Dismissal under article 81 part 5. The procedure for terminating an employment contract with an employee under paragraph 5 of article 81 of the Labor Code of the Russian Federation (repeated failure to fulfill labor duties). How penalties are imposed

Paragraph 5 of Art. 81 of the Labor Code provides for the possibility of dismissal of an employee for repeated failure to perform labor duties without good reason, if he has a disciplinary sanction. Dismissal requires the presence of a combination of several conditions:

1) non-fulfillment of labor duties must be repeated (at least repeated within a year, counting from the previous violation). For the first, even gross, violation on this basis, it is impossible to dismiss;

2) dismissal is possible only for violation or failure to fulfill precisely labor duties, i.e. duties assigned to the employee by law or an employment contract (violation of internal labor regulations, job descriptions, orders of the head, technical rules and instructions, etc.).

Such violations include, in particular:

Being late for work or leaving work prematurely, being outside your workplace without good reason;

Cancellation without good reason temporary transfer to another job, when the transfer does not require the consent of the employee;

Refusal or evasion without good reason from passing medical examination(mandatory for certain categories of workers), refusal to pass work time training in safety and labor protection rules;

Failure to comply with the lawful orders and orders of the employer;

Refusal to perform work that is part of the employee's labor duties.

Refusal to perform work that is not part of the employee's responsibilities cannot be considered violations of labor discipline; refusal to comply with illegal orders of the employer. Failure to perform or improper performance of labor duties may cause dismissal if it is allowed without a good reason. It is impossible, for example, to dismiss an employee if he refused to be transferred under emergency circumstances to work that he cannot perform for health reasons, or from transfer to work related to material liability, motivating his refusal by the lack of necessary knowledge or experience with values;

3) non-fulfillment of labor duties must take place through the fault of the employee, i.e., it must be allowed intentionally or through negligence (negligence). Intent assumes that the employee knew that he allowed a violation of discipline or improper performance of work duties, but was indifferent to this. Negligence (negligence) suggests that the employee did not know that he was committing a violation, but should have known it. Violations committed through negligence (negligence) professional duties caused, for example, by ignorance of the law, instructions, rules, technological processes that the employee as a professional should have known. Violations of the rules of labor protection, safety, fire safety are qualified as committed guilty if the employee was familiarized with them by the employer in advance.

If the employee is not guilty of the violation, the termination of the employment contract on the grounds under consideration cannot follow. Therefore, the employer must always establish the circumstances of the violation and give it a correct legal assessment; at the same time, it is imperative to require a written explanation of the employee about the causes and circumstances of the violation;

4) dismissal under paragraph 5 of Art. 81 of the Labor Code must be preceded by the application for a previously committed misconduct of a disciplinary sanction under Art. 192 of the Labor Code, imposed in accordance with the law. okay. A disciplinary sanction has legal effect within a year from the date of its imposition; invalidated penalties are not taken into account.

Dismissal on this basis is a measure of disciplinary action (Article 192 of the Labor Code), therefore it must be carried out in the manner and within the time limits established for the imposition of disciplinary sanctions (Article 193 of the Labor Code). In this case, the severity of the misconduct committed, the circumstances of its commission, the personality of the employee and other factors should be taken into account, since dismissal should be used as an extreme measure of influence on the employee. To protect employees from illegal dismissals, termination of an employment contract with a trade union member on this basis requires taking into account the motivated opinion of the elected trade union body.

82. Dismissal under paragraphs. and paragraph 6 of Art. 81 of the Labor Code of the Russian Federation as a measure of disciplinary action.

Dismissal for a single absenteeism is allowed by law, since absenteeism is a serious violation of labor discipline, disorganizing the activities of any work collective. It is regulated by s. "a" paragraph 6 of Art. 81 TK.

Subparagraph “a” of paragraph 6 of Art. 81 of the Labor Code allows termination of an employment contract with an employee due to absenteeism, i.e. absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more 4 consecutive hours during the working day (shift).

Walking is recognized:

¦ the absence of an employee without good reason at his workplace during the whole working day or shift, even if he was on the territory of the organization in other industrial premises or divisions. Performance of labor duties outside the workplace or stay in another division of the organization in connection with the performance of labor duties or for other valid reasons cannot be qualified as absenteeism;

¦ the absence of an employee without good reason at the workplace for more than 4 hours in a row during the working day; the summation of periods of absence from the workplace during the working day is not allowed.

Absenteeism, which may lead to termination of the employment contract, are also:

¦ absenteeism without good reason for work to which the employee was transferred in accordance with the law;

¦ leaving work by an employee without a written warning of the employer about dismissal or before the expiration of the warning period, if the employer has not given consent to this.

Does not qualify as absenteeism:

¦ refusal to transfer to another job and absenteeism to a new one workplace if the transfer was made by the employer in violation of the law; absence from work due to illness, even if the employee does not have a sick leave, but the fact of illness is confirmed by other evidence, for example, the testimony of witnesses, a certificate from the ambulance station, etc.;

¦ absence from work for other valid reasons (due to illness of the child, another family member and other family circumstances). In the latter cases, the employee himself must prove the validity of the reason for the absence from work. However, if necessary, the employer is obliged to assist the employee in this, for example, request the relevant documents, interview witnesses, etc.

In accordance with the new labor legislation, it cannot be considered absenteeism when an employee stops working for reasons permitted by law, for example, due to delay in payment wages, as well as the presence of a threat to life and health due to a violation by the employer of labor protection rules. Moreover, in accordance with Art. 4 of the Labor Code, violation of the established deadlines for the payment of wages or payment of it not in full, as well as work without providing means of protection or that threatens the life or health of the employee, are qualified as forced labor. And such labor is prohibited in Russia.

Dismissal for absenteeism is recognized as a measure of disciplinary action, therefore it requires compliance with the procedure for imposing disciplinary sanctions (Article 193 of the Labor Code).

83. Dismissal under paragraphs. b paragraph 6 of Art. 81 of the Labor Code of the Russian Federation as a measure of disciplinary action.

Subparagraph "b" of paragraph 6 of Art. 81 of the Labor Code provides for the possibility of terminating an employment contract if an employee appears at work (at his workplace or on the territory of an employer organization or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication.

Dismissal is also allowed with a single appearance of an employee at work in such a state. It does not matter when the employee appeared in a state of intoxication: at the beginning, in the middle or at the end of the working day. An employee who appears in such a state, the employer is obliged to remove from work (not allow him to work) on that day (shift) (Article 76 of the Labor Code). However, for dismissal, it does not matter whether the employee was suspended from work or not.

Dismissal is possible if the employee was in a state of intoxication during working hours at the place of performance of his labor duties or not at his workplace, but on the territory of the organization or at the facility where he was supposed to perform labor duties. The drunken state of an employee, narcotic or toxic intoxication can be confirmed both by a medical report and other types of evidence (witness testimony, explanations of the immediate supervisor, an act of suspension from work, etc.).

Dismissal on this basis is a disciplinary sanction, therefore, it requires compliance with the procedure for imposing disciplinary sanctions (Article 193 of the Labor Code).

84. Dismissal under paragraphs. c, d, e points 6 art. 81 of the Labor Code of the Russian Federation.

Subparagraph "c" p. Son. 81 of the Labor Code provides for the possibility of terminating an employment contract due to the disclosure of a legally protected secret" (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee.

Dismissal on this basis is allowed for a single violation.

The Law “On State Secrets” dated July 21, 1993 No. 5485-1 provides the concept of state secrets as information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the dissemination of which may harm the security of the Russian Federations. It lists in detail the information that in the above areas of activity can be classified as state secrets (Article 5).

In Art. 7 of the Law defines information that is not subject to classification, the disclosure of which is not an offense and cannot lead to termination of the employment contract.

The employee's access to state secrets and the mutual obligations of the employee and the employer are fixed in the employment contract, i.e. are mandatory conditions. Consequently, for the disclosure of information constituting a state secret, an employment contract may be terminated only with employees who, in accordance with the procedure established by law, are admitted to state secrets.

In the Law "On Commercial Secrets" dated June 29, 2004 No. 98-FZ, a trade secret is understood as confidential information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market of goods, works, services or receive other commercial benefit. Based on this, the Law classifies scientific, technical, technological, production, financial, economic or other information (including production secrets) that has commercial value, to which there is no free access on a legal basis, and in respect of which its owner established trade secrets.

The Law defines information that cannot be trade secret. The Law also establishes the procedure for admitting employees to trade secrets.

The right to determine the list and composition of such information belongs to its owner.

An official secret includes information owned by officials and other employees by virtue of their official (official) position. Information constituting an official secret must be determined by the employer, taking into account the interests of the organization and the requirements of the law. Information related to scientific developments, the introduction of new technologies, inventions, discoveries, etc. can be classified as an official secret. The law requires the preservation of medical, banking secrecy, secrecy of the investigation, etc.

The protection of personal data of employees is regulated by Art. 85-90 of the Labor Code and the Federal Law of July 27, 2006 N ° 152-FZ "On Personal Data".

Employee's personal data - information required by the employer in connection with labor relations and relating to a particular employee. An employee's personal data refers to confidential information that can only be obtained from the employee himself. If it is necessary to obtain information about the employee from third parties, the employee must be notified of this in advance and written consent must be obtained from him.

Persons admitted by virtue of their official position to the personal data of employees are not entitled to distribute (disclose) them without the consent of the employee or other legal grounds.

Employment contracts with employees who have access to information constituting a commercial or official secret, as well as those who have access to employees' personal data, should include a non-disclosure clause (Article 57 of the Labor Code). Each such employee must be familiarized in detail with the list of information constituting a commercial or official secret, and the legal regime of personal data of employees.

The basis for termination of the employment contract is the disclosure of relevant information, as a result of which they become known to third parties. The fact of disclosure of information by a particular employee must be proven by the employer.

Dismissal is possible only if the employee is guilty in the committed act in the form of intent or negligence (negligence). If the employee did not know and could not know that the information constitutes a secret protected by law, was not acquainted with the list of information constituting a secret when concluding an employment contract, was not warned about non-disclosure of the relevant information, the employee is not at fault and his dismissal cannot follow.

There may be cases when the employer has not created the necessary conditions for the employee to ensure the reliable protection of documents and other materials containing information not subject to disclosure. In such cases, the employer also has no reason to dismiss the employee.

Subparagraph "g" of paragraph 6 of Art. 81 of the Labor Code provides for the possibility of terminating an employment contract in the event that an employee at the place of work commits theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses.

The grounds for dismissal may be the theft of property belonging to both the employer and other persons (employees, visitors to the organization, the population served, etc.).

Any theft, as well as deliberate destruction or deliberate damage to someone else's property, entails at least administrative liability in accordance with the Code of Administrative Offenses of the Russian Federation. It comes for the deliberate destruction or damage of someone else's property, if it did not cause significant damage, as well as for petty theft of someone else's property by theft, fraud, misappropriation or embezzlement. In other cases, theft, as well as the destruction or damage to someone else's property, entails criminal liability in accordance with Art. 158-168 of the Criminal Code of the Russian Federation.

In this regard, the commission by the employee of these actions requires the mandatory transfer of material to law enforcement agencies to resolve the issue of bringing the perpetrator to administrative or criminal liability.

Dismissal can be made only after the fact of theft, deliberate destruction or damage to property is certified by a court conviction that has entered into legal force (when a criminal case is initiated) or by a decision of the competent authority to impose an administrative penalty on the guilty person (if the violation was qualified as an administrative offense) . The dismissal of an employee without observing the specified procedure is illegal.

