Collection of dismissal. Disciplinary sanctions: types and application. Can an employee be fired for misconduct?

If an employee violates labor discipline, and even more so repeatedly, the employer may use termination as a last resort. employment contract. Dismissal for can be applied to employees whose harm to the work process or the image of the enterprise is obvious. The rules for dismissal of employees on disciplinary grounds are quite strict and their violation can become critical for the employer.

Is dismissal for disciplinary action permissible - article of the Labor Code of the Russian Federation and laws

Regulations labor law imply mandatory compliance with the rules of labor discipline on the part of employees and employers. Considers issues related to this aspect in the legal field, mainly the Labor Code of the Russian Federation. Section VIII of the Labor Code of the Russian Federation is devoted directly to the concept of labor discipline, as well as disciplinary responsibility. However, the issues of dismissal for disciplinary sanctions require the use of various standards of the Labor Code of the Russian Federation, including those directly devoted to dismissals. In general, the following standards affect the methods, methods and procedure for considering such punishments:

• Art. 77 of the Labor Code of the Russian Federation. This article defines a general list of possible reasons for the dismissal of employees.
• Art. 81 of the Labor Code of the Russian Federation. The aforementioned article deals with situations in which the termination of a relationship initiated by the employer is carried out. Dismissal for a disciplinary offense is one of those.
• Art. 127 of the Labor Code of the Russian Federation. It regulates the procedure for payments upon dismissal in all cases of dismissal, without exception, regarding vacation days not used in the labor process.
• Art. 140 of the Labor Code of the Russian Federation regulates wages in the event of dismissal of an employee.
• Art. 189-195 of the Labor Code of the Russian Federation regulate the concept of labor discipline and provide mechanisms for imposing disciplinary action, their consequences and the course of action in case of committing disciplinary offenses by workers.
• Art. 261 of the Labor Code of the Russian Federation determines the procedure for employees, as well as employees caring for children who have not reached the age of 3 years.
• Art. 269 ​​of the Labor Code of the Russian Federation regulates the dismissal of underage employees.

Dismissal as a measure of disciplinary action for misconduct

Article 81 of the Labor Code of the Russian Federation provides for the possibility of dismissal as a disciplinary sanction. Also, dismissal is considered as one of the varieties of methods of disciplinary action for the employer by the provisions of Article 192 of the Labor Code, where termination of an employment contract for violation of discipline is permissible. However, the main restrictions intended for use are still set out precisely in Art. 81 of the Labor Code of the Russian Federation.

Not every disciplinary violation or misconduct can serve as grounds for dismissal as a disciplinary measure. Directly for a single case of misconduct, termination of an employment contract is provided only in situations considered in paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Only gross misconduct can be attributed to the grounds for this dismissal for a single action. These include the following illegal actions of the employee, which do not depend on the internal regulations or standards of the enterprise:

• It includes situations when a worker, without a valid reason, was absent from the workplace and did not perform work duties for four hours of one day or one shift in a row. That is, if an employee appeared at the workplace, at least for a short moment, which made his time of lasting absence less than the indicated period, he cannot be dismissed on this basis. The presence of a good reason allows the employee to avoid dismissal or subsequently reinstate at work in a judicial proceeding.
• Appearing at work in a state of intoxication. Dismissal in such a case is legal if it was carried out in full accordance with established procedures. In addition, there are many exceptions that allow an employee to challenge this dismissal. For example, employees cannot be dismissed for this reason without a proper evidence base, which most often can be a medical examination. But there is also the possibility of their dismissal without a medical examination if there is evidence of intoxication. However, if intoxication was due to the working environment - exposure harmful substances, violation of safety regulations, the employee cannot be dismissed for him.
• Disclosure of secrets protected by law. If an employee who, by virtue of his job duties, has access to a legally protected secret, for its disclosure he can be not only brought to administrative or criminal liability, but also dismissed from work if there is evidence.
• Theft or theft of material assets at the place of work or during the performance of official duties. In the event that an employee has committed theft - both of the property of employers, and of colleagues, clients, third parties or the state during work, he can be dismissed for the aforementioned misconduct with certain restrictions. In particular, dismissal can be made only on the basis of an appropriate court decision recognizing the employee as a criminal or delinquent.
• In case of violation of labor protection requirements, which entailed or could entail the risk of causing death or serious bodily harm to other persons during the performance of work duties. A specialized commission should establish the fact of such violations.

