Article 81 is the termination of labor relations at the initiative of the employer. In accordance with it, dismissal can be divided into several separate situations. And they have the right to affect any employee, regardless of what position he occupies.

basic information

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

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

It's fast and FOR FREE!

Many citizens believe that with the help of this article, the company has the right to get rid of any objectionable employee. But in practice this is far from the case. An entrepreneur has the right to become, but only if he ceases his activities. But before being fired, he must follow a certain algorithm of actions.

He undertakes to notify all employees of the proposed date of dismissal. And you need to do this two months before this date. The employee has the right to dismiss before the due date, if he gives written consent to this action. The same article stipulates the possibility of dismissal of an employee who does not correspond to the position held. For example, the reason for terminating an employment relationship may be an insufficient level of qualification of an employee.

In accordance with the above article, when dismissing a company for reduction, the company must take into account the main points:

1. before dismissal, the employee must be offered a different position or duties that are appropriate in terms of salary and qualifications;
2. reduction can be made after certification;
3. All job requirements are fixed on paper.

It is worth remembering that the employer has the right to offer a vacancy even with a lower qualification and salary. It is not uncommon for employers to offer a vacant position with a move to another area. The management is not obliged to offer the employee an increased salary.

The article also says that the company has the right to dismiss an employee if he repeatedly violates obligations. That is, this article is affixed in the work book. But at the same time, the company undertakes to correctly comply with the dismissal procedure and the rules under this article.

If a month has already passed since the moment of the offense, then the company has no right to dismiss him. It is also considered a condition that the employee must commit an offense no later than 12 months. from the last. In order to avoid a conflict situation, all obligations must be prescribed in the labor instruction.

Definitions

Dismissal under article 81 This is dismissal at the initiative of the employer.

Order- This is an internal document that is based on a statement or memorandum. Published in 2 copies.

Legislation

This issue is considered by the article of the Labor Code.

This is where it says:

1. dismissal;
2. dismissal;
3. dismissal at the initiative of the employer.

Dismissal procedure

Labor legislation allows you to designate benefits, guarantees, employment conditions. This allows you to provide correct conditions and a decent salary. Also, the legislation provides the employee with confidence in the future and does not allow dismissing an employee without a reason. That is why, often the Labor Code takes the side of the employee than the employer.

All the grounds on which an employer can dismiss an employee are spelled out in article 81 of the Labor Code of Russia. It is in this article that situations are considered that can affect almost every employed person. A separate paragraph includes management and accountants, as well as citizens who are involved in the education of minors.

In fact, the article allows you to get rid of an unnecessary employee. But in practice, you can see that it is not as easy as it seems.

Company liquidation

The 1st paragraph of the presented article is devoted to. It can also be attributed to an individual entrepreneur who decided to end his activity. In these situations, the employer may initiate the termination of the employment relationship.

This does not mean at all that an employee at one fine moment may be left without money and without work. The company undertakes to notify its employee of the upcoming dismissal two months before the planned date of dismissal. If an employee performs his duties fixed-term contract, then such a statement is put forward two weeks in advance.

It is possible to dismiss an employee before this date, if the latter agrees to such a decision. And on the last day, the organization pays all the due amounts and additionally severance pay in the amount of average earnings.

Also, the employee receives compensation within 2 months. in the amount of average earnings. If this is an employee of the Far North, then he has the right to receive an average monthly salary for 3 months. But until a new job. Then all payments stop.

A similar procedure is expected when reducing the number of employees or staff positions. The only difference is the offer of other free vacancies that are available in the company. It is possible to dismiss an employee only in that situation, if not one of the offered vacancies does not satisfy him.

Rules for dismissal under paragraph 3 of Art. 81

The article allows you to dismiss an employee if he does not correspond to his position. For example, does not fulfill its obligations or does not have sufficient knowledge in this area.

But there are quite a few features here:

1. the employee must be offered other vacancies if available;
2. it is possible to terminate the employment relationship only based on the results of the audit;
3. All requirements must be spelled out in job description.

It should be understood that if an employee agrees to a new vacancy, then it may involve lower qualifications and wages. In some situations, this is a move to another city.

The company is not obliged to a more highly qualified position, especially to raise wages. Certification is supposed only for exceptional categories of citizens. For example, it is often used for bosses, a teacher. At the enterprise, certification is assumed by the Regulations of internal certification.

If an employee decides to defend his rights in court, then it is necessary to provide not only the results of certification, but also other testimonies.

4 paragraph of article 81

If the organization undergoes some significant changes, then employees may be fired. This applies mainly to changes in ownership. If it changes, then it has the right to replace employees in key positions. For example, management or chief accountant. This action can be completed within 3 months. after the transfer of ownership.

But under the article, the owner has the right to take away one or more employees.