The dismissal must be made within the time limits established for the imposition of disciplinary sanctions (Article 193 of the Labor Code). However, in this case, the one-month period for applying such a disciplinary sanction is calculated from the date of entry into force of a court verdict or a decision of an authorized body on the application of an administrative penalty (paragraph 44 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. Russian Federation of the Labor Code of the Russian Federation "

QUESTION 35 Dismissal of employees for violation of labor protection rules

The dismissal of workers for violation of labor protection rules is associated with the creation of a real threat to the life and health of workers and the violation of their constitutional right to work in conditions of safety and hygiene (Article 37 of the Constitution of the Russian Federation).

Subparagraph "e" of paragraph 6 of Art. 81TC provides for the possibility of terminating an employment contract with an employee for violating labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat occurrence of such consequences.

Since compliance with labor protection requirements in the course of work is the legal obligation of each employee (Article 21 of the Labor Code), any employee can be dismissed on this basis. However, dismissal is possible only for a specific guilty misconduct of the employee, which led to serious consequences or created a real threat of their occurrence. In addition to proving the fact of a misconduct, the employee’s guilt (intentional or negligent), it is necessary to establish a causal relationship between the misconduct and the consequences that have occurred or could have occurred.

Therefore, dismissal on this basis should always be preceded by consideration of all the circumstances of the misconduct committed with the preparation of a written opinion of competent persons. If an accident occurs, it is necessary to investigate the causes in accordance with the requirements of Art. 227-230 TK. Otherwise, unjustified dismissals of employees are not ruled out, and sometimes cases of shifting responsibility to the employee for omissions in the field of labor protection made by officials or other employees.

Dismissal is a measure of disciplinary action and requires compliance with the established Art. 193 of the Labor Code of the procedure for imposing disciplinary sanctions

85. Dismissal of an employee under paragraphs 7, 8, 9, 10 of Art. 81 of the Labor Code of the Russian Federation.

The dismissal of employees for the loss of confidence in them on the part of the employer is regulated by paragraph 7 of Art. 81 TK.

The loss of confidence is the basis for the dismissal of a limited circle of people - only employees serving monetary or commodity values. Commodity values ​​should not be identified with material values, the concept of which is much broader. Commodity values ​​are a kind of material; these are values ​​intended for wholesale or retail sale, i.e., mainly consumer goods designed to satisfy the material needs of citizens.

The subjects of dismissal on this basis are employees directly related to the movement Money and goods. These include: sellers, cashiers, collectors, taxi drivers and other employees directly serving the specified values. This ground for dismissal does not apply to other categories of employees (accountants, economists, auditors, etc.).

Employees directly involved in the reception, storage, transportation, distribution, sale, processing of commodity and monetary values ​​may be dismissed on this basis, regardless of whether an agreement has been concluded with them on liability or not.

Dismissal for loss of trust is possible if:

¦ a guilty offense was committed related to the maintenance of monetary or commodity values;

¦ misconduct caused or could cause adverse consequences (lack of valuables, theft, deception of consumers, etc.);

¦ by its nature, this misconduct indicates the impossibility of further trusting the employee of value. As a rule, they mean misconduct that indicates a person’s dishonesty or a careless attitude to values.

The reason for dismissal may be negligent storage of funds or violation of the rules of conduct cash transactions cashier, fraud of the buyer by the seller, falsification of goods, etc.

The misconduct must be committed through the fault of the employee, i.e. intentionally or negligently. Lack of guilt excludes the possibility of dismissal.

Termination of an employment contract is possible not only when the guilty offense has already entailed adverse consequences, but also when it could have entailed them. For example, negligent storage of cash by a cashier gives grounds to dismiss him for loss of confidence, regardless of whether there was a shortage (theft) or not.

Dismissal does not require a system of violations and is possible for the first offense.

When establishing the fact of theft, bribery and other mercenary offenses, employees serving monetary or commodity values ​​\u200b\u200bmay be dismissed for loss of confidence even if these actions are not related to their work (paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation "On the application courts Russian Federation of the Labor Code of the Russian Federation” dated March 17, 2004 No. 2).

If the misconduct is committed at the place of work or in connection with the performance of labor duties, dismissal is qualified as a disciplinary sanction and requires compliance with the procedure for imposing disciplinary sanctions (Article 193 of the Labor Code) (see paragraph 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004) . If it is committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, dismissal is not allowed later than one year from the date of discovery by the employer (part V of article 81 of the Labor Code).

The law allows for the possibility of terminating an employment contract for the commission by an employee performing educational functions of an immoral offense that is incompatible with the continuation of this work (clause 8, article 81 of the Labor Code).

On this basis, only employees for whom educational activities are the main content of labor can be dismissed: school teachers, teachers of all types educational institutions, masters industrial training at enterprises, educators of children's institutions and other employees engaged in the performance of educational functions.

It is impossible to broadly interpret the specified circle of workers.

The dismissal of an employee is possible regardless of where the immoral offense was committed: at work, at home, in a public place. This is one of the rare cases in labor law when an employment contract can be terminated for a misconduct not related to labor duties. But this is understandable and correct, since a person involved in educating people must have not only a formal (the availability of appropriate professional training), but also a moral right to do so.

As follows from the text of paragraph 8 of Art. 81 of the Labor Code, not every immoral offense can cause dismissal, but only one that is not compatible with educational functions, that is, the offense must be serious and exclude the possibility of continuing work.

The commission of an immoral offense must be proven. You can't fire an employee based on overall assessment his behavior, as well as on the basis of unverified data, rumors and other insufficiently confirmed information. At the same time, it is necessary to take into account the time that has elapsed since the commission of an immoral offense, take into account the personality of the employee, his subsequent behavior and other specific circumstances.

Upon termination of the employment contract under paragraph 8 of Art. 81 of the Labor Code, it should be borne in mind that if the misconduct is committed at the place of work or in connection with the performance of labor duties, dismissal qualifies as a disciplinary sanction and requires compliance with the procedure for imposing disciplinary sanctions (Article 193 of the Labor Code) - clause 47 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 If the offense was committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, dismissal is not allowed later than one year from the date of discovery by the employer (part V of article 81 of the Labor Code).

QUESTION 38 Dismissing employees for making an unreasonable decision

Dismissal for making an unreasonable decision applies only to a limited circle of people: heads of organizations (branches, representative offices), their deputies and chief accountants, if this decision entailed a violation of the safety of property, improper use or other damage to the property of the organization (clause 9 of article 81 of the Labor Code ). The system of violations is not required here, dismissal is possible for the first violation.

The practical application of this ground for termination of an employment contract requires a serious analysis of the situation and a thorough check of all the circumstances of the decision. Since the assessment of the decision by the employee who made it and the employer can be directly opposite, the main thing on which the dismissal should be based is the consequences of the decision, namely the infliction of property damage to the organization. In all cases, a direct causal relationship should be established between the decision made and the adverse property consequences for the organization.

The fault of the employee who made a decision recognized as unreasonable, in the form of intent or negligence (negligence) must also be established. It is possible that the decision was made in an extreme situation, which could lead to even more adverse property consequences for the organization, or under circumstances that preclude the adoption of a different decision, etc. In some cases, erroneous decisions are made due to unprofessionalism, insufficient knowledge, weak professional training of workers, which indicates the presence of guilt. If an unreasonable decision was made due to insufficient experience of the employee with a conscientious attitude to the performance of labor duties, one should refrain from terminating the employment contract.

Additional grounds for terminating employment contracts with executive employees of organizations are established by labor legislation.

1. Paragraph 10 of Art. 81 of the Labor Code provides for the possibility of terminating an employment contract with the head of an organization (branch, representative office) and his deputies for a single gross violation of labor duties. Since these are responsible employees of the organization, they are subject to increased requirements. They can be fired, in addition to general. grounds established for all employees for a single, but gross violation of labor duties. The law does not clarify what exactly is considered a gross violation; this issue will be decided on a case-by-case basis. Dismissal is possible for gross violations of labor legislation, gross violations in the field of financial and economic activity organizations, abuse official position and other similar violations.

Labor legislation gives the employer the right to dismiss an employee for violating labor discipline, in particular, paragraph 5 of Article 81 of the Labor Code of the Russian Federation speaks about this. The basis for termination of the contract, according to this paragraph, is the failure by the employee of his duties, committed repeatedly.

Features of the application of clause 5 of article 81 of the Labor Code of the Russian Federation

Termination of labor relations at the initiative of the employer is allowed in case of liquidation of the enterprise or reduction of jobs, as well as due to the guilty actions of employees. Dismissal at the request of the employer in connection with the established violation of labor discipline is considered as a measure of disciplinary action.

The Labor Code establishes the following types of penalties:

• rebuke;
• comment;
• dismissal.

Based on the meaning of paragraph 5 of Article 81 of the Labor Code of the Russian Federation, an employer can apply dismissal only if a person has repeatedly committed an offense in the form of failure to fulfill his duties. Under the repeated violation in this case, it should be understood that the employee has already been disciplined for such an action in the form of a reprimand or remark. The mere fact of misconduct is not grounds for dismissal, prerequisite is that the employee has a penalty.

The Labor Code does not provide a detailed description of the termination of the contract on this basis. However, based on the meaning of Article 194 of the Labor Code of the Russian Federation, an employee is considered to be subject to disciplinary action within a year from the date of its application.

Thus, committing a misdemeanor repeatedly, but after a year from the date of imposition of the first disciplinary punishment in the form of a remark or reprimand, cannot be a reason for terminating the employment relationship at the request of the employer.

The procedure for imposing a disciplinary sanction

In order to hold an employee liable for failure to comply with their official duties, it is necessary to establish the fact of violation. When hiring, the manager is obliged to familiarize the employee not only with the Internal Regulations against signature, but also with his duties, which can be set out in the form of a job description or other document that regulates the performance of certain functions assigned to the employee. If this condition is not met by the employer, then the dismissed person will be reinstated at work by a court decision.

Important! It is unacceptable to apply two measures of disciplinary liability for the same violation. In addition, when transferring to another position, the offense will not be considered a repeated offense if the first was committed while in office before the transfer.

Paragraph 5 of Article 81 of the Labor Code of the Russian Federation indicates another feature of failure to fulfill obligations - without good reason. Therefore, the employer, before making a decision to punish an employee, needs to establish the reason why he did not perform his functions.

Assessing the validity of reasons is the prerogative of the manager, so he should carefully consider the establishment of reasons. Since, if the court finds that the failure to fulfill duties was justified, then the employee will be reinstated at work.

An employee cannot be held liable for failure to fulfill his duties if it is proved that he violated the job description due to the following circumstances:

1. The state of health did not allow performing the functions assigned to the specialist.
2. The violation was committed in order to prevent the possibility of causing loss, damage, the occurrence of an accident or a threat to life and health of people.

Upon the fact of non-fulfillment by the employee of the functions assigned to him, a document (act) must be drawn up, which contains exhaustive evidence of the guilt of his actions. It is necessary to familiarize him with this document and demand a written explanation. If he refuses to give explanations, then this must be reflected in the relevant act, which is signed by at least 3 people present at the refusal.

Important! The employer has the right to impose a disciplinary sanction within one month from the day the violation was found. After this period, the employer loses the right to dismiss on this basis.

On the basis of documents on the employee's failure to perform the functions assigned to him, including his explanatory note, the employer issues an order. The dismissed person must be familiar with it. The order must indicate the reason for dismissal and the date from which the employment relationship is terminated.

