P 2 Article 336 of the Labor Code of the Russian Federation comments. Selected grounds for dismissal of teachers

Article 336.1. Features of conclusion and termination employment contract with a researcher

Employment contracts for filling positions scientific workers may be concluded either for an indefinite period or for a period determined by the parties to employment contracts.

The conclusion of an employment contract to fill certain positions of scientific workers, as well as the transfer of scientific workers to the corresponding positions, is preceded by election through a competition to fill the corresponding position.

The list of scientific positions to be filled through a competition and the procedure for holding the said competition are determined by the federal executive body exercising the functions of developing public policy and legal regulation in the field of scientific and scientific-technical activities, in agreement with the federal executive body exercising the functions of developing state policy and legal regulation in the field of labor.

In order to maintain continuity scientific activity it is permissible to conclude an employment contract to fill the position of a scientific worker without being selected through a competition to fill the corresponding position when hiring part-time work for a period of no more than one year, and to replace a temporarily absent employee, who, in accordance with the law, retains his place of work - until his departure this employee to work.

When an employee is elected through a competition to fill the position of a scientific worker previously held by him under a fixed-term employment contract, a new employment contract may not be concluded. In this case, the validity of the fixed-term employment contract with the employee is extended by agreement of the parties, concluded in writing, for a certain period of not more than five years or for an indefinite period.

When transferred to the position of a scientific worker as a result of election through a competition to the corresponding position, the validity period of the employment contract with the employee may be changed by agreement of the parties, concluded in writing, in accordance with the terms of the competition for a certain period of not more than five years or for an indefinite period.

In order to confirm the compliance of an employee with the position of a scientific worker (with the exception of scientific workers whose employment contracts are concluded for a certain period), certification is carried out within the time frame determined by the local normative act, but no more than once every two years and no less than once every five years.

The procedure for certification of employees holding scientific positions is established by the federal executive body exercising the functions of developing state policy and legal regulation in the field of scientific and scientific-technical activities, in agreement with the federal executive body performing the functions of developing state policy and legal regulation in the field of labor.

Article 336.2. Head of a scientific organization, deputy heads of a scientific organization

Positions of heads, deputy heads of state or municipal scientific organizations are replaced by persons not older than sixty-five years of age, regardless of the duration of employment contracts. Persons holding these positions and who have reached the age of sixty-five years are transferred, with their written consent, to other positions corresponding to their qualifications.

The founder has the right to extend the term of office of an employee holding the position of head of a state or municipal scientific organization until he reaches the age of seventy years upon recommendation general meeting(conferences) of employees of a state or municipal scientific organization.

Fixed-term employment contracts are concluded with deputy heads of a scientific organization, the expiration dates of which cannot exceed the expiration date of the powers of the head of a scientific organization.

The head of a state or municipal scientific organization has the right to extend the tenure of an employee holding the position of deputy head of the specified scientific organization until he reaches the age of seventy years in the manner established by the charter of the scientific organization, but not more than the period established by part three of this article.

Article 336.3. Additional grounds for termination of an employment contract with the head, deputy head of a scientific organization

In addition to the grounds provided for by this Code and other federal laws, the basis for termination of an employment contract with the head, deputy head of a state or municipal scientific organization is reaching the age limit for filling the corresponding position in accordance with Article 336.2 of this Code.

Teachers are a separate category of workers. Their work, in addition to generally binding norms and rules, is regulated by a number of regulations - decrees of the Government of the Russian Federation, orders of the Ministry of Education and Science, etc. And in addition to the general grounds for dismissal, special ones may apply to teaching staff. As a rule, such dismissals are quite controversial, so the employer must clearly and accurately follow the dismissal procedure on the chosen basis. We will tell you about the nuances of terminating an employment contract with employees educational organizations on separate grounds.