Dismissal under article 81 paragraph 5

The fifth paragraph suggests that it is possible to dismiss an employee for failure to fulfill obligations, especially if there were at least one violation. But the employer must document each step, otherwise it can result in significant fines.

That is, in the event of a primary violation, the company draws up a memorandum and requires a written explanation from the employee.

Upon receipt of the statement, the company must verify that there is no good reason. After the trial, you can draw up an order to impose a penalty. In this case, the penalty can be of various types, if it is specified in the collective agreement.

It is worth remembering the established periods of time in labor legislation. Penalties of this type may be imposed no later than one month after the misdemeanor. Otherwise, it will be illegal. Without fail, the second offense committed must be valid for no more than a year.

It is worth remembering that all outstanding obligations must be recorded in writing, for example, in the job description.

Violations of the rules 6 paragraph 81 of article of the Labor Code of the Russian Federation

If there is a gross violation, then the employer has the right to dismiss the employee without waiting for a second misconduct.

These serious violations include:

1. alcoholic and immoral behavior;
2. absenteeism;
3. theft and disclosure of personal information.

The situation involves a written fixation of the right to violate and draw up an act. The employee is required to provide a written explanation of the misconduct. Validity period - 2 days. If good reasons are not provided, the company may proceed to dismiss the objectionable employee.

The seventh point involves dismissal due to loss of management confidence. This applies to financially responsible persons. For dismissal, a good reason and solid evidence of guilt will be required.

There is also a term for dismissal - a month from the date of the right of violation. Often disciplinary fines are applied to such employees.

Item 8

The article involves the dismissal of an employee if he is a teacher or educator and at the same time commits an immoral act.

Item 9

This article assumes or if they caused significant damage to the property of the company. Management is obliged to comply with the legal framework and internal rules prescribed in regulations.

The fact of damage must also be documented. And the dismissal itself must be made within a month after the day of the violation.

Article of the Labor Code of the Russian Federation 81 paragraphs 10 and 11

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-fulfillment by an employee without good reason of labor duties, if he has disciplinary action;
6. single gross violation worker duties:
   • 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) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
   • e) a violation by an employee of labor 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;
8. 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 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 of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to loss of confidence to the employee from the side 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 at the conclusion of employment contract;
13. has lost its power. - Federal Law No. 90-FZ of June 30, 2006;
14. stipulated by the employment contract with the head of the organization, members of the collegial executive body organizations;
15. in other cases established by this Code and other federal laws.

The procedure for conducting attestation (paragraph 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 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 are committed by the employee outside the place of work or at the place of work, but not in connection with the performance of labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the event of liquidation of an organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during his 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 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 the event of gross violations of the law committed during its creation, if these violations are of an irreparable nature, 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 in 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 can 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 RF Armed Forces dated 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 is considered to have 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, the court, as a result of his recognition as insolvent (bankrupt), in connection with the expiration of the certificate of state registration, refusal to renew a 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 in leaving at work is given to: 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 an industrial injury in this organization or Occupational Illness; 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.

To confirm more highly qualified of an employee, in addition to the level of education, experience and knowledge of the specifics of work, advanced training by the employee, the presence of additional qualification characteristics(proficiency in one or more foreign languages, ability to work on a computer). The personal qualities of the employee can also be taken into account (sociability, goodwill, a sense of responsibility, the ability to quickly navigate in non-standard situations, etc.). 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 preferential 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 the 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 business qualities the employee is 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 dismissal under clause 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 commentary 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 clause 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 for 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 through 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 date of dismissal is the last day of work.

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 in work time in the place of performance of labor duties in a state of alcoholic, narcotic or other toxic intoxication. 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 these 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 non-departmental 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 Supreme Court 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 by 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 directly servicing 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 the 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 the specified basis, it is allowed to dismiss only those employees who are engaged in educational activities, for example, teachers, lecturers educational institutions, masters industrial training, educators of children's institutions. 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 RF Armed Forces dated 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.

Leaders of others structural divisions organizations 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, labor contracts with heads of organizations provide for: failure to comply with the decision general meeting shareholders; causing losses to the managed enterprise, society; allowance by the manager due to inefficient work for more than 3 months of delay in payment to 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 extra-budgetary 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. real estate, 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 it 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 the fact that the employee 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).

Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS

Chapter 19

Section VI. PAYMENT AND REGULATION OF LABOR

• Chapter 20. GENERAL PROVISIONS
• Chapter 21. WAGES
• Chapter 22

Section VII. WARRANTY AND REFUND

• Chapter 23. GENERAL PROVISIONS
• Chapter 24
• Chapter 25
• Chapter 27
• Chapter 28. OTHER GUARANTEES AND COMPENSATIONS

Section VIII. WORK REGULATION. WORK DISCIPLINE

• Chapter 29. GENERAL PROVISIONS
• Chapter 30. DISCIPLINE OF LABOR

SECTION IX. EMPLOYEE QUALIFICATION, PROFESSIONAL STANDARD, TRAINING AND ADDITIONAL PROFESSIONAL EDUCATION OF EMPLOYEES (as amended by Federal Law No. 122-FZ of May 2, 2015)

• Chapter 31. GENERAL PROVISIONS
• Chapter 32

Section X. LABOR SAFETY

• Chapter 33. GENERAL PROVISIONS
• Chapter 34. LABOR PROTECTION REQUIREMENTS
• Chapter 35. ORGANIZATION OF LABOR PROTECTION
• Chapter 36

Section XI. MATERIAL RESPONSIBILITY OF THE PARTIES TO THE EMPLOYMENT CONTRACT

• Chapter 37. GENERAL PROVISIONS
• Chapter 38
• Chapter 39

PART FOUR

• Section XII. FEATURES OF LABOR REGULATION FOR CERTAIN CATEGORIES OF EMPLOYEES
  • Chapter 40. GENERAL PROVISIONS
  • Chapter 41
  • Chapter 42
  • Chapter 43
  • Chapter 44
  • Chapter 45
  • Chapter 46
  • Chapter 47
  • Chapter 48
  • Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES THAT ARE RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
  • Chapter 49
  • Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
  • Chapter 50
  • Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
  • Chapter 51
  • Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
  • Chapter 52
  • CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
  • Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (STAFF) (introduced by Federal Law No. 116-FZ of 05.05.2014)
  • Chapter 54
  • Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
  • Chapter 55

PART FIVE

• Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
  • Chapter 56. GENERAL PROVISIONS
  • Chapter 57
  • Chapter 58
  • Chapter 59
  • Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
  • Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
  • Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW

PART SIX

• Section XIV. FINAL PROVISIONS

Article 81 of the Labor Code of the Russian Federation. Termination of the employment contract at the initiative of the employer

//=ShareLine::widget()?>

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;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

(Clause 3 as amended by Federal Law No. 90-FZ of June 30, 2006)

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

5) repeated non-fulfillment by the employee without good reason of labor duties, if he has disciplinary action ;

6) single gross violation worker duties:

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);

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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

(clause "b" as amended by the Federal Law of 30.06.2006 N 90-FZ)

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;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

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 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 provide knowingly incomplete or unreliable information about income, expenses, property and obligations of a property nature of his spouse (wife) 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 (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 a loss of confidence in the employee on the part of the employer. The concept of "foreign financial instruments" is used in this Code in the meaning defined by the Federal Law of May 7, 2013 N 79-FZ "On the prohibition of certain categories of persons to open and have accounts (deposits), keep cash cash and values ​​in foreign banks located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments";

(Clause 7.1 was introduced by Federal Law No. 231-FZ of December 3, 2012, as amended by Federal Laws No. 280-FZ of December 29, 2012, No. 102-FZ of May 7, 2013, and No. 505-FZ of December 28, 2016)

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) single gross violation 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;

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

When is layoffs legal?

To fire an employee due to layoffs, the employer must fulfill a number of conditions:

• he must prove the actual reduction in staff;
• exercise the pre-emptive right to retain the workplace, in accordance with article 179 of the Labor Code of the Russian Federation;
• to offer the employee another available job corresponding to his specialty and state of health;
• not earlier than two months before the dismissal to warn the employee, the corresponding warning must be signed by the employee;
• make a preliminary request to the union to obtain an opinion on the decision to dismiss an employee who is a member or leader of the union.

If at least one of these conditions has not been met, then the employee has the right to apply for reinstatement. Upon termination of the employment contract, the employer is obliged to make an appropriate entry in the work book and personal card, on the basis of which the severance pay will be paid and the average monthly earnings for the period of employment will be saved for two months.

When is dismissal due to inadequacy of the position held legal?

If, as a result of certification, it is revealed that the employee does not meet the requirements of the position held, the employment contract may be terminated. According to the letter of Rostrud dated March 6, 2013 N PG / 118061, such a decision can only be made on the basis of the conclusion of the certification commission. However, before dismissal, the employer is obliged to draw up a written offer for the employee with a list of existing similar vacancies in the enterprise. The employee must confirm by signature that he has read this document. If a suitable vacancy for the employee is not found, the employer issues a dismissal order.

Is it possible to fire an employee who has a minor child with a disability?

Employees with underage children with disabilities are protected by law from dismissal if he is the sole guardian of the child. According to article 261 of the Labor Code, the dismissal of such an employee at the initiative of the employer can only be carried out under paragraphs 1, 5, 6, 7, 8, 10, 11 of article 81 of the Labor Code. This means that the manager cannot dismiss an employee for inconsistency with the position held. Since he is obliged to offer another position in the enterprise in return. The same rules apply to single mothers who are raising a child under three years of age or who have several minor children.