Despite the misconduct of the dismissed person, the employer must transfer the work book to him under signature and make a full payment on the last day of work. Termination of the contract through the fault of the dismissed person does not relieve the employer of responsibility for violating the rules for dismissal, and the employer will be liable for the delay in issuing documents and calculating.

ST 81 of the Labor Code of the Russian Federation.

The employment contract may be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) reduction in the number or staff of employees of the organization, individual entrepreneur;

3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

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

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to submit or submit incomplete or false information about their incomes, expenses, about property and liabilities of a property nature or failure to provide or submission of deliberately incomplete or false information about incomes, expenses, property and obligations of a property nature of their spouse (wife) and minor children, opening (presence) of accounts (deposits), storage of cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse (wife) and minor children in cases provided for by this Code, other federal laws, regulatory legal acts 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 term "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 Maintaining Accounts (Deposits), Keeping Cash and Valuables in Foreign Banks Located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments";

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents when concluding an employment contract;

12) has become invalid;

13) provided for by the employment contract with the head of the organization, members of the collegial executive body organizations;

14) in other cases established by this Code and other federal laws.

The procedure for conducting attestation (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided collective agreement agreements, employment contracts.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of 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 by Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption".

Commentary on Art. 81 of the Labor Code of the Russian Federation

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

As grounds for the dismissal of an employee at the initiative of the employer, the legislator formulates three groups of reasons: 1) the guilty actions of the employee; 2) reasons related to the personality of the employee, but not the result of his guilty actions; 3) circumstances that do not depend on the personality 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 due to his 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 employees of certain categories (for example, heads of organizations, persons whose labor activity is related to the maintenance of monetary or commodity values). General grounds for termination of an employment contract at the initiative of the employer are formulated in the commented article 81 of the Labor Code of the Russian Federation, additional (special) - partly in the commented article, partly - in the articles of the Labor Code of the Russian Federation regulating the legal status of certain categories of workers and employers, as well as in other federal laws.

The presence of grounds for dismissal as a general rule 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 the specified 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 the transfer to another job is not possible or the employee refuses to transfer.

2. Among the grounds for dismissal of an employee at the initiative of the employer, paragraph 1 of the commented article calls the liquidation of an organization or the termination of activities by an individual entrepreneur.

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

As for the termination of the activities of the 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 in which this concept is interpreted by the Labor Code of the Russian Federation (see). The death of an employer - an individual is an independent basis for the termination of an employment contract ().

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 to carry out state registration (licensing) of their activities in one form or another. For example, subject to state registration entrepreneurial activity citizen as an individual entrepreneur or head farming(Article 23 of the Civil Code of the Russian Federation); a special procedure is provided for by the legislation for acquiring the status of a lawyer (see Federal Law of May 31, 2002 N 63-FZ "On Advocacy and the Bar in the Russian Federation"); on the basis of a license issued in accordance with the established procedure, the activities of notaries are carried out (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11, 1998 N 4462-1). Accordingly, the termination (or suspension) of the activities of such employers can serve as an independent basis for the termination of an employment contract with employees in accordance with paragraph 1 of the commented article.

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under paragraph 1 of the commented article, in particular, when the activity of the employer - an individual is terminated on the basis of his own decision, as a result of declaring him insolvent (bankrupt ) by a court decision (clause 1, 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 (paragraph 3, clause 28 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 . N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").

3. Reducing the number or staff of employees of an organization, an individual entrepreneur as a basis for terminating an employment contract is provided for in paragraph 2 of the commented article.

The number of employees is determined according to the technological processes and needs used by the employer Maintenance his activities. The staff is a combination of managerial and administrative positions at various levels, as well as specialists. The staff is determined, as a rule, by the head through the publication of the staffing table.

When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership ().

When dismissing due to redundancy, it is necessary to take into account the preemptive right of certain categories of workers to remain at work (see). At the same time, since, by virtue of part 4 of the commented article, 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 divisions is carried out according to the rules provided for in cases of liquidation of an organization, the rule of art. 179 of the Labor Code of the Russian Federation does not apply.

4. By virtue of clause 3 of the commented article 81 of the Labor Code of the Russian Federation, the inconsistency of the employee with the position held or the work performed may be the result of insufficient qualifications. The insufficient level of qualification of the employee must be confirmed by the results of certification.

The certification procedure implies compliance with the following rules: a) availability regulatory framework(the relevant regulatory legal act of the state or local government and (or) local regulatory act on attestation); b) implementation of the certification procedure by a commission established in the manner established by the relevant act; c) the universal nature of certification (certification is subject not to individual, but to all (with exceptions determined in the normative manner) employees of a certain category); d) frequency in carrying out 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 attestation commission that the employee, in terms of his 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.

Judicial practice proceeds from 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 the short length of service, as well as on the grounds of the lack of special education, if it is not a mandatory condition by virtue of law when concluding an employment contract.

5. The basis for dismissal at the initiative of the employer is the repeated failure by the employee to fulfill his labor duties without good reason (paragraph 5 of the commented article).

Violation of labor discipline is the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

a) the absence of an employee without good reason at work or workplace. At the same time, it must be borne in mind that if the specific workplace of this employee is not specified in the employment contract concluded with the employee, or the local regulatory act of the employer (order, schedule, etc.), then in the event of a dispute over the issue of where the employee is obliged to be in the performance of his labor 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) the employee’s refusal to perform labor duties without good reason due to a change in the established procedure for labor standards (see also the commentary to it), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the internal rules in force in the organization work schedule (see). At the same time, the 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 terminating the employment contract in compliance with the procedure provided for;

c) refusal or evasion without valid reasons from medical examination of employees of certain professions, as well as refusal of an employee to pass during working hours special education and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work (clause 35 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

When resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (), in the case when it was not concluded simultaneously with the employment contract, clause 36 of the said Resolution The Plenum of the RF Armed Forces proposes to proceed from the following.

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

If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that, due to a change in the current legislation, the position held by him 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 liability, however, the employee refuses to conclude such an agreement, the employer is obliged by force to offer him another job, and in its absence or the employee refuses the offered job, the employment contract is terminated with him in accordance with.

The refusal of an employee (regardless of the reason) to comply with the employer's order to return to work before the end of the vacation cannot be considered a violation of labor discipline (paragraph 37 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Dismissal for repeated non-performance by an employee of labor duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated non-performance by the employee without good reason of labor duties was not removed and not repaid (paragraph 1, clause 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 .N 2). The list of disciplinary sanctions is established by law (see to it).

Within the meaning of the term "repeated" (i.e. more than one) non-fulfillment of labor duties may also occur in the event of repeated non-fulfillment by the employee without good reason of the duties assigned to him. 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 him from the employee ahead of schedule (see to it), the employer’s right to terminate the employment contract arises if the employee again violated labor discipline within 12 months after the application of a disciplinary sanction to him. At the same time, recognizing non-performance of labor duties as "repeated", one should take into account not only the repetition of the violation, but the nature and severity of the misconduct itself, the previous behavior of the employee and other circumstances.

If an employee repeatedly violated labor discipline, but no disciplinary sanction was applied to him, then he cannot be dismissed under paragraph 5 of the commented article.

Violation of labor discipline is recognized as repeated if, despite the penalty, the unlawful misconduct of the employee continues. In this case, it is allowed to apply a new penalty to him, including dismissal under paragraph 5 of the commented article (paragraph 2, paragraph 33 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

The employer has the right to apply a disciplinary sanction to the employee even when the latter, prior to the commission of the misconduct, filed an application for termination of the employment contract on his own initiative, since the employment agreement in this case is terminated only after the notice period for dismissal expires (paragraph 3, clause 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

An employee submitting a letter of resignation own will after the commission of an act that gives the employer grounds for applying a disciplinary sanction to him, including dismissal, cannot be considered forced (see to it).

Actions of an employee that are not related to his job duties should not be considered as a disciplinary offense. It is impossible to dismiss an employee under paragraph 5 of the commented article, for example, for misbehavior in everyday life. Termination of an employment contract on this basis is specified in the norms of the Labor Code of the Russian Federation, which regulate the legal status teaching staff(cm. ).

6. A single gross violation of labor duties by an employee (clause 6 of the commented article) is a reason sufficient to terminate an employment contract with an employee, regardless of whether he had previously received disciplinary sanctions.

Gross violations are:

1) absenteeism (subparagraph "a", paragraph 6 of the commented article). Absenteeism means absence from the workplace without a good reason throughout the working day (shift). Absence of an employee at the workplace without good reason for more than four hours in a row during a working day (shift) is equated to absenteeism. The workplace in this case means not only the workplace assigned to the employee, but also the one at which the employee was obliged to be by virtue of the instructions of the relevant supervisor of the employee (on the concept of the workplace, see Article 209 of the Labor Code of the Russian Federation and commentary to it).

As follows from paragraph 39 of the Decree of the Plenum of the RF Armed Forces of March 17, 2004 N 2, dismissal on the indicated basis, in particular, can be carried out:

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

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

c) for leaving work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week warning period (see Art.);

d) for leaving work without a valid 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 (see art., 80, and commentary thereto);

e) for unauthorized use of days off, as well as for unauthorized leave on vacation (basic, additional). The use of rest days by an employee is not absenteeism if the employer, in violation of the obligation stipulated by law, refused to provide them and the time for the employee to use such days did not depend on the discretion of the employer (for example, refusing to provide an employee who is a donor in accordance with the rest day immediately after each day of donating blood and its components).

When a court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to a refusal to start it, the employer is obliged to provide evidence proving the legality of the transfer (see art., and commentary to them). If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job (paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and on the recovery of average earnings during forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account: average in such cases, the salary of a reinstated employee in such cases may be recovered not from the first day of absence from work, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced (clause 41 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2) ;

2) appearing at work in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b", paragraph 6 of the commented article).

If an employee is dismissed due to the fact that his actions created a real threat of serious consequences, the following must be determined: a) those socially significant interests that were endangered as a result of the employee's illegal actions; b) circumstances that prevented the onset of grave consequences. The latter may be accidental factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.

The employer must establish the guilt of the employee. It is expressed in the fact that the employee: a) was aware or could and should have been aware of the unlawful nature of his actions related to the violation of labor protection requirements; b) 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 serious consequences, he cannot be dismissed on the grounds under consideration, which does not exclude the application of other measures of disciplinary liability for violation of labor protection rules.

In the absence of the employee’s fault, bringing him to responsibility and terminating the employment contract under sub. "e" p. 6 of the commented article is excluded. Particular 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 liability of the employee is excluded, provided that he warned his immediate or superior manager about the possibility of a situation that threatens the rights and interests protected by law (see also the commentary to it).

Since the law connects the actions of an employee with the onset (or the possibility of onset) 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 under consideration, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Code of Administrative Offenses of Russia).

The list of cases that are a gross violation of their duties by an employee is exhaustive and is not subject to broad interpretation (paragraph 38 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). Termination of an employment contract for any of the reasons specified in this paragraph of the commented article is carried out in the manner established for the application of disciplinary sanctions (see to it).

7. The grounds listed in paragraphs 1 - 3, 5 and 6 of the commented article are among the general grounds for termination of an employment contract at the initiative of the employer. Along with them, the commented article contains a list of special grounds (clauses 4, 7 - 13) for the dismissal of workers of certain categories in the presence of special ones arising from the peculiarities legal status these workers, conditions. Most of these grounds assume the presence of guilty actions on the part of the employee.

8. The change of the owner of the property of the organization (clause 4 of the commented article) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.