Among the special grounds for dismissal of teaching staff are:

• clause 8, part 1, art. 81 Labor Code of the Russian Federation(commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work);
• clause 13, part 1, art. 83 Labor Code of the Russian Federation(the emergence of restrictions on occupation established by the Labor Code of the Russian Federation, other federal law and excluding the possibility of an employee fulfilling his duties under an employment contract certain types labor activity);
• clause 2, part 1, art. 336 Labor Code of the Russian Federation

Dismissal for immoral act

The Labor Code does not define an immoral offense; the employer independently determines whether a particular offense is such, based on his own concepts of morality. However, in any case, the following will be considered immoral:

• drinking alcoholic beverages;
• fights;
• insults and obscene language;
• lewd or other actions that negatively affect others.

Let us note that forcing students to lie can also be regarded as an immoral offense and in such a situation, the dismissal of an employee of an educational organization performing educational functions will be legal ( Appeal ruling of the Moscow City Court dated June 20, 2014 in case No. 33‑22169 ).

Thus, any violation of moral principles and socially accepted norms of behavior can be considered an immoral offense.

But in addition to determining the immorality of the act committed, the employer should clearly understand that not every employee can be fired for it. Thus, the Plenum of the RF Armed Forces in Resolution dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation" pointed out that only those workers who are engaged in educational activities, for example teachers, teachers of educational institutions, masters industrial training, teachers of children's institutions, and regardless of where the immoral offense was committed - at the place of work or at home ( paragraph 46).

Of course, the educational function, in addition to teachers and instructors, is also carried out by coaches of sports sections, heads of creative circles, sections and studios, as well as employees who deal with educational work besides their own job responsibilities, for example, deputies for educational work. Thus, the Altai Regional Court refused to reinstate the director of the MCOU secondary school. The director believed that he did not belong to employees performing educational functions, since he exercised leadership and did not teach lessons. However, the court indicated that the fact that the plaintiff does not teach lessons, that is, is not a direct participant educational process, does not indicate a failure to fulfill educational functions. The school director is in direct contact with students, applies educational measures, therefore, he performs educational functions ( Appeal ruling of the Altai Regional Court dated August 27, 2014 in case No. 33‑6014/14 ).

So, who can be fired for committing an immoral act and what is considered such, we figured it out. Now about how to carry out the dismissal itself. Remember that dismissal clause 8, part 1, art. 81 Labor Code of the Russian Federation will be legal if three circumstances occur simultaneously:

• performance of educational functions by the employee;
• committing an immoral offense;
• incompatibility of the committed offense with the continuation of work related to the performance of educational functions.

If an immoral act is committed at the place of work and in connection with the performance labor responsibilities, then such an employee may be dismissed subject to compliance with the procedure for applying disciplinary sanctions established Art. 192, 193 Labor Code of the Russian Federation. If an immoral offense is committed outside the place of work or at the place of work, but not in connection with the performance of labor duties, the employment contract according to clause 8, part 1, art. 81 Labor Code of the Russian Federation can also be terminated, but no later than one year from the date of discovery of the offense ( clause 47 of Resolution No. 2 ).

The procedure for terminating an employment contract clause 8, part 1, art. 81 Labor Code of the Russian Federation next:

The emergence of restrictions on engaging in certain types of work activities

• have or have had a criminal record, are or have been subject to criminal prosecution (except for persons against whom criminal prosecution was terminated on rehabilitative grounds) for crimes against life and health, freedom, honor and dignity of the individual (with the exception of illegal placement in a psychiatric hospital, slander and insult ), sexual integrity and sexual freedom of the individual, against family and minors, public health and public morality, the foundations of the constitutional order and state security, as well as against public safety;
• having an unexpunged or outstanding conviction for intentional grave and especially grave crimes.

When dismissing on this basis, it should be taken into account that dismissal on this basis can only be made after receiving an official certificate from the Ministry of Internal Affairs.

FYI

Administrative regulations for the provision public services for the issuance of certificates of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution approved By order of the Ministry of Internal Affairs of the Russian Federation dated November 7, 2011 No. 1121 .