The employer is obliged to fully comply with the dismissal procedure, which is quite complex. In some cases, disciplinary liability in the form of dismissal may be applied to an employee along with administrative or criminal. For reasons of any other one-time violations of discipline, the employee cannot be dismissed.

Dismissal in case of violation of discipline by an employee on the above points is not mandatory. This is only the right of the employer, and not his direct obligation.

Disciplinary action in the form of dismissal for several offenses

In addition to the circumstances that allow dismissing an employee for a single violation of the discipline established at the enterprise, labor legislation also allows termination of employment contracts for other misconduct, in the event of their repeated commission or in the presence of disciplinary sanctions previously applied to the employee.

A disciplinary sanction against an employee is considered to be present within one year from the moment the misconduct was committed. After this period, the employee is considered not to have disciplinary sanctions and cannot be dismissed on the grounds that provide for repeated violations of discipline. Also, the duration of the penalty can be reduced at the initiative of the employer.

Disciplinary violations that allow dismissal in the presence of other penalties on the employee include all cases of failure by him to fulfill his labor duties without good reason for it. At the same time, the legislation does not exempt the employer from the need to carry out all procedural measures to present a penalty to the employee and the appropriate registration of dismissal.

Rules for dismissal of an employee on disciplinary grounds

As mentioned above, it depends on how the dismissal procedure is carried out from a procedural point of view, to what extent it will be possible to rebut the dismissal and reinstate the employee with claims to the employer. The current rules for the dismissal of an employee on disciplinary grounds provide for the following procedure:

1. Obtaining information about the commission of a disciplinary offense. Such information may be communicated to the employer in writing or orally by other employees of the enterprise, customers, government officials or third parties. Also, the basis for a subsequent audit and possible dismissal of an employee may be an entry in the book of complaints, and other sources of information.
2. Drawing up an order on the formation of a service commission. The service commission for the investigation of disciplinary offenses is drawn up in case of violation by the employee of labor protection rules, causing material damage to the employer, theft or secrecy. In the case of other disciplinary offenses, its compilation is optional.
3. Evidence collection. The commission by the employee of the fact of violation of discipline, the presence of his guilt in the misconduct, intent and the causal relationship between the violation and the guilty behavior of the employee must be documented. Evidence may be complaints from customers, testimonies of other employees, technical means records at the enterprise or outside it and other evidence.
4. Demand from the employee for an explanatory note. The employee should be given the right to explain his misconduct. A notice of request for an explanatory note should be provided to the employee for the preparation of an appropriate act on the notice, signed by two witnesses. If the employee is not notified, or an act is not drawn up to refuse to provide an explanatory note, the dismissal can be challenged in court.
5. Issuance of an order or other order on disciplinary action. After establishing the fact of a disciplinary sanction, the employer issues its own order on the application of a disciplinary sanction to the employee. This information is recorded in normative documents entrepreneur.
6. Depending on the severity of the disciplinary offense, the number of violations of discipline and their own desire, the employer may, on the basis of a disciplinary order, issue an order to dismiss the employee. With such an order, the employee is familiarized with the signature and drawing up of the act, and the dismissal is carried out on the day the penalty is applied.
7. After dismissal, even for a disciplinary offense, the employer is obliged to pay all previously unpaid wages employee. In addition, the employee must be compensated for unused vacation days. Payments are made on the day of dismissal.
8. The employer issues the employee a work book with a record of dismissal under Article 81 of the Labor Code of the Russian Federation, indicating the paragraph and subparagraphs on disciplinary action.

Depending on the specific type of penalty, it can be drawn up in various ways and have its own separate procedural features. Above, the main algorithm of actions was outlined, which the employer, accounting department and personnel officers can follow.

