes a verdict. The decision of the commission members is recorded.
• All documents are sent to the personnel department, where a dismissal order is drawn up.
• The order is signed by the head of the institution.

Order in the punishment procedure, its role

The order is drawn up by the personnel service of the organization.

According to the T-4 form, its main attributes are:

1. Name of the organization.
2. Code according to OKPO, OKUD.
3. Number and date of compilation.
4. Number of the employment contract with the employee, date of its conclusion.
5. Date of termination of the employment contract.
6. Full name of the employee, his personnel number.
7. Place of work (department, sector), position.
8. Reason for dismissal, specific article of the Labor Code.
9. Grounds for dismissal (memo, act).
10. Director's signature with transcript.

This is what an order for dismissal for absenteeism looks like:

LLC "Snow Valley"

OKUD form

Document number Date of preparation

Order (instruction)

on termination of the employment agreement

Terminate the employment agreement dated____No.___

dismiss on ____________ date

Full name of the employee in the genitive case____________ Teterina Elena Veniaminovna

Structural unit, position____________meat shop, packer

Single gross violation of labor duties, absenteeism, under paragraph 6 of part one of Article 81 of the Labor Code

Grounds (document, number, date) 1. Memo from workshop foreman E.S. Golovin dated

1. Internal investigation report No._from_
2. Explanatory note by Teterina E.V. from__

Head of the enterprise____________________ Vasnetsov E.S.

The order was reviewed (signed) by E.V. Teterina.

Arbitrage practice

Dismissed employees who believe that their rights have been violated often turn to the courts. The judge may even acquit such workers, restore their previous status and force them to compensate for forced absences.

There is only one reason for this decision: the employer violated the dismissal procedure.

Examples from court cases where the employer made a mistake and the employee was reinstated to his job by court decision:

1. The dismissal order was drawn up retroactively. The dismissal order was drawn up incorrectly: there is no article of the Labor Code of the Russian Federation, and the documents grounds for dismissal are not listed.
2. An explanatory note was not taken from the employee.
3. Failure to meet deadlines. The employer has the right to punish the guilty person in accordance with Article 193 of the Labor Code of the Russian Federation within one month after recording the offense.
4. Absence of an explanatory note from the employee in the internal investigation.
5. The absence of documents in the employee’s personal file confirming that he has an outstanding disciplinary sanction.

If dismissal occurs under Article 81 of the Labor Code, then the former employee has the right to appeal to the court. Have no doubt, when the legal order is violated, the employer himself will be held accountable. As the people say: “Don’t dig a hole for someone else - you yourself will fall into it!”

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

For a gross one-time violation of labor duties, an employee can be dismissed on the basis of clause 6, part 1, art. 81 of the Labor Code of the Russian Federation. Moreover, it is possible to dismiss on this basis, including: women with children under three years of age; single mothers raising a child under 14 years of age (disabled child under 18 years of age); workers raising a child under 14 years of age (a disabled child under 18 years of age) without a mother. You can't just fire a pregnant woman. This is stated in Art. 261 of the Labor Code of the Russian Federation.

Under one-time gross violation of labor duties means:

1. 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 (shift);
2. the appearance of an employee at work (at his workplace or on the territory of the employing organization 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;
3. 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;
4. 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 resolution of a judge, body, official authorized to consider cases of administrative offenses;
5. violation by an employee of labor protection requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences.

In fact, the grounds for dismissal provided for in clauses 5 and 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, are somewhat similar. After all, in both cases there is some kind of violation of labor duties committed by employees, for which the employer subsequently applies disciplinary action. The difference is that, according to clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, an employee commits at least two violations of labor discipline (that is, repeatedly), each of which is not recognized as a gross violation of labor duties. Moreover, for the first violation the employee has already been reprimanded or reprimanded. And for a second repeated violation, a disciplinary sanction in the form of dismissal is imposed.

In a situation where the termination of the employment contract occurs on the basis of clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employee commits only one violation of labor duties, but it is recognized as gross. A closed list of such violations is given above. For such a violation, the employer has the right to immediately (without waiting for the violation to be committed again) to apply a disciplinary sanction in the form of dismissal.

Let's consider the dismissal procedure and the features that should be taken into account for each reason separately:

Dismissal for absenteeism

Absenteeism is a gross violation of labor discipline. At the same time, labor legislation understands absenteeism as the absence of an employee from the workplace without good reason:

• or during the entire working day (shift) regardless of its duration;
• or more than four hours in a row during a working day (shift).

Based on clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, absenteeism, which may result in the imposition of a disciplinary sanction in the form of dismissal, is equivalent to:

• abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the employment contract, as well as before the expiration of the two-week warning period;
• unauthorized use of days off, as well as unauthorized departure on vacation (main, additional).