Is it legal to fire an employee for not meeting the work plan?

The dismissal of an employee for failure to comply with the work plan is legal only if the procedure for making this decision has been fully complied with. That is, the employer must legally prove that the employee is not coping with his duties. For this, a special service check is carried out, and the employee writes explanatory notes. If the checks confirmed the correctness of the head, then he draws up the dismissal in accordance with paragraphs 5 or 6 of Article 81 of the Labor Code.

When is it impossible to fire for absenteeism?

Dismissal for absenteeism article 81 of the Labor Code of the Russian Federation in paragraphs. and clause 6 allows, in the absence of an employee at work, the whole day or the entire work shift. Also, absenteeism can be counted as absence from the place for longer than 4 hours in a row. An employee may be absent from work for a serious and weighty reason: something extraordinary has happened, because of which he will not be able to get into the service. So what are the reasons for the absence will not lead to dismissal? The Labor Code of the Russian Federation does not contain a special list of such reasons, but they can be identified by analyzing the legislation. So, an employee should not be fired if he provides evidence of his absence from the workplace for the following reasons:

• disability (illness);
• execution of state or public duties (for example, speaking as a witness in court) (Article 170 of the Labor Code of the Russian Federation);
• blood donation and honey. examinations related to this (Article 186 of the Labor Code of the Russian Federation);
• participation in a strike (except in cases of failure to fulfill the obligation to stop it) (Article 414 of the Labor Code of the Russian Federation);
• arrest;
• Emergency related to transport problems (for example, flight cancellation, accident);
• absence from work due to a delay in the salary for more than 15 days (with written notification of the management) (Article 142 of the Labor Code of the Russian Federation).

So, article 81 of the Labor Code of the Russian Federation provides for dismissal for absenteeism only if the employee does not have good reasons that he can confirm with a certificate or other document.

Dismissal for absenteeism

When an employee is dismissed under article 81, paragraph 6 of the Labor Code of the Russian Federation, management must follow a certain procedure. Prior to the direct application of a disciplinary sanction in the form of dismissal, it is necessary to take from the employee a written explanation of the reasons for his absence. The employee has 2 days to write an explanatory note. If an explanation is not provided within this period, the management draws up an act about this. Dismissal under Article 81, Clause 6 of the Labor Code of the Russian Federation will be lawful if the employee refuses to give written explanations of the reasons for his absence and cannot confirm them with documents. If an employee writes an explanatory note and gives the manager a certificate or a document justifying his absence, then the decision to recognize the reasons as valid remains with the management. The Supreme Court of the Russian Federation explains that the management of the organization must carefully assess the degree of importance of the reasons for the absence and apply the penalty that is commensurate with the employee's misconduct. If the management nevertheless dismisses the employee, despite the fact that he considers the reasons for his absence from work to be valid and provided explanations in time, he has the right to appeal such dismissal. In this case, the employee can file a claim with the district court at the place of work or residence. At the same time, the state duty is not paid to them, since the claim arises from labor. relations.

Dismissal due to fake sick leave

Answering this question, we can say more: a fake sick leave entails not only dismissal, but also liability under a criminal article. The sick leave form is an official document on the basis of which benefits are paid. It also serves as a justification for the absence of a person at the workplace. It is illegal to receive benefits on a fake document and present it as proof of your absence from work. There are many ways to distinguish a fake hospital form from a genuine one: a genuine document has a lot of distinguishing features. These are watermarks, a barcode, the color of the paper and the fibers of which it consists, the color of the ink that fills the sheet, etc. Providing a fake sick leave entails three different types responsibility: disciplinary, material and criminal. Article 81 of the Labor Code will be applied as disciplinary responsibility upon dismissal for absenteeism. Absence from work without justification is recognized as absenteeism and may result in dismissal if the employer manages to strictly comply with the procedure and terms for applying the penalty. False sick leave cannot be evidence of a valid reason for absence. And, therefore, even if the truant provides this fake document on time, the management has the right to apply the most severe penalty, relying on dismissal. As a liability for an employee who has presented a false document, the requirement to return the amount of disability benefits, if he managed to receive it, is considered. In case of refusal to return the money, the amount may be deducted from the RFP, but in the amount of not more than 20% of each payment. The rest of the debt is collected through the court. Plus, the employer may demand compensation for losses - for example, the cost of an examination. As a criminal liability when using a knowingly forged document, the norm of Part 3 of Article 327 of the Criminal Code of the Russian Federation is applicable. The degree of punishment varies: the violator can be sentenced to a fine, compulsory or corrective labor, or to arrest for up to 6 months. In order to bring the perpetrator to criminal liability, the leadership of the organization or the FSS of the Russian Federation (if they found a fake) contact the police department. Depending on the circumstances of the forgery of the document and the presence of a criminal purpose, other norms of the Criminal Code of the Russian Federation may be applied. So, if the sick leave form was forged independently, then part 1 of article 327 of the Criminal Code of the Russian Federation is subject to application, the punishment for which is stricter - you can be deprived of liberty for up to 2 years. If an employee expected to receive fraudulently cash payments, then Article 159.2 of the Criminal Code of the Russian Federation will apply, the fine for which is heavier and also provides for restriction of freedom up to 2 years. Thus, an employee's attempt to use a fake sick leave can lead to a lot of negative consequences for him. The minimum that can threaten for such a fake is a disciplinary sanction. Maximum - imprisonment for 2 years.