Separate nuances of dismissal for a disciplinary violation and restrictions

Employers should be extremely careful about the application of disciplinary sanctions and, moreover, the dismissal of employees in connection with them. In particular, the legislation defines certain categories of employees who cannot be dismissed on these grounds.

First of all, pregnant women should be attributed to them - regardless of the specific misconduct committed, a pregnant woman cannot be fired for disciplinary violations, including gross ones. But workers with children under 3 years old are not protected by law in this case - if there are disciplinary sanctions, they can be fired without restrictions, although it protects them from a number of other reasons for terminating the contract. The dismissal of minors is carried out with one restriction - the labor inspectorate or guardianship and guardianship authorities must be notified of this.

Many may think that an employer can fire for any reason: both for a minor minor offense and for a serious offense. Consider what exactly is the basis for dismissal and how to properly apply a disciplinary sanction in the form of dismissal.

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Reason for application

A disciplinary sanction in the form of dismissal is a type of punishment that consists in terminating the employee's activities and terminating the employment contract with him. The reason for this may be the systematic failure to official duties or gross violations of labor discipline.

And if the manager can use other penalties, for example, reprimands or remarks, at his own discretion, then clear grounds are prescribed for termination of employment.

Article 81 in the Labor Code of the Russian Federation just lists what can serve as a reason for terminating the contract as a disciplinary sanction.

According to, the reason may be:

• Repeated non-performance by an employee of his duties without good reason;
• Absence from the workplace for more than 4 hours without good reason;
• Disclosure of trade secrets;
• Theft in the workplace;
• Violation of labor protection requirements;
• Committing immoral acts on the part of an employee;
• Appearance at the workplace in a state of alcoholic or drug intoxication, etc.

How many disciplinary actions are required before an employee can be fired? If the violation is not gross and did not entail unpleasant consequences for the organization, then the employee is first warned about the possible consequences for him.

After several systematic warnings, the manager has the right to dismiss the employee. In case of gross violation, termination of the employment contract follows immediately.

Termination of the contract as a punishment can be applied not only to ordinary employees, but also to higher management:

• the head of the organization;
• Deputy directors;
• Accountants.

All grounds that may lead to dismissal must be documented and supported by the testimony of witnesses. If the employee can prove his innocence, the previously applied measures should be canceled.

Legal and illegal dismissal

Disciplinary action in the form of dismissal is a rather serious step for the head of the organization. Therefore, in order to do everything legally, it is necessary to comply with the norms and rules of the law.

The following mistakes are made quite often:

1. Missing or incorrectly drawn up those documents that entail subsequent dismissal;
2. Application of punishment during the period when the employee is on vacation or sick;
3. The employer does not issue a work book in a timely manner;
4. The employer violates all established deadlines when a disciplinary sanction may be applied;
5. Upon dismissal, all payments and compensations established by law are absent;
6. The initial reprimand was given informally, that is, there was no written order to apply the punishment;
7. The employee was dismissed for violation of labor discipline, despite the fact that he had a documented good reason;
8. Application to one employee of two different penalties for one violation.

Therefore, in order to dismiss an employee for committing a misconduct in the workplace, mere desire and the presence of vague evidence are not enough. Clear evidence is needed.

If, with the above errors, the employee was nevertheless dismissed, then such an action may be declared illegal in court.

In this case, the employer may be fined, and the employee may be compensated and reinstated in the workplace.

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Action algorithm

In order for the dismissal of the offending employee to be legal, and the manager then not to be responsible for his actions in court, the entire algorithm of this procedure must be followed.

Correctly apply dismissal as a disciplinary sanction as follows:

• An employee who notices a disciplinary offense must report it to higher management in writing;
• Senior management must:
  • Make all necessary efforts to ensure that this misconduct from a particular employee does not happen again;
  • Require an explanatory letter from the offending employee in writing;
• If the employee ignores the manager's request for a written explanation of the misconduct for several days, a document is drawn up refusing to draw up an explanatory note. This document must be signed by several persons;
• If the employee's guilt is proven and there is documentary evidence of this, you can draw up a dismissal order.