But if the employer was obliged, due to the requirements of labor legislation, to provide days of rest, but did not do so, the employee’s absence from work cannot be considered absenteeism.

Note! An employee can also be fired if he was absent from work for four hours, if these four hours included lunch time (usually one hour). This conclusion was made by the Presidium of the Moscow City Court in the Resolution of August 16, 2007 in case No. 44g-570. It notes that a lunch break cannot interrupt the period of continuous absence from the workplace. After all, labor legislation does not define a working day as working hours during the day before lunch and after lunch.

When terminating an employment contract on this basis, documentary evidence of absenteeism by the employee is required. Otherwise, if the fact of absenteeism is not confirmed, the dismissal will be considered illegal with all the ensuing consequences.

To document the fact of absenteeism, it is necessary:

• time sheet with the corresponding mark made. Working time sheets in commercial organizations are kept according to a unified form N T-12 or N T-13 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). When the reason for an employee’s absence from the workplace is unknown, the letter code “NN” is entered on the timesheet. After the fact of absenteeism has been established (that is, the employee does not provide any documents confirming valid reasons for his absence, for example, sick leave), the letter code “PR” is entered - absenteeism (absence from the workplace without valid reasons);
• certificate of absence of an employee from the workplace. It should indicate the time the report was drawn up, the details of the person who recorded the employee’s absence from the workplace (usually the employee’s immediate supervisor), and the time the employee was absent from work. Instead of an act, the employee’s immediate supervisor can also draw up a memo addressed to the head of the organization;
• notification letter. It is sent to the employee’s home address in case of prolonged absence from work. The notice asks him to report to work and explain the reasons for his absence. The letter must be registered with return receipt requested. It is better to issue it on the letterhead of the organization. The letter indicates the period within which the employee should respond (usually a maximum of two weeks). After the email notification is returned, you need to wait for a response. If there is no answer, then a statement of lack of explanation is drawn up signed by at least two witnesses.

In addition, since dismissal in this case is used as a disciplinary measure, it is necessary to comply with the procedure provided for in Art. 193 of the Labor Code of the Russian Federation. Namely, before applying a disciplinary sanction, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

At the same time, the employee’s failure to provide an explanation is not an obstacle to applying disciplinary action.

In the explanatory note, the employee must state the reasons for absence from work. The employer analyzes these reasons and determines whether they are valid or disrespectful.

If the reasons are not valid, then it is necessary to draw up an order to impose a penalty in the form of dismissal for absenteeism. There is no unified form for such an order, so it is drawn up in any form.

The order to impose a penalty in the form of dismissal of the employee must be familiarized with signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order against signature, then a corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation).

Dismissal for showing up to work while drunk

Appearing at work in a state of intoxication is also considered a gross violation of labor discipline:

• alcoholic;
• narcotic;
• other toxic.

It does not matter whether the employee appeared drunk at his workplace or on the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a job function.

In addition, as stated in paragraph 42 of the Resolution of the Supreme Court of the Russian Federation of March 17, 2004 No. 2, it does not matter whether the employee was suspended from work due to such a condition.

The state of alcohol, drug or other toxic intoxication must be documented. This is usually a medical report.

Dismissal for this violation of labor discipline is a disciplinary measure. This means that in order to apply a penalty on the basis of Art. 193 of the Labor Code of the Russian Federation, the employee should be required to provide a written explanation. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Then an order is drawn up (in any form) to impose a penalty in the form of dismissal for appearing at work while intoxicated. The employee is familiarized with the order against signature within three working days from the date of its publication. If the employee refuses to familiarize himself with the specified order against signature, then a corresponding act is drawn up.

Dismissal for disclosing secrets

Disclosure of a secret protected by law is another gross violation of labor duties. At the same time, secrets protected by law include:

• trade secret. A trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits. Information constituting a trade secret (production secret) is information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities. It is important that this information has actual or potential commercial value due to its unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime. Such definitions are given in Art. 3 of the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets”;
• state secret. That is, information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational intelligence activities, the dissemination of which could harm the security of Russia. This is stated in Art. 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”;
• other secrets protected by law (for example, official, banking, tax, etc.).

When dismissing an employee for disclosing a secret, it is first of all important that there is evidence that the employee has access to information that constitutes a secret protected by law. Such permission must be issued in the form of a written document that reflects information for the disclosure of which the employee may be subject to disciplinary liability in the form of dismissal.

In addition, paragraph 43 of the Resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that when terminating an employment contract on this basis, the employer must also provide evidence that:

• the disclosed information actually constitutes a secret protected by law;
• the disclosed information became known to the employee in connection with the performance of his job duties, and he undertook not to disclose it.

A disciplinary sanction in the form of dismissal for this violation is imposed in accordance with the general procedure described in Art. 193 of the Labor Code of the Russian Federation. It is formalized by an order to apply a disciplinary sanction in the form of dismissal, drawn up in any form. The employee should be familiarized with it against signature or a corresponding act should be drawn up in the presence of at least two witnesses about the refusal to sign for familiarization.