9. An employee who directly serves monetary or commodity values ​​\u200b\u200bmay be dismissed due to the loss of confidence in him by the employer in case of committing guilty acts (clause 7 of the commented article).

Dismissal on the specified grounds is possible only in relation to employees directly serving monetary or commodity values ​​​​(reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer a reason to lose confidence in him (paragraph 1, clause 45 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2). Such employees, as a general rule, are those who belong to the category of persons bearing full financial responsibility for failure to ensure the safety of the monetary or commodity values ​​entrusted to them on the basis of special laws or special written agreements (see Art. - and commentary to them).

Accountants, accountants, merchandisers, controllers, markers and other employees cannot be dismissed due to loss of confidence, since material values ​​​​are not directly entrusted to them.

The loss of confidence on the part of the employer must be based on objective evidence of the employee's guilt in causing material damage. If the fault of the employee is not established, then he cannot be dismissed for reasons of loss of trust, despite the presence of a shortage, damage to the entrusted values, etc.

When the fact of embezzlement, bribery and other mercenary offenses is established, an employee may be dismissed on the basis of loss of confidence even if these actions are not related to his work (paragraph 2, clause 45 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 ).

Termination of an employment contract due to 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 inaccurate information about his income, expenses, property and obligations of a property nature, or failure to provide or knowingly provide incomplete or inaccurate information about income , expenses, property and property obligations of their spouse and minor children (clause 7.1 of the commented article 81 of the Labor Code of Russia) is a special case of dismissal of an employee due to loss of confidence in him by the employer.

As in the case of termination of an employment contract with an employee due to the loss of confidence in him by the employer, in accordance with the specified paragraph, it is possible to dismiss only those employees who fill positions and perform work specified in the relevant list, approved in accordance with the procedure established by law. The difference between the commented paragraph and paragraph 7 of the commented article lies in the content of those acts that may serve as a basis for the loss of confidence on the part of the employer, and in the subject composition of the persons who committed such acts.

If, as a general rule, the grounds for the loss of confidence on the part of the employer may be the actions of an employee of a mercenary nature, both related and not related to work (measurement, body kit of the buyer or customer, theft, etc.), then in this case, the basis for the loss of confidence actions that in themselves may not be of a mercenary nature (for example, failure to take measures to eliminate a conflict of interest or failure to provide certain information required by law, or the presentation of distorted information) may serve. In addition, this kind of information concerns not only the employee himself, but also his family members.

On the concept of "conflict of interest", measures necessary and sufficient to resolve this conflict; types and content of information about the property status of the employee and members of his family; the circle of such workers, see Art. , and comments on them.

10. The commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of the commented article 81 of the Labor Code of the Russian Federation) is also a special basis for terminating an employment contract.

On this basis, it is allowed to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational organizations, masters of industrial training, educators of children's institutions. Employees who do not perform educational functions (including heads of organizations, structural divisions) are not subject to dismissal on this basis.

A misdemeanor is considered immoral if it contradicts generally accepted norms of morality, and it does not matter whether it is related to the work performed or not (paragraph 46 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). A misdemeanor of this kind should be considered the use of educational measures that are associated with physical or mental violence against the personality of the student (see). The severity of the misconduct must be assessed on a case-by-case basis by the person making the dismissal or by the labor dispute resolution body.

If guilty actions that give rise to loss of confidence, or an immoral offense are committed by an employee at the place of work and in connection with the performance of his labor duties, then such an employee may be dismissed (respectively, under paragraphs 7 or 8 of the commented article) subject to compliance the established procedure for the application of disciplinary sanctions (see article 193 of the Labor Code of the Russian Federation and commentary thereto).

Termination of the employment contract under paragraphs 7 and 8 of the commented article can also be carried out in the case when the guilty actions that give rise to the loss of confidence, or, accordingly, an immoral offense are committed by the employee not at the place of work and not in connection with the performance of his labor duties. Dismissal in this case is not a disciplinary measure, the application of which is due to the deadlines established by the Labor Code of the Russian Federation, since by virtue of Part 1 of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for non-performance or improper performance by the employee through his fault of the labor duties assigned to him.

By virtue of part 5 of the commented article, dismissal in cases where guilty actions that give grounds for loss of confidence, or, accordingly, an immoral offense is committed outside his place of work or not in connection with the performance of his job duties, 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 of the misconduct. The circle of relevant officials of the employer should be determined according to the rules established for fixing the day a disciplinary offense was discovered (see Article 193 of the Labor Code of the Russian Federation and commentary thereto).

Since the termination of an employment contract in accordance with paragraph 7.1 of the commented article is a special case of dismissal due to loss of confidence, such dismissal is also carried out according to the above rules.

11. The adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant can serve as a basis for terminating the employment contract only if this entailed a violation of the safety of property, its misuse or other damage to the property of the organization (clause 9 of the commented article ).

Termination of an employment contract on this basis is possible under the following conditions: a) when making a decision later recognized as unreasonable, the employee acted outside the normal production and economic risk or not at all in accordance with the objectives of the economic activity of the employer; b) the unreasonable decision of the employee actually caused property damage (both positive and in the form of lost profits) to the employer.

When deciding whether the decision was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of making this decision and whether they could have been avoided if another decision was made. If the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (paragraph 2, clause 48 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are beyond the economic goals of the employer as the owner of the property. The grounds for terminating the employment contract with these employees take place due to not only the loss or damage to property, but also the loss of part of its value, i.e. depreciation (depreciation).

It does not matter who caused the damage - by the employee himself or by other persons; for dismissal, the fact that the decision taken by the guilty employee provided an opportunity (served as a necessary condition) for causing damage to the employer is sufficient.

12. On the grounds provided for in clause 10 of the commented article, an employment contract with a special subject, which in this case is the head of the organization (branch and representative office), as well as his deputies, may be terminated.

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 divisions. A representative office is a separate subdivision of a legal entity, located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney.

With the heads of other structural divisions and their deputies, as well as the chief accountant of the organization, the employment contract under paragraph 10 of the commented article cannot be terminated (paragraph 4, paragraph 49 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

The considered grounds for termination of the employment contract almost completely reproduce the content of paragraph 6 of the commented article. Consequently, the head of an organization (branch, representative office) and his deputies can be dismissed either under paragraph 6 or paragraph 10 of the commented article. 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 the one in accordance with which the employment contract may be terminated under paragraph 6 of the commented article.

The question of the severity of the disciplinary offense that served as the basis for the dismissal of the employee under paragraph 10 of the commented article is subject to assessment, taking into account all the specific circumstances in which it was committed. Such an assessment is made by a person authorized to carry out dismissal, and in the event of a dispute, by a labor dispute resolution body. At the same time, the obligation 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 result in harm to the health of employees or causing property damage to the organization (paragraphs 2, 3, clause 49 Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

13. Submission by the employee to the employer of false documents when concluding an employment contract (clause 11 of the commented article) as a basis for termination of the employment contract at the initiative of the employer means that the basis for dismissal is the guilty (intentional) actions of the employee.

Dismissal under paragraph 11 of the commented article 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 submitted a falsified document on special education). Upon submission to the employer of knowingly false information that prevents the conclusion of an employment contract, dismissal is carried out in accordance with the rules established by Art. 84 of the Labor Code of the Russian Federation.

By virtue of par. 2 p. 51 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2007 N 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 by him, then the employment contract with such an employee is terminated under paragraph 11 of the commented article, and not in accordance with paragraph 11 of Art. 77 of the Labor Code of the Russian Federation.

14. An employment contract 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 (clause 13 of the commented article). 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, an employment contract with a manager (a member of the collegial executive body of the organization) may provide for cases of termination of the employment contract both at the initiative of the employee and as a result of the occurrence of circumstances that depend neither on the will of the employee nor on the will of the employer.

15. By virtue of clause 14 of the commented article, an employment contract at the initiative of the employer may also be terminated in cases other than those listed in the said article, established by the Labor Code of the Russian Federation and other federal laws.

16. Among such cases are additional grounds for terminating the employment contract with the head of the organization and a member of its collegial executive body (see also the commentary to them); (see article 288 of the Labor Code of the Russian Federation and commentary thereto), with an employee - a foreign citizen, etc.

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

The established procedure provides:

a) prohibition of dismissal of certain categories of employees. It is not allowed to dismiss an employee during the period of his temporary disability and while on vacation (part 6 of the commented article); pregnant women, as well as women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child under 18), other persons raising these children without a mother (see also commentary on it) ;

b) a warning about the upcoming dismissal. The specified 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 also the commentary to it).

Upon termination of the employment contract on the indicated grounds (clauses 1 and 2 of the commented article), the employer is warned about the upcoming dismissal by the employer personally against signature at least two months before the dismissal. In case of non-compliance with the term for warning the employee about dismissal, if he is not subject to reinstatement for other reasons, the court changes the date of his dismissal so that the employment contract is terminated after the expiration of the notice period established by law.

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

When deciding to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees in accordance with paragraph 2 of the commented article, the employer is obliged to notify the trade union body of the primary trade union organization in writing no later than two months, and in case of mass dismissal - no later than than three months before the start of the relevant events (see Article 82 of the Labor Code of the Russian Federation and commentary thereto).

When making a decision to liquidate an organization, reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service in writing about this no later than two months before the start of the relevant events and indicate the position, profession, profession and qualification requirements to them, the 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 employees - no later than three months before the start of the relevant activities (clause 2, article 25 of the Law of the Russian Federation dated April 19, 1991 N 1032-1 "On employment in the Russian Federation"). On the concept, criteria and organizational and legal consequences of the mass dismissal of workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary to them;

c) conducting 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, art. 82 of the Labor Code of the Russian Federation and commentary to it;

d) taking measures for the employment of the released employee. In accordance with part 3 of the commented article, dismissal due to a reduction in the number or staff of employees, as well as inconsistency of the employee with the position held or work performed (clauses 2 and 3 of the commented article) is allowed if it is impossible to transfer the employee with his consent to another job .

The same rule applies to the termination of the employment contract with the rector, vice-rector, dean of the faculty, head of the branch (institute), state or municipal educational organization of higher education. vocational education in connection with reaching the age of 65 years (see to it).

Other work means any other work that an 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, corresponding to the qualifications of the employee, and in the absence of such a job, another vacant lower position available in the organization or a lower-paid job that the employee can perform taking into account the above factors. 29 Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 N 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with warning him of the upcoming dismissal. Consent of an employee to perform certain work (filling a vacant position) or his refusal to new job(positions) is fixed in writing and certified by the signature of the employee.

The dismissal of employees in the event of termination of the activities of a separate structural unit located in another locality is carried out according to the rules provided for in cases of liquidation of the organization. This means that the employer is released from the obligation to employ the released workers in the organization;

e) 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 considering issues related to the termination of an employment contract at the initiative of the employer, see Art. Art. 82, 373 of the Labor Code of the Russian Federation and commentary to them;

f) receipt by the employer of consent to terminate the employment contract with the employee. Representatives of employees participating in collective bargaining, 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 a misdemeanor, for which, in accordance with the Labor Code of the Russian Federation, other federal laws provide dismissal from work (see also the commentary to it).

Representatives of employees, 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 them (see also the commentary to it).

The heads (their deputies) of the elected collegial bodies of the primary trade union organizations who are not released from their main work, during the term of their powers and within two years after its completion, can be dismissed under paragraphs 2, 3 of the commented article only with the prior consent of the relevant higher elected trade union body (see Art., and commentary to them).