Also, the employer needs to remember when the dismissal of an employee for violation of labor discipline is considered legal:

1. One month. The period is considered from the day the misconduct was discovered, with the exception of those days when the employee was on vacation or on sick leave;
2. Six months. The period is counted from the day the offense was committed and can be extended up to 2 years if the violation was revealed during the inspection.

Provided that during the year the citizen no longer had disciplinary sanctions and repeated violations, the first punishment is automatically canceled. And we can assume that a person has no disciplinary sanctions.

Documenting

In order to comply with all the nuances of dismissal according to legislative norms, it is necessary to have properly executed documentation.

The following documents are required for compilation:

• employee in writing. This document is mandatory and its absence can serve as a weighty reason to challenge the dismissal process. In the explanatory note, the employee must indicate the reasons for the violation and whether there are good reasons not to consider the action a violation. An explanatory note is submitted within 2 days;
• . This document is drawn up after two days, which are given to the employee to write a written explanation;
• Act of infringement. The document must record the facts of violation of labor discipline by the employee, confirmed by several witnesses (these witnesses must put their signatures in this act);
• Dismissal order. The document is drawn up at the last stage of the procedure. It indicates the actual basis for the dismissal of the employee, as well as the misconduct itself that was committed. The dismissed person must familiarize himself with the order under the signature within 3 days. If the employee refuses to sign the document, it is necessary to draw up an appropriate act.

Depending on the violation committed by the employee, other documents may be needed:

1. Written testimony of witnesses;
2. from the citizen who recorded the violation;
3. Copies of internal documents of the organization, etc.

Thus, the more irrefutable evidence of a violation is collected, the more legitimate the dismissal will be.

sample order

There is no strictly established form of the dismissal order as a disciplinary sanction. Each organization can draw up its own form, using the basic rules established by itself.

As a basis, you can take any unified form of personnel order. sticking to overall structure constructing such documents, there is less chance that important details will be missed.

What is the validity period

Information on the duration of disciplinary sanctions is prescribed in Art. 194 of the Labor Code of the Russian Federation.

In our own words, we can say that if there were no claims against the employee within a year after the first disciplinary sanction, then it is automatically removed. That is, a personnel worker may not make any records. This means that the recovery period is one year.

When you leave, things are a little different. If a violation of labor discipline led to the dismissal of an employee, then an entry about this appears in his personal file, an appropriate order is issued, and an entry appears in work book.

Therefore, among legal organizations there was such a practice - after dismissal for violation of labor discipline former employee may apply to the committee labor disputes and if it is possible to change the entry in the labor.

But on the other hand, after dismissal, all disciplinary obligations to a particular employer cease, which means that such a penalty does not have a validity period.

Appeal

Regardless of what kind of disciplinary sanction an employee has received, he can appeal against it.

An appeal can be filed with one of the following authorities:

1. Commission on labor disputes;
2. Labor Inspectorate.

The law provides for the following deadlines for filing an appeal:

• three months if labor penalties issued in the form of a reprimand or warning;
• One month if the penalty resulted in dismissal.

An employee may file an appeal if:

• If the documents were executed improperly;
• If the deadlines for collecting documents and writing explanatory notes were violated;
• If the punishment was applied when the employee was on sick leave or on vacation;
• If the penalty was issued repeatedly for the same violation.

An employee of the organization has the right to write an application to one of the above-mentioned authorities. In it, he must indicate for what reason the penalty was applied, argue the unfairness of the punishment applied.

Based on such a statement, employees of the labor inspectorate will conduct an inspection personnel department organizations.

If such a check reveals that the dismissal was illegal, the employee will have to be reinstated and paid appropriate compensation. Writing an application to labor inspection or to a labor dispute committee does not deprive the employee of the right to file a lawsuit in court.

The dismissal of an employee from work is always an unpleasant event, especially if it happened at the initiative of the employer. The Labor Code defines it as one of the types of disciplinary action. Such punishment is applied to employees who seriously violated the internal labor regulations. But it is worth considering that the dismissal process has a number of features. Often subordinates do not know their rights and do not even realize that the leader violates them.

In this article, we will talk about why you can fire an employee and how to do it. In addition, we will consider the procedure for issuing punishment, as well as those cases when dismissal will be considered illegal.