Is it legal to dismiss under paragraph 5 of article 81 of the Labor Code of the Russian Federation when an employee commits two misconducts on the same day?

All employees must necessarily observe labor discipline - obey the rules of conduct defined by the Labor Code of the Russian Federation, laws, local acts and labor. contracts. Violations of discipline are a misdemeanor for which management has the right to impose a disciplinary sanction on an employee (Article 192 of the Labor Code of the Russian Federation). There are three penalties: reprimand, reprimand and dismissal. Before applying the penalty, the management is obliged to take an explanatory note from the employee within two weeks. If the explanatory note is not written, an act is drawn up. It is important for the employer to have time to apply the penalty within a month from the date of discovery of the violation. Time of illness or vacation of the employee is not included in this period. The recovery order must be given to the employee for signature within three days from its issuance (meaning working days, not counting the time the person is absent from work). In case of refusal to read the order, an act is drawn up. Dismissal is the most severe form of disciplinary action. Work. the contract is terminated under part 5 of article 81 of the Labor Code of the Russian Federation if the employee repeatedly violates labor discipline. It is possible to dismiss an employee in case of repeated failure to perform labor duties and in the presence of a previously applied disciplinary sanction (for example, a reprimand). From the wording of this norm, it follows that the employee must already have a reprimand or remark, so that if he commits another misconduct, he can be dismissed under this article. It is worth clarifying that a disciplinary sanction is charged to the employee for a year, if they do not wake up, it is removed ahead of schedule (Article 194 of the Labor Code of the Russian Federation). Only one penalty can be imposed for each misdemeanor. If an employee commits two violations in one day, then he can receive two penalties at once - one for each of his misconduct. But since these penalties will come into force at the same time, the management does not have the right to dismiss the employee in this case. Dismissal is possible only if on the day of committing two violations of discipline, the employee already had a penalty in the form of a remark or reprimand.

Is it legal to dismiss a warehouse manager due to a loss of confidence if the reasons for the detected shortage are not identified?

According to paragraph 7 of Article 81 of the Labor Code of the Russian Federation, an employee who performs the maintenance of monetary or commodity values ​​\u200b\u200bcan be dismissed if his guilty actions give reason to the employer to lose confidence in him. If a warehouse employee is a financially responsible person, then if there is a shortage of goods, he falls under the grounds for such dismissal. However, dismissal under clause 7, article 81 of the Labor Code of the Russian Federation is a type of disciplinary sanction, and when it is applied, the management must strictly observe the norms of the Labor Code of the Russian Federation and the established procedure. It is possible to bring to recovery in case of non-fulfillment of labor duties and functions due to the fault of the employee. The guilt of the employee must be established and proven. It is not possible to justify the dismissal by the assumptions of the employer. Therefore, the very fact of detecting a shortage cannot indicate the commission of guilty actions by a particular employee. If the reasons for the shortage are not identified, the guilty actions are not established, it is impossible to dismiss a financially responsible warehouse worker in accordance with paragraph 7 of Article 81 of the Labor Code of the Russian Federation due to loss of confidence.

Can they be fired under part 3 of article 81 of the Labor Code of the Russian Federation in the absence of higher education?