The employment contract may be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activity by an individual entrepreneur;

2) reduction in the number or staff of employees of the organization, individual entrepreneur;

3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

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

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments employee, his spouse (wife) 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 for the loss of confidence in the employee on the part of the employer. The term “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 Maintaining Accounts (Deposits), Keeping Cash and Valuables in Foreign Banks Located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments”;

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents when concluding an employment contract;

12) has become invalid;

13) provided for by 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 certification procedure (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 employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of 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 by Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption".

Commentary on Art. 81 of the Labor Code of the Russian Federation

1. The grounds for dismissal of an employee at the initiative of the employer may be applicable both to all categories of employees, and to certain categories of them, taking into account the content of their employment contract.

2. The Labor Code and other federal laws may provide additional grounds for termination of an employment contract at the initiative of the employer (see,).

3. All grounds for termination of an employment contract at the initiative of the employer can be divided into three groups related to:

1) circumstances of a production nature;

2) personal circumstances of the employee;

3) guilty behavior of the employee.

5. In case of dismissal of an employee due to circumstances of a production nature (liquidation of an organization or termination of activity by an individual entrepreneur, reduction in the number or staff of employees, change of ownership of the organization’s property, etc.), it is also necessary to bear in mind the relevant provisions of the Civil Code that determine the procedure for creating, transforming and liquidating legal entities.

6. Termination of the employment contract due to personal circumstances of the employee (for example, inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification) is associated with the inability to perform labor duties for reasons beyond his control. Therefore, the submission by the employer of evidence confirming these circumstances is of particular importance.

7. When an employee is dismissed on guilty grounds (a single gross violation or repeated failure to perform labor duties without good reason, absenteeism, the state of alcohol, narcotic or other toxic intoxication, theft of someone else's property at the place of work, etc.), it is necessary to comply with the procedure and terms for attracting an employee to responsibility for the misconduct committed by him (see and,).

8. In the event of a dispute about the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (see clause 23 of the RF PPVS dated March 17, 2004 N 2).

Second Commentary on Article 81 of the Labor Code

1. One of the grounds for termination of employment is its termination at the initiative of the employer (). This is provided for in Art. 81 of the Labor Code of the Russian Federation, which establishes a limited list of grounds for termination of an employment contract. The legislator prohibits the dismissal of employees without the grounds expressly specified in the law.

In Art. 81 of the Labor Code of the Russian Federation contains general grounds for terminating an employment contract, which apply to all employees (clauses 1 - 3, 5, 6, 11). In addition, this article contains special grounds for terminating an employment contract relating to certain categories of employees (clauses 4, 7 - 10, 13, 14).

provided by Art. 81 of the Labor Code of the Russian Federation, the grounds for terminating an employment contract can also be divided into three groups: 1) the basis for terminating an employment contract in connection with guilty actions on the part of the employee (clauses 5, 6, 9, 10). In addition, this group includes pp. 7 and 8 in cases where the guilty actions that give rise to the loss of confidence, or, accordingly, an immoral act are committed by employees at the place of work and in connection with the performance of their labor duties; 2) in connection with a change in the organization of labor (clauses 1, 2, 4); 3) in connection with the personal qualities of the employee (clauses 3, 14).

The law provided for certain rules for dismissal for each of the grounds contained in Art. 81. An employer may, on its own initiative, terminate an employment contract with an employee if there is the very reason for dismissal and all the rules for dismissal on this basis are observed. But part 6 of Art. 81 also establishes such general guarantees for the realization of the right to work as a ban on dismissal during a period of temporary incapacity for work and during the period an employee is on annual leave, except in cases of complete liquidation of an enterprise, institution, organization. Thus, it is not allowed to dismiss an employee during his absence from work for good reasons. Paragraphs 23 - 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 clarify the guarantees available in the Labor Code of the Russian Federation for employees upon dismissal at the initiative of the employer.

2. Paragraph 1 of Art. 81 of the Labor Code of the Russian Federation provides for such a frequently used basis today as the liquidation of an organization or the termination of activities by an individual entrepreneur. The proof of the existence of this ground is the introduction of changes in the state register of organizations (individual entrepreneurs). The employer is obliged to notify the employee in writing of dismissal on this basis no later than two months before. Otherwise, the court, when considering a labor dispute on dismissal, having established that the procedure for dismissal was violated, will oblige the defendant to postpone the date of dismissal two months later than the actual dismissal of the employee with the corresponding payment in the amount of two months average earnings. Upon dismissal on this basis, the employee is paid a severance pay in the amount of his average monthly earnings and the payment of wages by the employer is guaranteed for up to three months in accordance with.

3. Upon dismissal under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation, the guarantees provided for in Part 6 of Art. 81 on the inadmissibility of dismissal of an employee while he is on vacation and during his temporary disability. If at this time the employer is liquidated, then the employee who is on vacation or on sick leave is dismissed with a two-month written warning. Pregnant women are dismissed on the grounds specified in paragraph 1, with their obligatory employment by the successor (or liquidation commission), and if there are none, by the employment agency.

4. If the activities of a branch, representative office or other separate subdivision of an organization located in another locality (i.e. in another locality) are terminated, termination of employment contracts with employees of this structural subdivision is carried out according to the rules provided for in cases of liquidation of the organization.

5. The grounds provided for in paragraph 2 of Art. 81 (“reducing the number or staff of employees of an organization, an individual entrepreneur”), reproduces paragraph 1 of Art. 33 of the Labor Code of the Russian Federation. In order for the application of this ground by the employer to be lawful, five conditions are necessary at the same time:

a) the actual reduction in the number or staff of the organization's employees, which is proved by comparing the previous and new numbers, the staff of employees;

b) the priority right provided for, to leave at work, first of all, employees for their business qualities and those who are prohibited from dismissal (pregnant women), and with equal business qualities preference is given to persons specified in Part 2 of Art. 179 TC;

c) the employer offered the employee an available job (as a vacant position or a job, an appropriate position or a lower paid job), which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. He is obliged to offer vacancies in other localities, if this is provided for by the collective agreement, agreement, labor contract;

d) the employee was warned in writing against signature two months in advance of his dismissal. in part 3 establishes that the employer, with the written consent of the employee, has the right to dismiss him without warning with the simultaneous payment of compensation in the amount of two months' average earnings. But, if the employee does not give written consent to this, the dismissal will be illegal;

e) the employer has previously requested the opinion of the elected trade union body on the planned dismissal of the employee - a member of the trade union in accordance with.

If at least one of these five conditions has not been met, then the employee, upon his claim to the court, will be reinstated by the court in his previous job.

If an employee occupies a position that is not provided for by the staffing table, he can also be dismissed under paragraph 2 of Art. 81 of the Code. Paragraph 30 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 specifies the guarantees to a civil servant upon dismissal under paragraphs. 1 and 2 Art. 81 of the Labor Code of the Russian Federation.

6. Clause 3 of Art. 81 of the Labor Code of the Russian Federation provides for the dismissal of an employee due to inconsistency with the position held or work performed due to insufficient qualifications, confirmed by the results of certification. Non-compliance is the objective inability of an employee to perform a properly assigned job. Qualification is a reason in which there is no subjective fault of the employee, but it can serve as a criterion for recognizing him as inappropriate for the work performed, the position held.

The employer must prove the non-compliance of the employee. His objective inability to qualitatively perform the work stipulated by the employment contract is manifested in its unsatisfactory results, systematic marriage, etc. If the employee performs his work unsatisfactorily, because the employer has not created normal working conditions, this cannot be considered a discrepancy.

7. The non-compliance of the employee due to insufficient qualifications must be proved by the conclusion of the attestation commission based on the results of the employee's attestation. The conclusions of this commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case.

Currently, the certification procedure 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 employees.

It is impossible to dismiss on this basis only due to the fact that the employee does not have a diploma of special education, if it is not required by law. When the law requires the presence of special education for this work, and because of its absence, the employee performs work of poor quality, he can be dismissed due to a mismatch of qualifications.

It is impossible to dismiss on this basis employees who do not have sufficient work experience due to a short period of work (young workers and young specialists), as well as minors, etc.

8. Clause 4 of Art. 81 of the Labor Code of the Russian Federation provides for a new additional ground for dismissal only in relation to the head of the organization, his deputies and the chief accountant - "change of ownership of the organization's property." The new owner, having entered into his rights, may, within the first three months, dismiss the indicated persons, all or some of them, replacing them with new ones.

The change of ownership of the property of an organization should be understood as: the transfer (transfer) of ownership of the property of an organization from one to another or to other persons, in particular during the privatization of state or municipal property, i.e. when alienating property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities; when the property owned by the organization is converted into state property; when transferring state-owned enterprises to municipal ownership and vice versa; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.

You need to know that the conditions of paragraph 4 of Art. 81 of the Labor Code of the Russian Federation do not apply to cases of reorganization of a legal entity, changes in its jurisdiction.

Dismissal under this paragraph cannot take place if there is no change in the owner of the property of the entire organization, but only the owner of the structural unit or only the composition of shareholders has changed (see paragraph 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).

9. Clause 5 of Art. 81 of the Labor Code of the Russian Federation provides for the termination of an employment contract for repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction. It will be legal to dismiss on this basis if there are simultaneously the following circumstances:

1) the employee has a disciplinary sanction for the last working year (imposed more than a year ago is no longer valid);

2) the employee has committed disciplinary offense, i.e. labor offense - did not fulfill his labor duty without good reason;

3) the employer requested a written explanation from him about the causes of the labor offense no later than one month from the day the misconduct was discovered and six months from the day it was committed (two years for an audit);

4) the employer took into account all his previous behavior, his many years of conscientious work, the circumstances of the misconduct.

This ground contains the fault of the employee, therefore, when dismissing, the degree and form of fault are taken into account (see paragraphs 33 - 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

10. Clause 6 of Art. 81 of the Labor Code of the Russian Federation provides for five gross one-time violations by an employee of his labor duties, and each of them is an independent basis for dismissal, even if he does not have disciplinary sanctions. All of them are an extreme measure of disciplinary action. Therefore, for all five subparagraphs of paragraph 6 of Art. 81, the terms and rules for imposing disciplinary sanctions must be observed (see also to them). Article 81 of the Labor Code of the Russian Federation in paragraph 6 provided for the following grounds for dismissal.

Absenteeism (signature “a”), i.e. absence from the workplace without good reason throughout the working day (shift), regardless of its (its) duration, as well as absence from the workplace without good reason for more than four hours in a row during the working day (shift). Thus, the Code gave a stricter concept of absenteeism than it was before. Dismissal on this basis can be made, as indicated in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (p. 39), and for the following violations:

a) leaving work without a valid reason by a person who has concluded an employment contract for an indefinite period, without warning the employer about the termination of the employment contract, as well as before the expiration of the two-week warning period (see to it);

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

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

d) unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional).

Often dismissal for absenteeism is associated with the refusal of the employee to start the job to which he was transferred. But, if the transfer to another job was made in violation of the rules on the transfer, such a refusal cannot be qualified as absenteeism. When the court reinstates an employee who was illegally dismissed for absenteeism, payment for forced absenteeism is made from the date the dismissal order is issued, because only from that time absenteeism is forced.

Subparagraph "b" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation provides for such a basis for dismissal as the appearance at work in a state of alcoholic, narcotic or other toxic intoxication. An employee who appears at any time of the working day (shift) in a state of intoxication, the employer is obliged to remove him from work on that day (shift). But even if he was not suspended from work, the evidence for this reason is a medical report, an act drawn up at that time, testimonies and other evidence under the Code of Civil Procedure.