Reasons for leaving an employee may include:

• Systematic failure to fulfill their duties;
• Without good reason;
• Regular delays;
• Disclosure of trade secrets;
• Theft at work or damage to property;
• Failure to comply with labor protection requirements;
• Committing an immoral act;

All of the above grounds are gross violations labor legislation. It is enough for an employee to commit it once so that the employer can apply a disciplinary sanction. In addition, it is possible to dismiss an employee for repeated failure to fulfill their labor duties. After several warnings, the employer may say goodbye to such an employee.

Application procedure

Dismissing an employee is not as easy as it seems at first glance. In order to apply dismissal as a form of disciplinary action, one must be guided by the laws and observe the features of this procedure. What is the right way to fire a violator?

• Require the employee to provide an explanation in writing;
• If there was no answer, draw up an act on the absence of explanations;
• from any three employees;

The most important thing when dismissing a subordinate is to require him to draw up an explanatory note. This is a very important stage, without which your further actions may be declared illegal. Give the employee 2 working days to do this. If you have not waited for a written explanation, you need to draw up an act of refusal.

The dismissal order, as a rule, indicates the reasons for the punishment, and also describes the misconduct itself. The employee must familiarize himself with it and sign it within 3 days after drawing up.

How to issue a punishment?

Finally, in order to correctly issue a disciplinary punishment, you need an order to dismiss an employee. It is quite simple to compile it, since the legislation does not provide for clear requirements for its form. but the document must contain:

• The name of the company. It is indicated in the upper right part of the order. Also write the legal address of the organization;
• Document number and date of issue. This item should be in the center of the document;
• Title. The document must have the name - "Order (order) on the termination of the employment contract with the employee";
• The date of termination of the contract and the date of dismissal of the employee;
• Information about the employee. Enter the name of the employee here structural subdivision and position;
• Reason for terminating the contract. Give the grounds for terminating the contract, as well as indicate the relevant legal norms;
• Information about the leaders of the organization. This part includes his full name, position and signature;
• Date of acquaintance of the employee with the order and his signature.

As a rule, the order is drawn up in a single copy. However, at the request of the employee, the manager is obliged to provide him with a copy of this document or draw up another original, certified by signature and seal. Gather as much evidence of employee violation as possible labor order. So, in addition to the explanatory and the order itself, which we mentioned earlier, the following documents will be useful to you:

• Reporting note;
• Act of violation committed;
• Commission decision;
• Written testimonies of witnesses;
• Memorandum on violation of labor discipline;
• Company internal documents.

Cases of illegal dismissal

As practice shows, many employers ignore the norms of the law, for example, they illegally dismiss subordinates from work. If an employee considers his dismissal unlawful, he can appeal it. So, the employee has the right to file a claim if:

• The dismissal order was drawn up improperly;
• When collecting documents, deadlines were violated;
• At the time of the order, the employee was on sick leave or on vacation;
• This reason for dismissal is not provided for by the Labor Code;
• The manager cannot explain the reasons for the dismissal.

First you need to try to resolve the dispute out of court. For example, the victim can apply to the labor dispute commission or. The inspector is obliged to consider the claim within 10 days, and then send the victim a written notice of the decision.

Also, the dismissed employee has the right. During the trial, the employer must prove the legality of their actions. As evidence, he can use written documents or testimonies of witnesses.

Aida Ibragimova, head of the personnel department of KSK group

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.

In almost all organizations, there are employees who do not cope well with their duties: they are often late, do not meet the deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss's verbal remarks do not work, it is necessary to apply disciplinary sanctions: a remark, a reprimand, an extreme measure - dismissal.

In Art. 81 Labor Code The Russian Federation indicates the reasons why the contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of his labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

Next, we will consider in which cases an employee can be dismissed for a systematic violation of labor duties, what conditions are important to take into account and how to competently draw up a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misdemeanors for which you can be fired under the article

Dismissal under the article is possible if the employee performs actions that are prohibited by the employment contract, job description, local regulation, employer's order, labor legislation and other regulatory legal acts containing the provisions labor law, or vice versa, if the employee does not perform the actions provided for by these documents.

Paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts Russian Federation of the Labor Code of the Russian Federation" such violations include:

Absence of an employee without good reason at work or workplace;
- Refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure for labor standards, since by virtue of the employment contract the employee is obliged to perform the labor function determined by the employment contract, to comply with the internal labor regulations in force in the organization;
- Refusal or evasion without good reason from medical examination of workers of certain professions, as well as refusal of an employee to pass work time special education and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

This list is given in the resolution of the Plenum of the Armed Forces of the Russian Federation and, of course, is not exhaustive. Such violations include any non-performance or improper performance by an employee without good reason of their labor duties. When dismissed for repeated failure to perform labor duties, the employer must have a clear position and irrefutable evidence of the employee's guilt. The obligation to provide evidence of the legality and validity of the application of a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, is assigned to the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631 / 2015).

Conditions required for dismissal

Prior to the application of a disciplinary sanction in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. The requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, was familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often complaints are received from clients that their employees do not comply official duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation in line with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The presence of an outstanding disciplinary sanction from the employee

A disciplinary sanction or remark must not be withdrawn ahead of schedule and its validity period must not expire (one year from the date of issuance of the order to apply the sanction). A disciplinary sanction can be issued as a remark or as a reprimand. For dismissal, one outstanding disciplinary sanction is sufficient, for the second one can already be dismissed. If an employee has several disciplinary actions, then this will strengthen the position of the employer, as it indicates that the employee was given a chance to correct. In this case, dismissal is an extreme measure, because previous disciplinary sanctions on the employee did not work.

3. The severity of the misconduct and the circumstances of its commission

In accordance with clause 53 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, in the event of a dispute, the employer will need to provide evidence indicating that:

- the employee has committed a disciplinary offense;

- when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee, his attitude to work, were taken into account.

This means that the offense must be proportionate to the punishment. It is impossible to apply a disciplinary sanction in the form of dismissal for an employee being late for 15 minutes if there were no complaints about the work of the employee earlier. It is also forbidden to apply several disciplinary sanctions for the same act. For example, it is impossible to reprimand an employee for one delay and fire him for the same. The behavior of the employer will be unlawful if he “accumulates” the employee’s lateness and on the same day announces a reprimand and dismisses the employee.

4. Terms of application of a disciplinary sanction

A disciplinary sanction may be applied within one month from the day the misconduct was discovered and six months from the day it was committed (according to the results of an audit of financial and economic activities or an audit - no later than two years from the date the disciplinary misconduct was committed). The date of discovery of the misdemeanor is the day when it became known that the misconduct was committed.

Please note that the monthly period for the application of a disciplinary sanction does not include the time the employee is sick, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation).

The procedure for imposing a disciplinary sanction

Dismissal for repeated non-fulfillment of labor duties requires strict adherence to the procedure. Consider what documents need to be issued:

1. Memorandum on non-fulfillment of labor duties

The misconduct of the employee must be recorded by the immediate supervisor in a memorandum addressed to CEO. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the application of a disciplinary sanction.

2. The act of committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a specialist in the personnel department. The employee must be familiarized with the act against signature.

3. Notification of the provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations were requested, such a notice must be drawn up in writing and handed over to the employee against signature. In case of refusal to receive the notification, it must be read aloud to the employee and an act of refusal to receive the notification should be drawn up.

If, after two working days from the date of requesting an explanation from the employee, he did not provide it or refused, then an act is drawn up. If there is an act and a document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Consideration of the opinion of the representative body

Dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of the employment contract with the employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, one should be guided by the general rules for dismissal. It is necessary to draw up the following documents: an order to terminate the employment contract, a note-calculation, a work book, an employee's personal card.

Case Study

A client approached us for a personnel audit. As part of the audit service, we also advise clients on all issues related to the application of labor law. One of the employees of the company was a single mother and "actively" used it. When checking the personal file of an employee, we found a large number of memos about her failure to fulfill her job duties. Previously, the client tried to reduce the employee, but in response, she filed a complaint with the labor inspectorate and went to court (although the employment contract was not terminated). The position of the employer was losing, since it is impossible by law to dismiss a single mother, and the procedure itself was framed incorrectly.