Dismissal for theft

An employment contract with an employee can be terminated if theft (including minor) of someone else’s property, embezzlement, or intentional destruction or damage occurs at the place of work. In this case, the established fact of theft must be confirmed by a court verdict that has entered into legal force or by a decision of a judge, body, or official authorized to consider cases of administrative offenses.

Thus, for dismissal on this basis, the fact who owned the property in question has no legal significance. It may be owned by the employer, owned by employees or other persons. It is only important to prove the fact that the theft was committed at the place of work. It is also necessary to have a court verdict or resolution of a judge, body, or official authorized to consider cases of administrative offenses that have entered into legal force.

As stated in Art. 193 of the Labor Code of the Russian Federation, disciplinary action is applied no later than one month from the date of discovery of the misconduct. However, in this case, the monthly period begins to be calculated from the moment when the court verdict or resolution of the judge, body, official authorized to consider cases of administrative offenses came into force. This is stated in paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

To apply an extreme sanction in the form of dismissal, a corresponding order is issued as a general procedure, with which the employee is familiarized with signature.

Dismissal for violation of labor protection requirements

Another basis for applying a disciplinary sanction in the form of dismissal is a violation of labor protection requirements. In this case, two conditions must be met:

• the violation was established by the labor protection commission or the labor protection commissioner;
• the violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences.

When considering a dispute in court, the employer must prove that these consequences were the result of the employee’s violation of labor protection requirements. If there were no such consequences, but there was obviously a real threat of their occurrence, then the fact that these consequences could have occurred precisely because of the employee’s violation of labor protection requirements must also be proven by the employer.

note! Labor protection rules are established by Art. Art. 219 - 231 of the Labor Code of the Russian Federation, as well as other regulatory legal acts, including instructions on labor protection. The Labor Safety Commission is created in the organization in the manner prescribed by Art. 218 of the Labor Code of the Russian Federation.

To apply an extreme sanction in the form of dismissal, in this case, in general order, an appropriate order is issued, with which the employee is familiarized with signature.

Registration of dismissal and payments to employees in case of a single gross violation of labor duties In Art. 193 of the Labor Code of the Russian Federation states that the employer is obliged to formalize the imposition of a penalty, including in the form of dismissal, by issuing an order. In turn, in Art. 84.1 of the Labor Code of the Russian Federation states that termination of an employment contract is formalized by a dismissal order. There are no provisions in the legislation indicating that these two orders can be combined into one or replaced with each other. Therefore, two separate above orders should be drawn up. Letter of Rostrud dated June 1, 2011 N 1493-6-1 confirmed that in this situation the issuance of two orders is not a violation of labor legislation.

Thus, registration of termination of an employment contract is carried out in accordance with the general procedure. Namely, in the dismissal order in Form N T-8, in the column “grounds (document, number, date)” of the dismissal order, the details of the order to apply a disciplinary sanction in the form of dismissal are indicated. In the column “grounds for termination (termination) of the employment contract (dismissal)” indicate one of the following grounds:

1. in connection with a one-time gross violation by an employee of work duties (absenteeism) on the grounds of paragraphs. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
2. in connection with a one-time gross violation of labor duties by an employee - appearing at work in a state of alcohol, drug or toxic intoxication (in this case, it is necessary to indicate specifically in what state the employee was noticed) on the basis of paragraphs. "b" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
3. in connection with a one-time gross violation of labor duties by an employee - disclosure by an employee of a secret protected by law (state, commercial, official, other, should be specified specifically), which became known to the employee in connection with the performance of his labor duties, or personal data of another employee on the basis of paragraphs. "c" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
4. in connection with a one-time gross violation of labor duties by an employee - theft, embezzlement, destruction or damage to property at the place of work (it is indicated specifically what violation took place) on the basis of paragraphs. "g" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
5. in connection with a one-time gross violation of labor duties by an employee - violation by an employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of their occurrence, on the basis of paragraphs. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation.

The date of termination of the employment contract specified in the order and work book will be the employee’s last day of work.

One of the similar entries is entered into the employee’s work book and the employee’s personal card in Form N T-2.

It should be remembered that based on the provisions of Art. 81 of the Labor Code of the Russian Federation, termination of a contract on this basis is impossible during the period of temporary incapacity for work and while the employee is on vacation.

On the day of termination of the employment contract, the employer is obliged to pay the employee wages, as well as pay compensation for unused vacation days (if any). If the employee did not work on that day, then the corresponding amounts are paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts of these amounts, the employer is obliged to pay the amount not disputed by the employee. This procedure follows from the provisions of Art. 140 of the Labor Code of the Russian Federation.