P 2 Article 81 Labor Code. Illegal dismissal due to a reduction in the organization's workforce

Good afternoon,

Dismissal under 81.2 is

Termination of an employment contract by
initiative of the employer in connection with a reduction in the number or staff of employees
organizations, individual entrepreneur(clause 2, part 1, article 81 of the Labor Code)

Article 178. Weekends
benefits

Upon termination of an employment contract due to layoffs
number or staff of employees of the organization (clause 2 of part one of article
81 of the Labor Code) the dismissed employee is paid a day off
a benefit in the amount of average monthly earnings, and is also retained
average monthly earnings for the period of employment, but not more than two months
from the date of dismissal (including severance pay).

In exceptional cases, the average monthly
earnings are retained by the dismissed employee for the third month from the date
dismissal by decision of the employment service body, provided that
two weeks after dismissal, the employee contacted this body and was not
employed.

Rules for calculating average earnings

Article 139.
Average calculation wages

For all cases of determining the size of the average
wages (average earnings) provided for by this Code,
a uniform order is established
her calculations.

To calculate the average salary
everyone is taken into account provided by the system remuneration types of payments applied
from the relevant employer, regardless of the sources of these payments.

For any operating mode, calculation of the average
the employee's salary is based on the amount actually accrued to him
wages and time actually worked by him for 12 calendar
months preceding the period during which the employee retains
average salary. In this case, the calendar month is considered to be the period from the 1st
to the 30th (31st) day of the corresponding month inclusive (in February - to the 28th
(29th) number inclusive).

Average daily earnings for vacation pay
and compensation payments for unused vacations are calculated for the last 12
calendar months by dividing the amount of accrued wages by 12 and by
29.3 (monthly average calendar days).

Average daily earnings for payment
vacations granted in working days, in cases provided for by this
Code, as well as for payment of compensation for unused vacations
determined by dividing the amount of accrued wages by the number
working days according to the six-day calendar working week.

In the collective agreement, local
the regulatory act may also provide for other periods for calculating the average
wages, if this does not worsen the situation of workers.

Reason: “Labor
code Russian Federation» dated December 30, 2001 N 197-FZ (as amended on June 29, 2015)

To receive this amount you must
register with the Employment Service

Article 3. Procedure and conditions
recognition of citizens as unemployed

1. Those who are able to work are considered unemployed
citizens who do not have work or income are registered with the authorities
employment services for search purposes suitable job, looking for work and ready
get started with it. However, payments are not taken into account as earnings.
severance pay and maintained average earnings for citizens dismissed in
connection with the liquidation of an organization or termination of activities of an individual
entrepreneur, reduction in the number or staff of employees of the organization,
individual entrepreneur.

Article 30. Procedure
determining the amount of unemployment benefits

citizens dismissed for any reason,

and is set as a percentage of average earnings,
calculated for the last three months according to last place work if they are in
during the 12 months preceding the start of unemployment, had paid
work for at least 26 weeks on a full-time basis (full-time
weeks) or on a part-time basis (part-time work week) with
recalculated to 26 weeks with full time (full work week).

Article 31. Conditions and
unemployment benefit payment deadlines

1. Unemployment benefits are paid
citizens recognized in accordance with the established procedure
unemployed.

2. The decision to assign benefits for
unemployment is made simultaneously with the decision to recognize a citizen
unemployed.

3. Unemployment benefits are calculated
citizens from the first day of their recognition as unemployed.

Citizens dismissed due to

reduction in the number or staff of employees
organization, individual entrepreneur, recognized in the established
order unemployed, but not employed during the period during which
they maintain the average salary at their last place of work (with credit
severance pay), unemployment benefits are accrued from the first day to
after the specified period.

4. Each benefit payment period
unemployment cannot exceed 12 months in total during 18
months

6. Unemployment benefits are paid
monthly, subject to the unemployed re-registration in the established
by employment service authorities, but not more than twice a month.

In accordance with subparagraph "b" of paragraph 6 of part 1 of Art. 81 Labor Code In the Russian Federation, termination of an employment contract is provided only if an employee appears at work in a state of alcohol, narcotic or other toxic intoxication.

When considering civil cases on the reinstatement of an employee whose employment contract was terminated at the initiative of the employer, in particular, when resolving a dispute about the termination of an employment contract in the Russian Federation, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissing an employee rests with the employer.

The reasons for initiating measures provided for by law to terminate an employment contract are the facts and information of the use alcoholic drinks, use of narcotic or toxic substances, by an employee of an organization or enterprise, by an employee who was in work time at the place of execution labor responsibilities in a state of alcohol, narcotic or other toxic intoxication, either on the territory of this organization, or he was on the territory of the facility where, on behalf of the employer, he had to perform a labor function.

In accordance with paragraph 42 of the Resolution 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”, the state of alcoholic or narcotic or other toxic intoxication can be confirmed as medical report, as well as other types of evidence that must be assessed accordingly by the court resolving a dispute regarding the termination of an employment contract based on subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Due to the above, the employer’s primary task is to obtain evidence that the employee is in a state of alcohol, drug or other toxic intoxication. If an employee contests dismissal due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code RF, its primary task is to challenge the relevant evidence presented by the employer to the court.