You should not think that if a teacher was convicted of crimes named in Art. 331 Labor Code of the Russian Federation, before entry into force Law no. 387‑FZ, then there is no need to fire the employee. As judicial practice confirms, it does not matter when the teacher was convicted, the fact itself is important. So, P., believing that he was fired from the MBOU “Youth Sports School” illegally, went to court. The requirements were justified by the fact that the restrictions provided for Part 2 Art. 331 And Art. 351.1 Labor Code of the Russian Federation to carry out teaching activities, in this case are not subject to application, since he was hired before the introduction of these restrictions into labor legislation.

Meanwhile, the court found that in 2005 P. was convicted of Part 1 Art. 111 of the Criminal Code of the Russian Federation and the criminal record has been expunged. Taking into account the legal position set out in Resolution of the Constitutional Court of the Russian Federation dated July 18, 2013 No. 19‑P, the court noted that the provisions of the named articles of the Labor Code provide for an indefinite and unconditional ban on employment professional activity in the areas specified in these provisions for persons who have a criminal record or whose criminal record has been withdrawn or expunged, who have been found guilty. Therefore, the dismissal was recognized as legal and justified ( Appeal ruling of the Supreme Court of the Republic of Mordovia dated July 22, 2014 in case No. 33‑1253/2014 ).

In addition, some heads of educational organizations “in the old fashioned way” believe that this basis for dismissal applies only to those employees who directly carry out teaching or educational activities. That is, a janitor, watchman, supply manager cannot be fired for clause 13, part 1, art. 83 Labor Code of the Russian Federation. However, the current edition of the Labor Code of the Russian Federation is formulated in such a way that the restriction is not established in relation to a specific labor function, but in relation to the field of activity. This means that on this basis it is possible to dismiss a watchman, a cleaner, and other workers who are not directly involved in teaching or educational work, that is, the restriction applies to all personnel of educational organizations, including technical and support staff, since they also carry out labor activities in the above areas (appeal rulings of the Judicial Collegium for Civil Cases of the Chelyabinsk Regional Court dated July 24, 2014 in case No.   11‑7669/2014 , Kurgan Regional Court dated June 13, 2013 in case No. 33‑1596/2013 , Krasnoyarsk Regional Court dated August 20, 2012 in case No. 33‑6847/2012 etc.).

However, simply firing a teacher will not work. As with dismissal for committing an immoral offense, a certain procedure must be followed. In particular, termination of an employment contract due to clause 13, part 1, art. 83 Labor Code of the Russian Federation allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as vacant position or a job that corresponds to the employee’s qualifications, and a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. The employer is obliged to offer all vacancies available in the local area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for collective agreement, agreements, employment contracts.

The use of educational methods related to violence against the individual

Which methods of education are considered physical or mental violence? We believe that the former include beatings and any other actions that cause pain, forced deprivation of freedom, food, drink, etc. The latter include threats, deliberate isolation, insults and humiliation, presentation of excessive demands, systematic and unfounded criticism, demonstrative negative attitude towards the student, etc.

Here the employer will have to conduct an investigation, during which to establish what kind of violence was used against students or pupils and whether it occurred at all. In addition, it is necessary to stock up on evidence - statements from parents, testimony - and conduct an official investigation. If this is not done, the restoration of the tyrant teacher cannot be avoided. For example, the Volgograd Regional Court reinstated D., who was fired for “moral insult” at the State Budget Educational Institution “PU”: during class, she hit student A. in the leg with a pointer, hit student B. in the face, and addressed P. with gross obscene language swearing. The dismissal order was issued on the basis of explanatory notes from students, statements, and complaints from parents. Explanations from D. were requested. However, the court satisfied D.’s demands and reinstated her at work, since the State Budget Educational Institution “PU” did not conduct an official investigation, therefore the court was unable to establish specific facts of D.’s use of physical and psychological violence against students ( Appeal ruling of the Volgograd Regional Court dated April 11, 2014 in case No. 33‑3888/14 ).