Subparagraph “c” of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation establishes a new ground for dismissal, classified as gross violations - the disclosure of a legally protected secret (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee. An employer can fire an employee for a one-time misconduct. Since the vast majority of employees do not know what relates to commercial and official, and even more so other secrets, employers can abuse this ground for dismissal. Therefore, additional clarifications are required on this issue, for example, are all employees of the organization responsible for commercial or official secrets, their disclosure, or only those whose employment contracts indicate the appropriate condition, whether what is specified in the organization’s charter is a legally protected secret, etc. .d.

Subparagraph "g" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation contains such a basis as the commission of theft (including small) of another's property at the place of work, its embezzlement, deliberate destruction or damage, established by a court verdict that has entered into force or a decision of the relevant administrative body (police, for example). If there are no such documents, but there is only, say, a watchman’s report about an attempt to take out production, the employee cannot be fired on this basis, otherwise the court, when considering a dispute about dismissal, will reinstate him at work.

Subparagraph "e" of paragraph 6 of Art. 81 of the Code provided for such a basis as the establishment by the labor protection commission or the labor protection commissioner of a violation by the employee of labor protection requirements, if this violation entailed serious consequences or knowingly created a real threat of such consequences. Serious consequences include an accident at work, an accident, a catastrophe. But the consequences indicated here or the obviously real threat of their occurrence must be proved by the employer when considering a dispute in court.

11. Clause 7 of Art. 81 of the Labor Code of the Russian Federation contains an additional reason - the dismissal of an employee directly servicing monetary or commodity values ​​for committing guilty acts that give rise to a loss of confidence in him by the employer. On this basis, only an employee directly serving monetary or commodity values ​​\u200b\u200bcan be dismissed, regardless of what type of liability (limited or full) is assigned to him. These are, in their absolute majority, the so-called financially responsible persons (by law or by contract), i.e. salespeople, cashiers, warehouse managers, etc. (watchmen cannot be attributed to them, as they guard the material values ​​\u200b\u200bthat are under lock and key). Moreover, the employer must prove the lack of confidence in the employee with facts (acts on the calculation, weighting, shortage, etc.).

12. Clause 8 of Art. 81 of the Labor Code of the Russian Federation in this case means the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work. Immoral is a misdemeanor that is contrary to generally accepted morality in society (appearance in public places in a state of intoxication, obscene language, fight, behavior that degrades human dignity, etc.). This offense can also be committed in everyday life (for example, a teacher beats his wife, tortures his children).

13. Clause 9 of Article 81 of the Labor Code provided for a new additional ground for the dismissal of the heads of an organization (branch, representative office), their deputies and chief accountants. This is "the adoption of an unreasonable decision by them, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization." However, “unreasonable decision” is an evaluative concept, and in practice it is evaluated by the employer (single or collectively). If the specified employee, by his decision, prevents possible greater damage to the property of the organization, such a decision cannot be considered unreasonable. In the event of the occurrence of the situation specified in clause 9, the guilt of the employee must be proved when labor dispute employer. Dismissal on the indicated grounds is disciplinary, therefore, the rules for imposing a disciplinary sanction must be observed (see to it).

14. In paragraph 10 of Art. 81 provides for the basis for the dismissal of the heads of organizations (branch, representative office), their deputies, chief accountants for a single gross violation of their labor duties. It also applies to disciplinary dismissals, in which the rules of art. 193 of the Labor Code of the Russian Federation.

The question of whether the committed violation was gross is decided by the court, taking into account the specific circumstances of each case. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer himself.

In accordance with paragraph 49 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should, in particular, regard the failure to fulfill the duties assigned to these persons by the employment contract, which could cause harm to the health of employees or property damage to the organization.

15. Paragraph 11 of Art. 81 of the Labor Code of the Russian Federation provides for a general new ground for dismissal, filling in the existing gap in labor legislation. This is the submission by the employee to the employer of false documents or knowingly false information when concluding an employment contract. Of course, the forgery of documents must be substantiated by their respective forensic examination and other evidence. As for deliberately false information, I think that such information should influence the work. For example, if, when hiring a woman, when asked if she had small children, she answered in the negative, although she had such children, it would hardly be fair to dismiss her on this basis, since this fact does not affect her business qualities.

16. Clause 13 of Art. 81 of the Labor Code of the Russian Federation provides for the old additional basis (clause 4 of article 254 of the Labor Code), extending it not only to managers, but also to members of the collegial executive body of the organization. They can be fired on the grounds stipulated by their employment contracts. At the same time, links in work book are made on paragraph 13 of Art. 81 of the Labor Code of the Russian Federation.

→

Article 81 of the Labor Code of the Russian Federation with comments and changes in 2018-2019.

The employment contract may be terminated by the employer in the following cases:

1. liquidation of an organization or termination of activity by an individual entrepreneur;
2. reduction in the number or staff of employees of the organization, individual entrepreneur;
3. non-compliance of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;
4. change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5. repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
6. a single gross violation of labor duties by an employee:
   • a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
   • b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;
   • c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
   • d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
   • e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;
7. the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
8. failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or submit knowingly incomplete or inaccurate information about income, expenses, property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse and minor children in the 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 loss of confidence in the employee on the part of the employer;
9. the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
10. making an unreasonable 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;
11. a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
12. submission by the employee to the employer of false documents when concluding an employment contract;
13. has lost its power. - Federal Law No. 90-FZ of June 30, 2006;
14. provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;
15. in other cases established by this Code and other federal laws.

The certification procedure (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 employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in 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 the guilty actions that give grounds for the 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

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

1. Article 81 of the Labor Code of the Russian Federation provides a list of grounds for termination of an employment contract at the initiative of the employer. It contains both grounds that apply to all employees, and grounds that apply only to a certain category of workers.

Part 1 of the commented article contains 11 specific grounds for termination of an employment contract at the initiative of the employer, enshrined in the relevant paragraphs.

1.1. Clause 1 - liquidation of the organization or termination of activity by an individual entrepreneur. Labor legislation does not give the concept of "liquidation of an organization", and, applying the norm of paragraph 1 of the commented article, it is necessary to use the provisions of the Civil Code, which determines the procedure for the creation, transformation and liquidation of legal entities.

Article 61 of the Civil Code provides that the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons. In accordance with the said article, a legal entity may be liquidated:

• by decision of its founders (participants) or a body of a legal entity authorized to do so by constituent documents, incl. in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created;
• by a court decision in case of admission during its creation gross violations of the law, if these violations are irreparable, or the implementation of activities without a proper permit (license), or prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts, or with the systematic implementation non-profit organization, incl. public or religious organization (association), charitable or other foundation, activities that are contrary to its statutory goals, as well as in other cases provided for by the Civil Code.

Legal entity, with the exception of a state-owned enterprise, institution, political party and religious organization, is also liquidated in accordance with Art. 65 of the Civil Code due to its recognition as insolvent (bankrupt). State Corporation may be liquidated as a result of declaring it insolvent (bankrupt), if this is allowed by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if it is established by law providing for the establishment and operation of such a fund.

The basis for the dismissal of employees under paragraph 1 of Part 1 of Art. 81 of the Labor Code of the Russian Federation may serve as a decision on the liquidation of a legal entity, i.e. a decision to terminate its activities without the transfer of rights and obligations by way of succession to other persons, adopted in the prescribed manner (Article 61 of the Civil Code) (paragraph 28 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). At the same time, it does not matter who and on what basis liquidates a legal entity that is an employer. The very fact of liquidation of the organization is important.

The liquidation of a legal entity is considered completed, and the legal entity ceased to exist after an entry about this is made in the Unified State Register of Legal Entities (clause 8, article 63 of the Civil Code).

Termination of the employment contract on the basis of paragraph 1 of part 1 of the commentary is also carried out in the event that the activity of an individual entrepreneur ceases. The decision to terminate the activities of an individual entrepreneur may be taken by him/herself, by the court, as a result of declaring him insolvent (bankrupt), due to the expiration of the certificate of state registration, refusal to renew the license for certain types of activities.

The employee must be warned about the upcoming dismissal in connection with the liquidation of the organization, against signature, at least 2 months in advance. However, with the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the 2-month period, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (part 3 of article 180 of the Labor Code - see comments to it). For example, if an employee, with his written consent, quits one month after the notice of dismissal, then upon dismissal he must be paid additional compensation for one month (i.e. for the time left before the expiration of 2 months for which he was warned about layoffs). In the above norm, we are talking about additional compensation, i.e. on the amount paid in excess of the severance pay and the average monthly earnings retained for the period of employment.

According to Part 1 and Part 2 of Art. 178 of the Labor Code, employees dismissed in connection with the liquidation of the organization are paid a severance pay in the amount of the average monthly earnings, and they also retain the average monthly earnings for the period of employment, but not more than 2 months from the date of dismissal (with offsetting the severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within 2 weeks after dismissal and was not employed by him (see commentary to Art. . 178). On guarantees and compensations to dismissed employees working for employers - individuals, see comments. to Art. 307.

The rules on termination of an employment contract in connection with the liquidation of an organization should also be applied when, in accordance with the procedure established by law, the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality are terminated (part 4 of article 81 of the Labor Code of the Russian Federation). It should be noted that, although the commented article, along with branches and representative offices of a legal entity, names other separate structural divisions located in another locality, from the point of view of civil law, only branches and representative offices are separate structural divisions of a legal entity located outside its location (art. 55 GK).

1.2. Point 2 - reduction in the number or staff of employees of an organization, an individual entrepreneur. Termination of employment contracts with employees on this basis is lawful under the following conditions:

• a) a reduction in the number of employees or staff is really (really) taking place. This circumstance must be confirmed by an order to reduce the number or staff of employees and a new staffing table. At the same time, new staffing must be approved before the start of measures to reduce the number or staff of the organization's employees;

b) the employee does not have a preferential right to stay at work. In accordance with Art. 179 of the Labor Code, when reducing the number or staff of employees, the priority right to remain at work is granted to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, preference is given to staying at work: family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood); persons in whose family there are no other self-employed workers; employees who have received a labor injury or occupational disease in this organization; invalids of the Great Patriotic War and invalids of military operations for the defense of the Fatherland; employees who improve their skills in the direction of the employer on the job. The collective agreement may provide for other categories of workers enjoying the preferential right to remain at work with equal labor productivity and qualifications.

It should be borne in mind that neither the Labor Code nor other regulatory legal acts contain criteria for higher labor productivity and qualifications, which are referred to in Art. 179 TK. They have been developed by practice, incl. judicial. As evidence of higher labor productivity, as a rule, take into account such indicators as the performance of a significantly larger amount of work at the proper level or in a shorter period of time compared to other employees occupying a similar position, the absence of errors in the performance of work, the employee receiving bonuses for high performance and other rewards.

In order to confirm a higher qualification of an employee, in addition to the level of education, experience and knowledge of the specifics of work, advanced training by the employee, and the presence of additional qualification characteristics(proficiency in one or more foreign languages, ability to work on a computer). The personal qualities of an employee (sociability, goodwill, a sense of responsibility, the ability to quickly navigate in non-standard situations, etc.) can also be taken into account. To confirm the relevant business qualities of an employee, various documents can be used (memos of the immediate supervisor, characteristics, results of an earlier certification, etc.).