The employer can initiate the dismissal of an employee if he does not correspond to his position due to insufficient qualifications (part 3 of article 81 of the Labor Code of the Russian Federation). Qualification is confirmed by the results of attestation. The very concept of “qualification” implies the level of knowledge and skills of an employee by profession. There is no mention of the employee's education in the specified norm, however, the presence of education is one of the factors that the certification commission evaluates. It is impossible to terminate the contract with the employee without grounds. The basis in our case are the conclusions and conclusions of the attestation commission. And such a commission evaluates the level of business skills of an employee, including the level of education. In 2012, Article 195.2 of the Labor Code of the Russian Federation was introduced on professional standards and the level of qualification required to engage in certain professional activities. But the requirements of Prof. standards are binding only if the relevant provisions are enshrined in local regulations. acts of a particular employer and in the job description of the employee. Thus, it turns out that dismissal due to lack of higher education is possible under certain circumstances. If prof. standards establish the need for higher education for work by profession, and at the same time, the provisions of the standards are supported by the regulations of the organization, then the employee may be dismissed for inconsistency with the position held. However, the attestation commission cannot be guided by prof. standards. If the company's documentation does not contain any requirements for the presence of higher education, then the dismissal of an employee under part 3 of article 81 of the Labor Code of the Russian Federation is unlawful. So, an employee can be fired due to a lack of education only if the requirements for the need for a university diploma in national professional standards and normative documents firms.

You will need

• - labor Code RF;
• - consultation of an experienced personnel officer;
• - Labour Inspectorate;
• - reports on work, testimonies of colleagues.

Instruction

First you need to figure out how a dismissal can be issued in general. The wording, laws, articles are different, and there are nuances. So, you can be fired "by", "by agreement of the parties", "due to staff reduction", "due to the liquidation of the enterprise", "under Article 81 of the Labor Code". Each of these cases has its own subtleties.

If you are offered to quit at will, the employer expects to get rid of you with little blood, that is, not to pay you what you are owed. "Dismissal for own will"- a wording that suits all employers without exception. Still, they pay exactly as much as you work out when you quit. If the employee does not want to sign the application, he may be offered "dismissal under the article."

If you intend to, offer the employer a dismissal "by agreement of the parties" and write down your conditions in the agreement. In a conversation, you can hint that you know how difficult it is to fire a person "under the article", and what weighty evidence your employer should have. It's great if you belong to a privileged category of citizens: you are pregnant, you are raising a child alone, or if you are a mother of many children. Then it's almost impossible to fire you.

If the employer does not agree to these conditions, you should remember if there were any violations and miscalculations in your work biography over the past month or two. What you should pay special attention to: you should not be late, the absence should be documented accordingly, the performance of duties should clearly comply with the employment contract you signed. Do not sign papers without looking, when sending on a business trip, receive travel certificate.

If you are fired due to a reduction in staff (clause 2 of article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer must give you advance notice of the termination, offer you another job, identify beneficiaries, report the reduction to the employment service, and pay you a severance pay of several salaries upon termination.

If they want to fire you due to the liquidation of the enterprise, you must also be warned about this no later than 2 months before the dismissal. You have every right to quit early, having received the salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties takes place in accordance with Article 77 of the Labor Code of the Russian Federation, clause 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with the employer. There is a written agreement that states when you will be fired and how much money you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You can be fired when the owner of the enterprise changes (Article 81, paragraph 4), if you are the general director, deputy CEO or chief accountant. You may be fired for inconsistency with your position (Article 81, paragraph 3). Then they should assemble an attestation commission for you, which will come up with a test task for you. Even if you can't handle it, they can't fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your labor obligations. Remember, in order to get fired, the violations must be regular and without good reason. In addition, you must have formal disciplinary actions.

You may also be threatened with dismissal for absenteeism or being late under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is possible only if you did not submit any documents why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles for which you can be fired are "Theft and embezzlement" and "Loss of confidence." They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you are still fired, you have every right to continue the fight. Within a month of being fired, you can sue your employer. You also need to contact labor inspection and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

note

1. If you did not come to work, be sure to confirm the validity of the reason for the absence.

2. Review your employment contract and job descriptions once again.

3. Don't be afraid to stand up for your rights.

Helpful advice

If you feel the clouds are gathering, document your every step and decision.
- Avoid disciplinary action.
- Eliminate delays.

Sources:

• How to properly dismiss an employee?

It's always frustrating to lose a job. And it doesn't matter why it happened. Someone gets laid off, someone is fired for some kind of professional or job inconsistency, someone applies for resignation himself. But time passes, and the search for another job begins.

You will need

• - summary;
• - transmittal letter

Instruction

Resist the temptation to feel sorry for yourself all the time. And don't let the guilt of losing your job get the better of you. It happens to almost everyone. Even if you are not the fact that this is always a fair decision on the part of the authorities. But let such thoughts remain in your head for only a short time. It's already in the past. The next step is to find a new location. This event should be taken very seriously. In other words, the search itself new job needs to be turned into a job.

Think about priorities and areas of desired work. You may need to broaden your search beyond just the profile of your previous specialty. Based on your experience, education, . If you cannot find permanent job, a good way out is to get a temporary job.

Prepare . If you have never compiled one, seek help from experts or look at samples posted on the Internet. A well-written resume that reflects all your professional skills can be a decisive factor for acceptance to a new position. If possible, take a cover letter or references from a previous job. You can negotiate and recommend you as a specialist if the need arises.