This reason for dismissal does not apply to disciplinary sanctions, however, an internal investigation will still have to be conducted.

Here is an example of an entry in work book about dismissal on the grounds in question.

Registration of dismissal

• By clause 8, part 1, art. 81 Labor Code of the Russian Federation- an official note or act of recording the fact of immoral behavior of a teaching worker, an explanatory note of the offender or an act of refusal to give an explanation, an act of official investigation;
• By clause 13, part 1, art. 83 Labor Code of the Russian Federation- a certificate from the Ministry of Internal Affairs about the presence of a criminal record or the fact of criminal prosecution, possibly an order from the prosecutor;
• By p.2 hours 1 tbsp. 336 Labor Code of the Russian Federation- complaints from parents and students in writing, an explanatory statement from a teaching staff, an investigation report.

Based on the order, an entry is made in the work book and personal card.

Then, on the last working day, it is necessary to issue a work book to the person being dismissed and make payments to him in accordance with Art. 140 Labor Code of the Russian Federation. Upon written application by the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

Let's sum it up

Approved by Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 No. 1 “On approval of unified forms primary documentation on accounting of labor and its payment."

Federal law dated December 23, 2010 No. 387-FZ “On amendments to Article 22.1 of the Federal Law “On state registration legal entities And individual entrepreneurs"and the Labor Code of the Russian Federation."

New edition of Art. 336 Labor Code of the Russian Federation

In addition to the grounds provided for by this Code and other federal laws, the grounds for termination of an employment contract with teaching worker are:

1) repeated within one year gross violation charter of the organization carrying out educational activities;

2) the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil;

3) reaching the age limit for filling the corresponding position in accordance with Article 332 of this Code;

Commentary on Article 336 of the Labor Code of the Russian Federation

Termination of an employment contract with teaching staff can be carried out both in the general manner provided for in Article 77 of the Labor Code, and on additional grounds. Article 336 of the Labor Code establishes additional grounds for terminating an employment contract with a teaching employee at the initiative of the employer. An employment contract can be terminated for repeated gross violation of the charter within a year educational institution, or for a single use of educational methods associated with physical and (or) mental violence against the personality of the student or pupil. But here it is necessary to remember that the dismissal of an employee is possible only taking into account the results of a disciplinary investigation, based on a complaint. Article 55 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education” provides the grounds for conducting an investigation, as well as the obligation to familiarize the employee with the complaint filed against him. Disciplinary investigation of violations of norms by teaching staff professional behavior and (or) the charter of a given educational institution can only be carried out upon a complaint received against it, submitted in writing. The employee is given, in accordance with the established procedure, a copy of the complaint. The progress of a disciplinary investigation and decisions made based on its results can be made public only with the consent of the employee. The exception is cases leading to a prohibition to engage in teaching activities, or, if necessary, to protect the interests of students or pupils.

Rector, vice-rector, dean of the faculty, head of the branch (institute), federal state educational institution of higher education vocational education who has not received consent to extend his term of office and has not given consent to be transferred to another position corresponding to his qualifications upon reaching the age of 65 years, is subject to dismissal.

The specificity of termination of an employment contract under Article 336 of the Labor Code is that it does not require the mandatory participation of an elected trade union body.

Article 336 of the Labor Code indicates that the grounds for termination of an employment contract with teaching staff may also be determined by other federal laws. In this case, we are talking about the requirements provided for by the Laws on Education and Higher Professional Education, taking into account the prohibitions on the right to carry out teaching activities determined by Article 331 of the Labor Code.

An employment contract with employees of educational institutions may be terminated due to insufficient qualifications, confirmed by certification results, for positions for which the tariff and qualification characteristics provide for the presence of qualification categories. The procedure for terminating an employment contract due to insufficient qualifications of an employee is determined by the academic council of the university on the basis of paragraph 14 of the Regulations on the procedure for filling positions of scientific and pedagogical workers of universities, approved by Order of the Ministry of Education of the Russian Federation of November 26, 2002 N 4114. For positions of teaching staff of higher educational institutions The presence of qualification categories is not provided for by the tariff and qualification characteristics.

An employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution can be concluded for an indefinite period, as well as for a period determined by the parties to the employment contract.

The conclusion of an employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution, as well as the transfer to the position of a scientific and pedagogical worker, is preceded by election through a competition to fill the corresponding position.

A competition for filling the position of a scientific and pedagogical worker occupied by an employee with whom an employment contract has been concluded for an indefinite period is held once every five years.

It is permissible to conclude an employment contract to fill the position of a scientific and pedagogical worker in a higher educational institution without holding a competition for filling the corresponding position when hiring part-time work or in newly created higher educational institutions before the start of work of the academic council - for a period of no more than one year, and for replacement a temporarily absent employee whose place of work is retained in accordance with the law - until this employee returns to work, in order to maintain the continuity of the educational process.

In addition, there may not be a competition to replace:

Positions of dean of the faculty and head of the department;

Positions of scientific and pedagogical workers occupied by pregnant women;

Positions of scientific and pedagogical workers held under an employment contract concluded for an indefinite period by women with children under three years of age.

With an employee holding the position of scientific and pedagogical worker under an employment contract concluded for an indefinite period, based on the results of the competition provided for in part three of this article, who was not elected to the position or who did not express a desire to participate in the said competition, the employment contract is terminated in accordance with paragraph 4 of the article 336 TK.

A new employment contract may not be concluded if an employee is elected through a competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract. In this case, by agreement of the parties, the fixed-term employment contract with the employee is extended for a period of no more than five years or for an indefinite period.

When transferring to the position of scientific and pedagogical worker as a result of election through competition to the corresponding position, the validity period of the employment contract with the employee may be changed by agreement of the parties, concluded in writing, for a period of no more than five years or for an indefinite period.

Before the expiration of the election period under the competition provided for in Part 3 of Article 332 of the Labor Code, or during the term of a fixed-term employment contract, in order to confirm the employee’s compliance with the position of scientific and pedagogical worker held by him, certification may be carried out. The regulations on the procedure for certification of employees holding scientific and pedagogical positions are approved in the manner established by the Government of the Russian Federation.

In accordance with Article 332 of the Labor Code, the positions of dean of the faculty and head of the department are elective. The procedure for holding elections to these positions is established by the statutes of higher educational institutions.

The positions of rector, vice-rectors, and heads of branches (institutes) in state and municipal higher educational institutions are filled by persons under the age of sixty-five years, regardless of the time of conclusion of employment contracts. Persons holding these positions, upon reaching the age of sixty-five years, are transferred, with written consent, to other positions corresponding to their qualifications.

Taking into account the presentation of the academic council of the state or municipal higher educational institution the founder has the right to extend the term of the rector in his position until he reaches the age of seventy years.

A fixed-term employment contract is concluded with the vice-rectors of a higher educational institution. The expiration date of a fixed-term employment contract concluded with the vice-rector coincides with the expiration date of the rector’s powers.

The term of office of a vice-rector or head of a branch (institute) until they reach the age of seventy years can be extended by the rector, upon the proposal of the academic council of a state or municipal higher educational institution.

Another comment on Art. 336 Labor Code of the Russian Federation

1. The employment contract with teaching staff is terminated as per the general procedure provided for in Art. 77 Labor Code, and on additional grounds. Article 336 establishes additional grounds for termination of an employment contract with a teaching employee at the initiative of the employer.

2. Repeated gross violation of the charter of an educational institution within a year and the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of a student or pupil, as grounds for dismissal, are associated with the need to conduct a disciplinary investigation. Article 55 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education” provides the basis for an investigation and the obligation to familiarize the employee with the complaint filed against him. A disciplinary investigation into violations by a teacher of the norms of professional conduct and (or) the charter of a given educational institution can only be carried out upon a complaint received against him, submitted in writing. A copy of the complaint must be given to the teacher in question. The progress of a disciplinary investigation and decisions made based on its results can be made public only with the consent of the employee, with the exception of cases leading to a prohibition to engage in teaching activities, or if it is necessary to protect the interests of students.