We advised the client to issue an order to suspend the dismissal of the employee, as well as to notify that her position will be retained. Despite this, the issue of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the employer's comments, she used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace before the due date, arbitrarily without warning went on vacation.

Conducting a personnel audit showed that the client's company had serious violations of personnel records and many mandatory documents were missing, as a result of which it was impossible to file a claim against the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to a problem employee:

Draw up a detailed job description for the sales manager, which should describe all the duties and indicate to whom the manager reports;
- establish in the job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales targets to be met by all sales managers.

Only upon approval and familiarization of the employee with all the specified personnel documents possible disciplinary action. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary sanctions were drawn up for the employee when she committed the third misconduct - the dismissal procedure under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. An employee asked for an opportunity to quit own will, because I did not want such an entry in the work book. The employer went to meet her, and the employment contract was terminated.

Dismissal as a disciplinary sanction is a kind of punishment, which consists in termination of an employment contract with an employee for systematic and gross failure to fulfill their duties.

Unlike other disciplinary measures (for example,), which the employer can apply at its discretion, the grounds for dismissal as a disciplinary sanction are clearly enshrined in legislation (you can find out what types of disciplinary sanctions exist from).

Since such a measure is most serious use it for no good reason it is forbidden.

The grounds for the application of dismissal are listed in. In accordance with paragraphs 5-10 of this article, they include several types of violations of discipline.

Repeated neglect of their duties, avoiding their implementation.

2. After receiving this information, the manager must:

• make every effort to ensure that the misconduct or its consequences are stopped;
• demand a written explanation from the employee.

3. If in due time the employee does not bring the last document, on this fact, a special one is drawn up from giving a written explanation (signed by several persons).

4. Drawing up a dismissal order - in the event that the employee’s guilt is fully proven and there are appropriate documentary evidence, his punishment is documented.

It should be remembered that for dismissal on such a basis, there is a legislative set time, during which the measure is legal. This period is:

If during one year since the application of the disciplinary sanction, there have been no repeated violations by the employee, the first punishment too automatically canceled. That is, it is assumed that the employee does not have disciplinary action.

We talked in more detail about the algorithm for dismissing an employee on the basis of a disciplinary sanction for absenteeism.

Documenting

The availability and correct execution of all necessary documentation is an important condition for dismissal. When carrying out this procedure, it is mandatory to draw up the following documents:

• . This document is mandatory during the dismissal procedure and its absence is often grounds for contestation this type of punishment. In the explanatory note, the employee must indicate for what reasons he committed the identified violation and whether he has good reasons for committing it. For the preparation of the document provided two days;

The employee is not recommended to indicate in the document those facts that the employer can easily correct before litigation(if he will). There is a risk that all the necessary changes will be made to the existing instructions, and then the employee will no longer be able to prove his case.

• an act of refusal to give explanations (see sample above). It is compiled only after the expiration two days provided to the employee for giving written explanations;
• dismissal order (see sample above). This document is being prepared at the final stage procedures. The order must indicate specific basis on which the dismissal occurs, as well as the misconduct committed by the employee. After the publication of the document within three days the dismissed person must familiarize himself with it (under signature). In case of refusal to sign the order, it is also necessary to draw up an appropriate act;
• . This document captures the presence of a specific violation on the part of the employee (for example, absence from the workplace or being under the influence of alcohol). The act specifies detailed circumstances cases (time, place, information about the guilty employee), and at the end he signs several witnesses.

In each individual case, it may be necessary other documents: written testimonies of witnesses, memos from persons who discovered the violation, copies of internal documents of the enterprise (work schedules, job descriptions etc.).

How more supporting documents will be collected by the employer, more legitimate there will be a dismissal.

Upon detection serious disciplinary offense on the part of the employee, the employer in some cases has the right to apply such a sanction as dismissal.

For these actions to be legal, the procedure for imposing a penalty of this type must be carried out in compliance with all the requirements established for this.