Look for work through job exchanges, job papers, Internet sites, employment services, and also take advantage of personal connections and acquaintances. In the event that it drags on, do not waste time: try to learn something new. Go to study and comprehend the basics of another specialty.

If you have been fired for some kind of misconduct or misconduct, this may have a negative impact on your new job application. But at the interview you can explain in more detail the reasons for the situation. You shouldn't talk about it beforehand. It is quite possible that it is in a new job that you will be able to show all your talents and abilities.

Related videos

Sources:

• job search site

According to the inconsistency of the position held, do not self-flagellate, analyze your work in the organization, you may have been lazy a lot, wasting your time, treated your work carelessly. Understand the reasons that caused such an attitude to work, perhaps you chose an inappropriate field of activity for yourself, or you were not satisfied with the organization of work in the company. Keep this in mind when looking for a job, ask questions that interest you immediately at the interview so that the next time the situation does not happen again. If you do not agree with the reason for which you were fired, go to court. But the employer cannot fire you without good reason. After the dismissal, rest for a few days, put your thoughts in order. If possible, contact to better understand yourself. As soon as you have a rest, start looking for a new job: write a resume, post it on job sites, study the labor market, respond to vacancies that interest you. Perhaps dismissal from your current job will serve as an impetus to radically change your field of activity, take care of your health or business. It is very important in such a situation not to withdraw into oneself, but to choose a goal and gradually achieve it.

Under current laws, it is the employee who is the more protected side of labor relations. And it is unlikely that he will be fired for a "far-fetched" reason. But the legislator still gives the employer the right to say goodbye to the employee - dismissal under article 81 of the Labor Code of the Russian Federation.

But there is an important condition: the manager can terminate the employment contract only for the reasons described in the Labor Code of the Russian Federation and Art. 81 of the Code (dismissal at the initiative of the employer). In order to apply the norm of the law, it will also be necessary to prove that there are grounds for dismissal under Article 81 of the Labor Code of the Russian Federation. All additional grounds can be divided based on the presence of the employee’s fault and its absence. After analyzing the situation and establishing the fact of violation of labor discipline, the employer dismisses under article 81 of the Labor Code of the Russian Federation, choosing the appropriate paragraph of the article.

Dismissed under Art. 81TC RF - the guilty actions of the employee are proven

It is important to understand that most paragraphs of Article 81 of the Labor Code of the Russian Federation (dismissal associated with the initiative of the head) can be applied to any employee, regardless of his status and position. And only on the basis of a few points can you terminate the contract with special categories of employees of the organization (director, manager, accountant (chief), etc.)

We will study in detail the grounds for dismissal under Art. 81 of the Labor Code of the Russian Federation, concerning the vast majority of workers.

Proven guilty actions of the employee:

1. Labor Relations can be ended with a person who has repeatedly failed to fulfill his duties and has some kind of disciplinary sanction. The basis for dismissal under Article 81 of the Labor Code of the Russian Federation will be clause 5. In order to prove the fact of violation of labor legislation, it is necessary to prescribe the relevant obligations in the internal regulations and in the employment contract. These include (based on Article 81 of the Labor Code of the Russian Federation - dismissal at the initiative of the head of the organization):

• a person is absent from the workplace without a good reason (documented);
• the employee refused to fulfill his duties, referring to changes (does not agree to them) of the internal regulations at the enterprise (Article 162 of the Labor Code of the Russian Federation);
• the employee refuses to undergo a medical examination;
• evades mandatory training in labor protection, operation of mechanisms, does not pass the relevant exams that are necessary for admission to work. Please note that it is on this basis that only a person who already has a disciplinary sanction (it is valid for 1 year) can be dismissed under Article 81 of the Labor Code of the Russian Federation on this basis. Another condition is the repeated proven violation.

2. Dismissal under article 81, paragraph 6 of the Labor Code of the Russian Federation is permissible in case of a gross violation official duties and labor discipline. These include:

• a proven fact that a person is absent from work for more than 4 hours on one working day or shift. Only such a fact (without a good reason) can be defined as absenteeism - a dismissal is issued under article 81 of the Labor Code of the Russian Federation;
• the fact was established (medical examination or testimony of witnesses) that the person appeared at the workplace in an altered state of consciousness. These include drug and alcohol intoxication, as well as toxic intoxication;
• there was a disclosure of a secret related to labor activity at a particular enterprise (commercial, state, official), which he could learn only by fulfilling his direct duties. In order to dismiss under article 81, clause 6 of the Labor Code of the Russian Federation, the following rules must be observed: earlier in local documents, a provision on trade secret(or other), as well as a list of classified data. It is mandatory to develop a provision on non-disclosure of secrets in labor contract with an employee.
• it is possible to dismiss an employee under Article 81 of the Labor Code of the Russian Federation (clause 6) who violated labor protection requirements and this fact led to an accident or catastrophe, an accident and other serious consequences.