3. The rector, vice-rector, head of a branch (institute), a federal state educational institution of higher professional education, who, upon reaching the age of 65, has not received consent to extend his term of office and has not given consent to a transfer to another position corresponding to his qualifications, is subject to dismissal.

4. Article 56 of the Law of the Russian Federation “On Education” contained another additional basis for the dismissal of a teaching employee - appearing at work in a state of alcohol, drug or toxic intoxication. In Art. 336 of the Labor Code of the Russian Federation, this additional basis is absent, since it provides that this basis applies to all employees, and not just to the teaching staff.

5. Failure to be elected by competition to the position of a scientific and pedagogical worker or the expiration of the term of election by competition as an additional basis for termination of an employment contract is presented in the Labor Code of the Russian Federation for the first time, since the previously existing model of an employment contract with a scientific and pedagogical worker of a higher educational institution provided for an exclusively fixed-term employment contract for a period of up to 5 years. The current version assumes that an employment contract with a scientific and pedagogical worker can be concluded for an indefinite period with a competition being held at least once every 5 years. During the period of the competition, the employment contract is preserved and, if the employee is elected, it is extended; if the employee is not elected, it must be terminated, which is why the legislator has provided this basis as an independent basis for terminating the employment contract with a scientific and pedagogical worker.

6. Termination of an employment contract under Art. 336 of the Labor Code of the Russian Federation does not require the mandatory participation of an elected trade union body (see Art. 82, 373 of the Labor Code of the Russian Federation and commentary thereto).

7. The commented article states that the grounds for termination of an employment contract with teaching staff may be determined by other federal laws. We are talking about the requirements stipulated by the laws on education and higher professional education, taking into account prohibitions on the right to carry out teaching activities (see Article 331 of the Labor Code of the Russian Federation and the commentary thereto).

Thus, one of the additional grounds for terminating employment contracts with the rector and vice-rectors provided for by the Federal Law of August 22, 1996 N 125-FZ (as amended on April 20, 2007) “On Higher and Postgraduate Professional Education” (Article 12 ), is the deprivation of state accreditation of a state or municipal higher education institution as a whole. The rector of a higher educational institution and vice-rectors, who are responsible within their competence for the quality of training of graduates, are relieved of their positions by the executive authority or the executive-administrative body of the city district under whose jurisdiction such a higher educational institution is located. In this case, elections of the rector of a higher educational institution are not allowed, and he is hired by the relevant education management body under an employment contract for a period of no more than 5 years.

An employment contract with employees of educational institutions, for whose positions the tariff and qualification characteristics provide for the presence of qualification categories, may be terminated due to insufficient qualifications confirmed by certification results. The procedure for terminating an employment contract due to insufficient qualifications of an employee is determined by the academic council of the university (clause 14 of the Regulations on the procedure for filling positions of scientific and pedagogical workers of universities, approved by Order of the Ministry of Education of the Russian Federation of November 26, 2002 N 4114).

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• Chapter 52.1 of the Labor Code of the Russian Federation. Peculiarities of labor regulation of scientists, heads of scientific organizations, and their deputies ›

In addition to the grounds provided for by this Code and other federal laws, the grounds for termination of an employment contract with a teaching employee are:

1) repeated gross violation of the charter of an organization carrying out educational activities within one year;

2) the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil;

3) reaching the age limit for filling the corresponding position in accordance with Article 332 of this Code;