When deciding on the priority right to remain at work, it must also be taken into account that Art. 179 of the Labor Code speaks of the pre-emptive right to remain in the same (same) job. This means that if several employees who are subject to redundancy apply for a vacant position, then the rule on the priority right to remain at work does not apply to them. In this case, the employer has the right to determine which of the employees to be dismissed to offer a vacant position. Otherwise, it would indicate an unlawful restriction of the employer’s right to independently, under his own responsibility, make the necessary personnel decisions on the selection, placement and dismissal of employees, which is referred to in paragraph 10 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2;

• c) the employee in advance, at least 2 months before the dismissal, was warned personally and against signature about the upcoming dismissal to reduce the number or staff. However, as in the case of dismissal due to the liquidation of the organization, with the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the 2-month period, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the warning period on dismissal (part 3 of article 180 of the Labor Code; see also clause 1.1 of the commentary);
• d) when considering the issue of dismissal of an employee, the elected body of the primary trade union organization participated (see comments to Article 82 of the Labor Code);
• e) it is impossible to transfer an employee with his consent to another job (see paragraph 2 of the commentary).

The right to determine the number and staff of employees belongs to the employer. However, in cases specified by law, this right of the employer may be limited.

So, in accordance with Art. 14 of the Federal Law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property" (SZ RF. 2002. N 4. Art. 251) from the date of approval of the forecast plan (program) for the privatization of federal property and until the moment the right is transferred ownership of the privatized property to the buyer of the property complex of the unitary enterprise or the moment of state registration of the created open joint-stock company the unitary enterprise is not entitled to reduce the number of employees of the specified unitary enterprise without the consent of the owner.

1.3. Point 3 - the inconsistency of the employee with the position held or the work performed. This paragraph provides for one reason that prevents the employee from continuing to work and is the basis for his dismissal at the initiative of the employer, due to inconsistency with the position held or the work performed. This is an insufficient qualification of the employee, confirmed by the results of certification.

The dismissal of an employee on this basis is permissible, provided that the employee’s inconsistency with the position held due to his insufficient qualifications is confirmed by the results of certification. In other words, the rules on conducting certification to resolve the issue of dismissal due to insufficient qualifications should apply to all employees in respect of whom the question is raised about the discrepancy between their position or work performed. With this in mind, the employer is not entitled to terminate the employment contract with the employee on the above grounds, if this employee was not assessed or the certification commission came to the conclusion that the employee is suitable for the position held. At the same time, the conclusions of the attestation commission on the business qualities of the employee are subject to assessment in conjunction with other evidence in the case (paragraph 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

In accordance with Part 2 of Art. 81 of the Labor Code of the Russian Federation, the certification procedure 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 employees.

As an example, we can name some categories of employees in respect of which the regulatory legal acts establish the procedure and conditions for certification.

For example, heads of federal state unitary enterprises are certified in accordance with the Regulation, approved. Decree of the Government of the Russian Federation of March 16, 2000 N 234 "On the procedure for concluding employment contracts and certification of heads of federal state unitary enterprises" (SZ RF. 2000. N 13. Art. 1373), civil servants - in accordance with the Regulations on certification public civil servants of the Russian Federation, approved. Decree of the President of the Russian Federation of February 1, 2005 N 110 (SZ RF. 2005. N 6. Art. 437). Persons holding the positions of executive heads and specialists of organizations and their divisions engaged in the transportation of passengers and goods are certified in accordance with the Regulation, approved. Order of the Ministry of Transport of Russia and the Ministry of Labor of Russia dated March 11, 1994 N 13/11 (BNA RF. 1994. N 7). Employees of the pension fund system are certified in accordance with the Regulations on the procedure for attestation of employees of the Pension Fund system of the Russian Federation, approved. Resolution of the PFR Board of January 15, 2007 N 5p (BNA RF. 2007. N 24), etc.

The certification procedure provided for in these and other regulatory legal acts can also be taken as a basis for the development of local regulations establishing the procedure for certification of employees in respect of which the question of dismissal is raised due to inconsistency with their position or work performed due to insufficient qualifications .

Dismissal in connection with the revealed inconsistency of the employee with the position held or the work performed due to insufficient qualifications in accordance with paragraph 3 of part 1 of article 81 of the Labor Code of the Russian Federation is allowed provided that it is impossible to transfer the employee with his consent to another job (see paragraph 2 of the commentary).

If the employee was dismissed under paragraph 3 of part 1 of this article, then the employer is obliged to provide evidence indicating that the employee refused to be transferred to another job or the employer was not able (for example, due to the lack of vacant positions or jobs) to transfer an employee with his consent to another job in the same organization (paragraph 31 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

For the dismissal under paragraph 3, part 1, who is a member of a trade union, a reasoned opinion of the relevant elected body of the primary trade union organization is also required (see comments to Article 82).

1.4. Item 4 - change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant). On the basis of paragraph 4 of the commented article, an employment contract at the initiative of the employer can be terminated only with the head of the organization, his deputies and the chief accountant of the organization. Other employees cannot be dismissed at the initiative of the employer in connection with a change in the ownership of the organization's property (see comments to Article 75).

At the same time, it should be borne in mind that termination of the employment contract on the named basis is possible only in the event of a change in the owner of the property of the organization as a whole. These persons cannot be dismissed under paragraph 4 of part 1 of article 81 of the Labor Code of the Russian Federation when the jurisdiction (subordination) of the organization changes, unless there is a change in the owner of the organization's property (paragraph 32 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 ).

Since, in accordance with paragraph 1 of Art. 66 of the Civil Code and paragraph 3 of Art. 213 of the Civil Code, the owner of property created at the expense of contributions from 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 a company or partnership, and the participants, by virtue of par. 2 p. 2 art. 48 of the Civil Code have only rights of obligation in relation to such legal entities (for example, to participate in managing 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 terminating an employment contract under clause 4, part 1 commented on the article with the persons listed in this rule, tk. in this case, the partnership or company itself remains the owner of the property of the business partnership or company, and there is no change in the owner of the property (paragraph 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

1.5. Clause 5 - repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction. This paragraph allows the dismissal of an employee in the event of repeated failure to perform, without good reason, the duties assigned to him by an employment contract or internal labor regulations, if the employee already has a disciplinary sanction.

As explained by the Plenum of the Supreme Court of the Russian Federation, when resolving disputes of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without valid reasons, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment of labor duties by him without valid reasons, it has not been removed and not redeemed. Application of a new disciplinary sanction to an employee, incl. and dismissal under paragraph 5 of part 1 of this article is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction (paragraph 33 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2; see also commentary to article 194).

At the same time, the employer must provide evidence indicating that the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract and that the employer complied with the provisions of Art. 193 of the Labor Code, the terms for applying a disciplinary sanction (paragraph 34 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2; see also comments to article 193).

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he submitted an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice period for dismissal (paragraph 33 of the Decree Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Repeated violation by an employee without valid reasons of labor duties must be confirmed by recorded facts of disciplinary sanctions, in particular, an order to impose a disciplinary sanction.

If official disciplinary sanctions were not applied to an employee who violated labor discipline, dismissal under paragraph 5 of part 1 of Article 81 of the Labor Code of the Russian Federation cannot be recognized as legal (see commentary to Article 192).

1.6. Clause 6 - a single gross violation of labor duties by an employee. The specified paragraph of the commented article, as well as paragraph 5, provides for the possibility of terminating an employment contract with an employee for violation (non-fulfillment) of labor duties. The fact that in paragraph 5 the term "failure to perform labor duties" is used, and in paragraph 6 - "violation", does not change the essence of the case. In both cases, we are talking about a violation of labor discipline (see comments to Article 192).

However, if, according to paragraph 5, dismissal is allowed only in case of repeated violation of labor discipline, then according to paragraph 6, an employee can be dismissed for a single violation of labor duties, if it is gross. As explained by the Supreme Court of the Russian Federation, when considering a case on the reinstatement of a person dismissed under paragraph 6 of part 1 of this article, the employer is obliged to provide evidence indicating that the employee has committed one of the gross violations of labor duties specified in this paragraph. At the same time, it should be borne in mind that the list of gross violations of labor duties, which gives grounds for terminating the employment contract with the employee, under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation is exhaustive and is not subject to broad interpretation (paragraph 38 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Among the gross violations of labor duties (labor discipline), paragraph 6 of the commented article includes:

1) absenteeism (subparagraph "a"), which qualifies as absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as absence from the workplace without good reason for more than 4 hours in a row during the working day (shift).

Dismissal on this basis, in particular, can be made for:

• a) absence from work without good reason (i.e. absence from work during the whole working day (shift);
• b) the presence of an employee without good reason for more than 4 hours in a row during the working day outside the workplace;
• c) abandonment of work without a valid reason by a person who has concluded an employment contract for an indefinite period, without warning the employer about the termination of the employment contract, as well as before the expiration of the 2-week warning period (part 1 of article 80 of the Labor Code);
• d) leaving work without a valid 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) (see comments to them);
• e) unauthorized use of days off, as well as unauthorized leave on vacation (basic, additional). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism in the event that the employer, in violation of the obligation stipulated by law, refused to provide them, and the time the employee used such days did not depend on the discretion of the employer (for example, refusal to provide an employee who is a donor in accordance with part 4 of article 186 of the Labor Code of the day of rest immediately after each day of donating blood and its components) (paragraph 39 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

As explained by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004, when considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to a refusal to start it, the employer is obliged to provide evidence testifying to the legality the translation itself. If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job (paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

Subparagraph "a" of paragraph 6 of the commented article applies both in cases where the employee, after absenteeism, started work, and when he actually leaves work without intending to continue it. In both the first and second cases, the last day of work is considered the date of dismissal.

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying legal requirements, must take into account that the average in such cases, the salary of a reinstated employee in such cases may be recovered not from the first day of absenteeism, but from the date of issuance of the dismissal order, since only from that time absenteeism is considered forced (clause 41 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2) ;

2) the appearance of an employee at work (at his workplace or on the territory of the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b" was adopted in a new edition) . On this basis, employees who were during working hours at the place of performance of labor duties in a state of alcoholic, narcotic or other toxic intoxication may be dismissed. It does not matter whether the employee was suspended from work in connection with the specified condition.

It also does not matter when the employee was at work in a state of alcoholic, narcotic or other toxic intoxication - at the beginning or at the end of the working day.

It should also be borne in mind that dismissal on this basis can also follow when the employee was in such a state during working hours not at his workplace, but on the territory of the employing organization or facility where, on behalf of the employer, he must perform a labor function.

The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court (paragraph 42 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2);

3) disclosure of state, official, commercial or other secrets protected by law, incl. disclosure of personal data of another employee (subparagraph "c"). The dismissal of an employee on this basis may be recognized as lawful if the following conditions are met:

• the obligation not to disclose such a secret is expressly provided for by the employment contract with the employee;
• the employment contract or its annex specifies exactly what specific information containing state, official, commercial and other protected secrets (including personal data of another employee), the employee undertakes not to disclose;
• a secret protected by law is entrusted (became known) to the employee in connection with the performance of his labor function;
• information that, in accordance with the employment contract, the employee undertakes not to disclose, according to the current legislation, can be classified as information constituting state, official, commercial and other secrets protected by law (see comments to Article 57).

In the absence of at least one of the named conditions, the termination of the employment contract under sub. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation cannot be recognized as lawful.