From March 26, 2016, the procedure for conducting a medical examination for intoxication of an employee, as well as all other citizens of the Russian Federation, was determined by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 933n “On the procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic)" and includes: a) examination by a medical specialist (paramedic); b) examination of exhaled air for the presence of alcohol; c) determination of the presence of psychoactive substances in urine; d) study of the level of psychoactive substances in urine; e) study of the level of psychoactive substances in the blood.

A medical examination of an employee who appears at work with signs of intoxication is carried out on the basis of a referral from the employer.

After the personal data of the person being examined is indicated in the Certificate, the medical examination in all cases begins with the first examination of exhaled air for the presence of alcohol, after which a medical specialist (paramedic) collects complaints, anamnesis and examination in order to identify clinical signs of intoxication, provided for in Appendix No. 2 to The procedure for conducting a medical examination for intoxication (alcohol, drugs or other toxic).

During a medical examination of an employee and in the presence of at least three clinical signs of intoxication, provided for in Appendix No. 2 to the Procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic), and a negative result of the first or repeated examination of exhaled air for the presence of alcohol, a biological sample is taken object (urine, blood) for referral for chemical and toxicological testing in order to determine the drugs (substances) or their metabolites (except for alcohol) that caused intoxication.

Based on the results of examinations and instrumental and laboratory tests carried out as part of the medical examination, one of the following medical opinions is issued on the condition of the person being examined at the time of the medical examination:
1) a state of intoxication has been established;
2) the state of intoxication has not been established;
3) the person being examined (the legal representative of the person being examined) refused a medical examination.

It is obvious that the examination of medical documents and other types of evidence of the state of alcoholic or narcotic or other toxic intoxication and correct assessment medical reports and evidence in general occupy a key place in resolving a dispute regarding the termination of an employment contract due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Our specialists will help you timely and correctly prepare for court hearings to resolve a dispute regarding the termination of an employment contract under subparagraph "b" of paragraph 6 of part 1 of Article 81 of the Labor Code Russian Federation, will conduct a detailed and competent analysis of the case materials and provide the necessary qualified assistance in drawing up the required documents for the court.

Dismissal under Article 81

Any company can at some point cease to exist. According to Article 81 of the Labor Code, the head of an organization may initiate the termination of an employment contract. However, there are some points that the employer must comply with.

Labor Code 81 article dismissal

Dismissal under Article 81 – Labor Code

Article, which is assigned number 81 in the labor code, states that the employment contract is terminated at the initiative of the employer. According to the labor code, dismissal under Article 81 can be divided into several separate cases. They can affect any employee, regardless of what position he holds. On the one hand, it seems that with the help of this article, the employer can get rid of any employee he does not like. In reality, everything may look completely different. The first paragraph of this article states that an entrepreneur can initiate the termination of an employment contract if the organization ceases its activities. Before terminating the contract, the entrepreneur must follow certain rules. First, he must notify the employee of the upcoming layoff. This must be done at least two weeks before the dismissal date. If the employee agrees, he may be fired before the dismissal date.

An entrepreneur can fire an employee who is not suitable for the position he occupies. The reason for the reduction may also be insufficient high level employee qualifications.

Dismissal due to reduction Article 81

Dismissal due to reduction – Article 81

According to Article 81, when dismissing due to reduction, the employer must take into account the following points:

• Before an employee is dismissed, he must be offered another position or vacancy;
• The reduction may occur in accordance with the certification;
• It is better to fix qualification requirements in advance in job description.

If the employer offers another vacancy, then it is worth considering the fact new position may be associated with lower qualifications. Lower wages may also be available. In rarer situations, an employee may have to move to another location. The company's management is not obliged to offer higher-paying jobs.

Paragraph 5 of the article states that an employee can be fired for repeatedly violating his work duties. If there is more than one such case, the employee may be fired in accordance with this article. At the same time, the employer must comply with certain rules. If more than a month has passed since the employee violated his labor obligations, then the employer does not have the right to punish him by dismissal. Another condition is that the employee must commit another offense no later than 12 months after the first. In order to prove an employee’s violation, the obligations must be specified in the labor instructions.

Dismissal under Article 81

Dismissal Article 81 paragraph 6

In some cases, an employer may fire an employee even if he has not committed any previous misconduct. Dismissal under Article 81, paragraph 6 may occur if the employee committed one of the following violations:

• Arrived at the place of work under the influence of alcohol or drugs;
• The employee grossly violated one or more labor safety rules;
• Absenteeism;
• Theft;
• The employee disclosed information that was of a commercial nature. The employee should have received this information during labor activity.

The violation must be recorded, otherwise it cannot serve as a basis for reduction. To do this, it is necessary to draw up an appropriate act. If any misconduct has been committed, the employee must provide an explanation in writing. The employee has 2 days to do this. An employer may dismiss an employee only if the misconduct is not justifiable or the justifications are not convincing. In the event of a layoff in accordance with paragraph 6 of the article, the employee cannot count on monetary compensation. The only compensation is for days unused vacation. Dismissal under this clause also presupposes the fact that

Everyone knows that absolutely all relations between the management of an enterprise and its employees must be clearly regulated on the basis of the Labor Code of the Russian Federation. Any deviations can be easily challenged in accordance with the approved procedure.