3. You can terminate the contract with an employee who submitted false documents at the conclusion of the contract or announced deliberately false data regarding his person, work experience at another enterprise, etc. A dismissal is issued under paragraph 11 of Art. 81 of the Labor Code of the Russian Federation. "Fake" documents are falsified diplomas (information about education), work books, letters of merit, etc.

An important point is that the guilty actions of an employee are sometimes very difficult to prove, so the employer is obliged to document every fact. Draw up acts, involve witnesses, display (absenteeism) in the time sheet. Then the employee will not be able to challenge the dismissal under Article 81 of the Labor Code of the Russian Federation.

What are the grounds for dismissal under s. 81 of the Labor Code of the Russian Federation without the fault of an employee?

A person does not always violate labor discipline, but the head of the organization has the right to terminate the contract with him, even if there is no fact of guilty actions. For example, an employee does not correspond to his position - dismissal is allowed under article 81, paragraph 3 of the Labor Code of the Russian Federation. This situation is possible not only in case of insufficient qualification of workers. The reason can be considered a deteriorating state of health after an illness. But there is an important point here: employees often dispute dismissal under Art. 81 of the Labor Code of the Russian Federation, citing the opportunity to get rid of any objectionable person. In order to avoid litigation in the future, the employer is obliged to provide for such factors when terminating the contract due to the low qualification of the worker - it is imperative to conduct certification, provided:

• Dismissal under Article 81 of the Labor Code of the Russian Federation will be recognized as lawful if the enterprise has a provision on certification.
• The organization needs to create a special attestation commission, which, based on the results of the test, will determine the level of qualification of the employee.
• Certification cannot be carried out exclusively for an “objectionable” employee - it must be passed by all employees belonging to a particular category.
• Certification should not be “urgent” or for emergency cases - the provision must fix the period for its implementation (year, quarter, etc.).
• Dismissal under article 81 of the Labor Code of the Russian Federation, paragraph 3, is possible if, based on the results of certification, the fact of low (inappropriate) qualifications of the employee is proved - confirmed by the drawing up of an act.

Only by observing all these requirements of the legislator, you can legally dismiss an unqualified employee under Article 81 of the Labor Code of the Russian Federation.

The next reason to release a person from his position will be the liquidation of the enterprise or the complete cessation of activities - the norm of clause 1 of Art. 81 of the Labor Code of the Russian Federation.

It is also permissible to dismiss employees under Article 81, paragraph 2 of the Labor Code of the Russian Federation while reducing both the staff and the number of employees at the enterprise. Please note that in this case, you should definitely notify the person about the reshuffle 2 months before the dismissal and at the same time submit information about the termination of the contract to the local employment service and the trade union. The dismissal will pass legal, only if the algorithm is followed for this reason:

• Issuance of an order to reduce staff / headcount.
• Dismissal order for each employee.
• Delivery of notice.

At the same time, one should not forget that it is unacceptable to dismiss pregnant women and employees who are temporarily unable to work or are on legal leave under Article 81 of the Labor Code of the Russian Federation.

The procedure for dismissal under article 81 of the Labor Code of the Russian Federation

Termination of relations with an employee under the “article” is always a problem, and so that the employee does not have claims against you in the future, it is necessary to follow the established dismissal procedure under article 81 of the Labor Code of the Russian Federation. Due to the fact that different paragraphs of the article contain specific grounds, the procedure for dismissal may vary slightly.

For example, dismissal under article 81, paragraph 3 of the Labor Code of the Russian Federation requires mandatory certification and drawing up of an act. The document will contain information that the person has not "confirmed" the qualification - it will become the basis for terminating the employment contract. But before dismissal, the employer undertakes to offer the employee other vacant positions where the duties will correspond to his qualifications. It is acceptable to send an employee to a lower-paid job and even transfer to another area where there is work corresponding to low qualifications.

This must be done in writing, in case of refusal - to demand that this fact be recorded.

To issue a dismissal under Article 81, paragraph 6 of the Labor Code of the Russian Federation is allowed only with indisputable evidence of guilt. For example, if it is absenteeism, an act is necessarily drawn up, witnesses are involved. In the event that a person appears at work in a state of intoxication or under the influence of toxic or narcotic substances, a person must be offered to undergo an examination. If he refuses, witnesses will help, who will confirm his inadequate condition.

The employee is given 2 days to explain the misconduct in writing. After receiving the application, the boss examines the reason and may recognize it as disrespectful and initiate the process of terminating the employment contract.