Attention was drawn to this circumstance in the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2, which explained that if an employee disputes the dismissal under sub. "in" paragraph 6 of part 1 of the commentary article, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with applicable law, refers to state, official, commercial or other secrets protected by law, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information (paragraph 43);

4) theft (including small) of another's property, embezzlement, its deliberate destruction or damage (subparagraph "d"). Employees may be dismissed on this basis, provided that the specified illegal actions were committed by them at the place of work and their guilt is established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses (see paragraph 44 Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

In this regard, they cannot serve as a basis for the application of sub. "d" of paragraph 6 of part 1 of this article, for example, acts of private security bodies that recorded the fact of theft of property, since these bodies are not entitled to apply administrative penalties.

The established one-month period for the application of such a disciplinary sanction is calculated from the date the court verdict or the decision of the body authorized to apply administrative penalties comes into force (paragraph 44 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

Any property that does not belong to the this employee, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization (clause 44 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2);

5) violation by the employee of labor protection requirements, established by the commission on labor protection or the commissioner for labor protection (subparagraph "e"). The specified offense may be the basis for the dismissal of an employee, provided that this violation caused serious consequences or knowingly created a real threat of serious consequences. For example, if a fire, accident, explosion occurred or could actually occur due to a violation by an employee of established safety rules.

Violation by the employee of labor protection requirements in this case must be established and confirmed by the relevant documents (accident report, expert opinion, resolution of the federal inspector for labor protection, etc.).

1.7. Paragraph 7 - the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer. The specified paragraph provides for the termination of an employment contract with an employee for committing guilty actions by him, if these actions give rise to a loss of confidence on the part of the employer.

Dismissal due to loss of confidence is possible only in relation to employees directly serving monetary or commodity values ​​​​(reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer grounds for loss confidence in them (paragraph 45 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

Therefore, if according to paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation, an employee is dismissed who does not directly serve monetary or commodity values, then such dismissal is illegal.

As a rule, employees who directly serve monetary or commodity values ​​include employees who bear full financial responsibility for the safety of the values ​​entrusted to them on the basis of the law or a special written agreement on full liability.

The list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full individual or collective (team) liability is approved by the Decree of the Ministry of Labor of Russia of December 31, 2002 N 85 (BNA RF. 2003. N 12).

When establishing in the manner prescribed by law the fact of committing theft, bribery and other mercenary offenses, these employees can be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work (paragraph 45 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17 2004 N 2). At the same time, it should be borne in mind that the dismissal of an employee on this basis in cases where the guilty actions that give grounds for the loss of confidence are 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 allowed no later than one year from the date of discovery of the misconduct by the employer (see comments to Article 192).

1.8. Paragraph 8 - the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work. This paragraph provides for the termination of an employment contract with an employee performing educational functions if he has committed an immoral offense that is incompatible with the continuation of this work.

On this basis, only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions, are allowed to be dismissed. At the same time, it does not matter where the immoral offense was committed: at the place of work or at home (paragraph 46 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

At the same time, it should be borne in mind that the procedure for dismissal on these grounds depends on the place of committing an immoral offense, as well as on the place of committing guilty acts that give rise to the loss of trust by the employer. If an immoral offense is committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, dismissal in this case is allowed no later than one year from the date the employer discovered the misconduct (part 5 of article 81 of the Labor Code of the Russian Federation). This is due to the fact that in accordance with Part 3 of Art. 192 of the Labor Code dismissal of an employee for committing guilty acts that give rise to a loss of confidence in him on the part of the employer, as well as for committing an immoral offense if these actions (immoral misconduct) are committed by the employee outside the place of work or at the place of work, but not in connection with the performance them labor duties, is not a measure of disciplinary action, the application of which is due to the terms established by Art. 193 of the Labor Code (see comments to it and article 192).

1.9. Clause 9 - making an unreasonable 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 misuse or other damage to the property of the organization. Termination of an employment contract on the grounds provided for in this paragraph is permissible only in relation to the head of the organization (branch, representative office), his deputies and the chief accountant, and provided that they made an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization.

When deciding whether the decision taken is unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of making this decision and whether they could have been avoided if another decision was made. At the same time, if the employer does not provide evidence confirming the onset of adverse consequences specified in paragraph 9 of the commented article, dismissal on this basis cannot be recognized as legal (paragraph 48 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

In other words, dismissal on this basis can be considered lawful only if there is a causal relationship between the unreasonable decision made by the specified employees and the adverse consequences that have occurred.

1.10. Clause 10 - a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties. He admits the possibility of dismissal of the head of the organization, his deputies, as well as the heads of the branch and representative office, if they committed a single gross violation of their labor duties.

Heads of other structural divisions of the organization and their deputies, as well as Chief Accountant organizations cannot be dismissed on this basis. However, an employment contract with such employees can be terminated for a single gross violation by them of their labor duties under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations provided for in subpara. "a" - "d" clause 6, part 1, or in other cases, if it is provided for by federal laws (clause 49 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2; see also comments to clause 6 part 1).

While providing for the possibility of dismissal of these workers for a single gross violation of labor duties, paragraph 10 of the commented article, however, does not determine which violations of labor duties in this case can be classified as gross. In this regard, as explained by the Plenum of the Supreme Court of the Russian Federation, the question of whether the committed violation was gross is decided by the court, taking into account the specific circumstances of each case. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer.

As a gross violation of labor duties by the head of the organization (branch and representative office), his deputies, one should, in particular, regard the 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 (paragraph 49 of the Resolution of the Plenum of the Supreme Court RF dated March 17, 2004 N 2). For example, violation of labor protection requirements, rules for accounting for material assets, distortion of statistical reporting data, abuse of official authority or use of them for personal gain. Failure to perform any actions that were not charged to the head of the organization (branch, representative office) or his deputy cannot be laid as the basis for dismissal.

It should be borne in mind that the presence of paragraph 10 in part 1 of this article does not exclude the possibility of dismissal of the employees indicated in it and according to paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations of labor duties provided for by this paragraph.

1.11. Clause 11 - submission by the employee to the employer of false documents when concluding an employment contract. This circumstance may be the basis for terminating the employment contract with the employee, provided that the documents that the employee submitted are indeed forged and this fact is established by the relevant competent institutions (authorities). For example, if, when applying for a job requiring special education in accordance with the law, the employee presented a false (false) document certifying the presence of such education, or presented a fake passport or other identity document. In other words, the submission by the employee to the employer of false documents when concluding an employment contract may be the basis for terminating the employment contract with the employee under the commented paragraph, provided that the original documents that the employee had to submit, or the absence of such documents, could be a legal basis for refusing to conclude a contract with him an employment contract.

If the reliability or inaccuracy of the documents submitted by the employee in itself cannot serve as a basis for refusing to hire, dismissal on this basis can hardly be considered lawful. For example, if an employee presented a false document on education, the presence of which is not required to perform the work assigned to him under an employment contract, and the employer did not request the relevant document from the employee.

1.13. Clause 13 - cases provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization. The clause provides for the possibility of terminating an employment contract with the head of the organization and members of the collegial executive body of the organization (for example, with members of the board of an JSC) on additional grounds, if these additional grounds are directly established by the employment contract.

The legislator does not define either the list or the nature of additional grounds for termination of labor relations that could be provided for in an employment contract with these employees. In this regard, in each specific case, such grounds for terminating the employment contract with the head of the organization or with members of the collegial executive body of the organization are established by agreement of the parties.

According to established practice, as additional grounds for dismissal, employment contracts with heads of organizations provide for: non-compliance with the decision general meeting shareholders; causing losses to the managed enterprise, society; admission by the manager due to inefficient work of more than 3 months of delay in paying employees wages, allowances, benefits established by law, as well as the formation of an organization's debt to pay taxes, fees and obligatory payments established by the legislation of the Russian Federation to the budget of the Russian Federation, the corresponding budgets of the constituent entities of the Russian Federation , municipalities and off-budget funds for more than 3 months, etc.

As an example, one can also cite additional grounds for terminating an employment contract, provided for by an exemplary employment contract with the heads of a federal state unitary enterprise.

In particular, these are:

• non-fulfillment due to the fault of the head of the indicators approved in the prescribed manner economic efficiency enterprise activities;
• failure to ensure the conduct of audits of the enterprise in the prescribed manner;
• failure to comply with decisions of the Government of the Russian Federation, federal executive bodies;
• making transactions with property under the economic jurisdiction of the enterprise, in violation of the requirements of the law and the special legal capacity of the enterprise determined by the charter of the enterprise;
• the presence, through the fault of the head of the enterprise, of more than 3-month wage arrears;
• violation due to the fault of the head, established in the manner prescribed by the legislation of the Russian Federation, of the requirements for labor protection, which resulted in the adoption of a court decision on the liquidation of the enterprise or the termination of the activities of its structural unit;
• failure to ensure the use of the property of the enterprise, incl. immovable, for the intended purpose in accordance with the types of activities of the enterprise established by the charter of the enterprise, as well as non-use of budgetary and extra-budgetary funds allocated to the enterprise for the intended purpose for more than 3 months;
• violation of the requirements of the legislation of the Russian Federation, as well as the company's charter in terms of reporting information about the presence of interest in transactions, incl. by circle of affiliated persons;
• violation established by law of the Russian Federation and an employment contract for a ban on engaging in certain types of activities (see Sample employment contract with the head of a federal state unitary enterprise, approved by Order of the Ministry of Economic Development of Russia dated March 2, 2005 N 49 // BNA RF. 2005. N 23).

Dismissal on additional grounds provided for in the employment contract will be lawful if the additional grounds for dismissal are formulated quite clearly, specifically and definitely. In other words, it is necessary to make it clear when performing what actions (or allowing for what inaction) it is possible to terminate the employment contract with the director of the organization or a member of the collegial executive body of the organization.

It is quite legitimate if the grounds for dismissal are formulated in relation to the labor duties of these persons. For example, failure to fulfill an obligation stipulated by a specific clause of an employment contract (see also comments to Article 278).

In addition to the above, termination of an employment contract at the initiative of the employer is also possible in other cases, if this is expressly provided for by the Labor Code or other federal law. For example, in accordance with Art. 41 of the Law on the State Civil Service, a civil servant may be dismissed from the civil service by decision of the head of the state body in connection with the withdrawal from the citizenship of the Russian Federation or in connection with the acquisition of citizenship of a foreign state, unless otherwise provided by an interstate agreement of the Russian Federation.

2. Dismissal on the grounds provided for in paragraph 2 or paragraph 3 of part 1 of the commented article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. This may be a vacant position or job, both corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if this is provided for by the collective agreement, agreements, labor contract (see also comments to article 74). When deciding on the transfer of an employee to another job, it is also necessary to take into account the real ability of the employee to perform the work offered to him, taking into account his education, qualifications, work experience (paragraph 29 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2).

3. In accordance with part 6 of the commented article, dismissal on any of the grounds provided for in Art. 81 of the Labor Code of the Russian Federation, except for dismissal in connection with the liquidation of an organization or the termination of activity by an individual entrepreneur, is not allowed during the period of temporary disability of the employee or while he is on vacation. At the same time, it does not matter what vacation the employee is on: on the next annual leave, on study leave, leave without pay, etc.

As explained by the Plenum of the Supreme Court of the Russian Federation, when considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17 2004 N 2). At the same time, the said Resolution of the Plenum of the Supreme Court of the Russian Federation notes that when considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, in including and from the workers themselves. In particular, it is unacceptable for an employee to conceal temporary incapacity for work at the time of his dismissal from work or the fact that he is a member trade union or the head (his deputy) of the elected trade union collegial body of the organization, its structural subdivisions (not lower than the shop and equated to them), not released from the main work, when the decision on the issue of dismissal should be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization, or respectively, with the prior consent of the higher elected trade union body.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (paragraph 27 of the Resolution).