Comments on Art. 336 Labor Code of the Russian Federation

1. Taking into account the peculiarities of the emergence of labor relations and the content of the labor function of teaching staff, the commented article provides grounds for termination of an employment contract at the initiative of the employer, in addition to those provided for in Art. 81 of the Labor Code of the Russian Federation (see commentary to Article 81). This norm is targeted in nature and, just like paragraph 3 of Art. 254 of the Labor Code, which became invalid due to the adoption of the Labor Code of the Russian Federation, is focused on the application of additional grounds for termination of labor relations in relation to employees of educational institutions whose activities are related to the performance of educational functions. The responsibilities of this category of employees, in addition to their new responsibilities (see commentary to Article 21 of the Labor Code of the Russian Federation) are regulated by the charters of educational institutions. In this regard, for the first time, an appropriate basis has been established: repeated gross violation of the charter of an educational institution within 1 year may lead to the dismissal of a teaching employee.

At the same time, after the adoption of the Labor Code of the Russian Federation, the charter of the educational institution should establish a list of gross violations of the charter, for which such dismissal may follow, of course, if specified list has not been installed previously.

If such a list has not been established, then when assessing the severity of the offense committed (violation of the charter), one can be guided by the internal rules of the educational institution. The concept of “gross violation of the charter” is evaluative and the decision itself falls within the exclusive competence of the head of the educational institution.

For example, systematic improper fulfillment of the main statutory duty of a teaching worker to complete the teaching load in a timely and high-quality manner, resulting in the disruption of classes without good reasons or conducting these classes at a low methodological level due to lack of preparation for them, may be regarded as a gross violation of the duties provided for by the charter.

For dismissal on this basis, it is necessary that the fact of a gross violation of the charter by a teaching employee must be confirmed by an internal memo from an employee of the educational unit, the dean's office, the relevant act, and other documents. An explanation must be required from the employee in each specific case. Since dismissal is always a last resort, the employer, in the event of a gross violation of the charter, has the right to apply disciplinary action to the teacher.

Since we are talking about a repeated gross violation of the charter within 1 year, the specified one-year period is calculated from the moment the first gross violation was committed.

2. The second additional basis for termination of labor relations, provided for in the commented article, is also associated with the special responsibility of teaching staff, as persons performing educational functions.

It is stipulated that in the case of using, even once, methods of education in which measures of physical or mental violence are applied to the student, the teacher is subject to dismissal.

It is quite obvious that this basis includes cases of causing physical or moral suffering to a student.

Physical suffering can be caused as a result of beatings, blows and other actions involving the infliction of physical pain.

Moral suffering can be caused by violence committed against the student’s personality in the form of threats, humiliation, insults, etc.

In these cases, it is also necessary that the fact of physical or mental violence against the student be confirmed by relevant documents ( memos, acts, explanations, etc.).

It should be borne in mind that clause 2 of Art. 55 of the Law of the Russian Federation “On Education” establishes that an investigation into a violation committed by a teaching employee is carried out only if written complaint. In this case, a copy of the complaint must be transferred to the teaching staff for review and explanation.

3. Dismissal of the rector, vice-rector, dean of the faculty, head of a branch (institute) of a federal state educational institution of higher professional education under paragraph 3 of the commented article is allowed when it is impossible to transfer the specified senior management employees of the university to other positions corresponding to their qualifications, or there is no consent to such translation.

This basis for termination of an employment contract has undergone a change in terms of the circle of subjects to which it applies, in connection with the adoption of Federal Law No. 122-FZ of August 22, 2004 (see commentary to Article 332 of the Labor Code of the Russian Federation). However, until January 1, 2005, rectors, vice-rectors, deans of faculties, and heads of branches (institutes) of all state or municipal higher educational institutions could be dismissed on this basis (if it was not possible to transfer them to another job).

Full text of Art. 336 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 336 of the Labor Code of the Russian Federation.

In addition to the grounds provided for by this Code and other federal laws, the grounds for termination of an employment contract with a teaching employee are:
1) repeated gross violation of the charter of an organization carrying out educational activities within one year;
2) the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student or pupil;
3) reaching the age limit for filling the corresponding position in accordance with Article 332 of this Code;
4) the clause became invalid on January 1, 2015 - Federal Law of December 22, 2014 N 443-FZ.

Commentary on Article 336 of the Labor Code of the Russian Federation

1. Teaching staff represent a category of workers, features legal status which are predetermined by the specifics of the activities they carry out. The presence of such features in no way detracts from the importance of general legislative requirements, but is aimed at taking into account these features in the process of such employees carrying out their work activities. Thus, an employment contract with any teaching employee can be terminated on any of the grounds provided for by the Labor Code of the Russian Federation. At the same time, the implementation of educational and educational functions within the framework of work activity indicates the presentation of a number of additional requirements to such employees, which, in turn, contributes to the formation of additional grounds for terminating an employment contract with a teaching employee.

An analysis of the provisions of the commented article indicates that the additional grounds provided for by it are to a greater extent basic for education workers, since they reflect specific circumstances characteristic only of this category of workers that prevent them from continuing this activity.

2. In relation to the activities of teaching staff, the law indicates the possibility of dismissal in the event of repeated gross violations of the regulations of the charter of the organization carrying out educational activities, i.e. his constituent document. In this regard, it seems necessary within the framework of the LNA of an educational organization to determine specific elements of offenses that are recognized as gross violations for its employees and may, if repeated, lead to dismissal on this basis. This position is reflected in Methodical recommendations on the development of the charter of an educational institution, which directly refer to the lack of a definition of “gross violation of the charter” in the current legislation, and therefore each educational institution must resolve this issue independently. The charter must contain an exhaustive list of offenses considered as gross violations of its provisions. However, in practice this provision is often not implemented.

An analysis of the majority of current charters of educational institutions indicates that in practice there is a combination of two independent grounds for termination of an employment contract: general (one-time gross violation of labor duties) and special, provided exclusively for teaching staff (repeated gross violation of the charter). This neutralizes the legal meaning of the provisions of this article.

3. A single use of educational methods associated with physical or mental violence against the individual student or pupil can also serve as a special reason for the dismissal of a teaching worker. Physical violence is a direct impact on the human body, mental violence - on his psyche, will, desires or behavior.

Currently in judicial practice There are many examples of the implementation of the commented norm, which often end with the employee’s reinstatement at work, since they require the determination of a methodology for proving the fact of the use of violence against the student’s personality (see, for example, the decision of the Karabudakhkent district court on June 16, 2009 on O.’s claim against the Karabudakhkent secondary secondary school Karabudakhkent district of the Republic of Dagestan on reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage).

If a teaching employee is accused of using anti-teaching methods, a disciplinary investigation is carried out. Based on its results, the head of the educational institution or the corresponding collegial body evaluate the methods used by the teaching staff and, on its basis, make a decision to dismiss the employee under Part 2 of Art. 336 Labor Code of the Russian Federation. To apply the considered grounds for termination of an employment contract, the administration of an educational organization must have the necessary amount of knowledge about the procedure for its implementation, including in terms of conducting a disciplinary investigation.

4. The replacement of certain categories of positions, as a rule, we are talking about the managerial (administrative) apparatus of an educational institution, is associated with the application of an age limit (for more details on the age limit, see the commentary to Article 332 of the Labor Code of the Russian Federation). Failure to comply with the established age limit is grounds for termination of employment relations with such an employee, but in this case, as a special guarantee for such employees, the law provides for the possibility of their transfer to another position with their consent. If this is not possible, the employment relationship is subject to termination. Taking into account the definition of the Constitutional Court of the Russian Federation of July 11, 2006 N 213-O, currently this basis is implemented mainly only in relation to rectors of organizations higher education and heads of other educational organizations for which the age limit is an imperative requirement. At the same time, the fact of reaching the maximum age for holding a position is the basis for termination of labor relations specifically for this position, but in no way detracts from the right of such a person to carry out teaching activities. In this regard, the ground under consideration acts both as a legal terminating fact (in relation to a managerial position) and as a law-altering one (in relation to a teaching staff position). Determining the status of this legal fact equally depends on both the employer and the employee.