Sometimes some amendments can be regulated additionally in a document signed by the employer and the employee. But there is a strict rule here: at the initiative of the employer, any rights of the employee cannot be infringed, only expanded. That is, simply put, the collective agreement can provide for additional days of vacation or payments to it, but the employer does not have the right to approve a fewer number of days or a smaller amount of payments than is provided for by labor legislation. Even if employees sign such an agreement, it can still be declared invalid at the first request, since such actions are completely illegal.

Legislative norms regulate the termination procedure especially strictly. Here we can immediately note a certain feature: in any situation, the Law is for the most part on the side of the employee. The Labor Code of the Russian Federation puts the management of an enterprise in a less advantageous position in this case, because if a person can always quit at will (even in the presence of gross violations, management has no right not to give him a payroll and documents), then at the initiative of the employer, dismiss someone much more difficult.

Sometimes a manager can use other methods and literally force a person to write a letter of resignation, but, from a legal point of view, this will be his decision and somehow proving the fact of coercion is very problematic. In this case, the employee should simply not give in to provocations and continue to do his job properly.

If the employer has any claims against the employee, then Art. 81 of the Labor Code of the Russian Federation provides possible grounds for dismissal. But we must immediately stipulate: this is quite difficult to do. The grounds for termination must indeed be very serious. In addition, the procedure must be fully followed. Simply put, it is not enough to simply put a note in the work book that the employee was dismissed under Article 81 of the Labor Code. Additionally, supporting documents and other documents must be provided Required documents. Otherwise, accusations of violations will be unfounded. But even if the reasons are indeed more than serious, it is still important to pay attention to compliance with the rules for formalizing the termination of employment relations at the initiative of the employer.

Management must approach this issue as responsibly as possible. In the event of inspections or an employee going to court, management may be obliged to reinstate the person in his position with all the ensuing circumstances, even not due to absence good reason to terminate the employment relationship, but solely due to a violation of the registration procedure.

In some cases, the main difficulty lies precisely in the interpretation of a particular point. For example, each person may have their own concepts of an immoral act. The law does not clearly regulate which actions should be classified as this category of misconduct, so often in practice it is quite easy to challenge dismissal under this formulation.

Article 81 also has additional comments which can be found for latest edition. It is there that the main provisions for each point are explained, how exactly to understand it and what needs to be done in a given situation to prevent it.

The most reasoned reason to fire an employee, since formally his position is simply liquidated. The first part provides for the termination of employment relations in connection with the liquidation of the company, and part 2 of Art. 81 - due to .

At the same time, there is a clear procedure for making such decisions. First of all, if it is planned to lay off more than 15 people, then this will fall under mass layoffs, and it is necessary to notify the Trade Union and the Social Insurance Fund about this 3 months in advance. It is important to provide arguments for this decision. Simply put, it is prohibited to lay off people for no apparent reason. Changes to the staffing table must first be made. It is also important to argue, citing lack of demand for products, decreased funding, orders governing bodies(Resolutions of the Ministries for public institutions).

Next, you need to warn each employee personally about the upcoming reduction, having received his signature. If for any reason this cannot be done, then an official registered letter should be sent with acknowledgment of receipt and a list of the contents.

If an incomplete reduction is carried out, then the employee must be offered another position - an alternative one that corresponds to his skills and state of health. If the employee refuses the proposed alternative (in writing), then it is necessary to formulate an order to terminate the employment contract, and then, within the established time frame, make an entry in the work book and issue a payment. After this, the employee has the right to join the labor exchange.

An interesting feature is that a person has every right not to work this time, but still receive a salary. That is, he demands to stop labor Relations at any time after notification of a layoff, but the employer is obliged to pay him wages for this time (before the date specified in the order), as well as issue documents.

All this time that he did not complete is also taken to calculate compensation for vacation, which will be due to the employee upon dismissal. Severance pay is also not canceled in this case. Based on the law, the employee must be paid the average monthly salary upon dismissal. In case of early receipt of payment, this amount must also be issued immediately.

However, all this applies only to those cases when the organization is completely closed. In this case, the employee is fired without an alternative. But if only part of the staff is being laid off, then it is important to take into account the fact that not every employee can be laid off just like that. There is a certain category of citizens who can only be fired as a last resort:

• disabled people;
• women on maternity leave and those who have a child under 3 years of age or a disabled child;
• the only breadwinners in the family.

Even if there are no preferential categories of citizens in the state at all, then it is also customary for the rules to highlight a certain sequence in which workers should be laid off. For example, first of all, preference should be given to those employees who have more work experience at the enterprise, as well as a higher level of qualifications (rank, rank), data from the latest certification - they should be retained.

Inconsistency with the position held

In the Russian Federation, the Labor Code with commentaries clearly stipulates that this can only be done after appropriate certification control. Simply put, it is impossible to indicate such an item without preliminary control. Even if there are systematic reprimands, a conclusion from a special commission is still necessary.

At the same time, again, certification cannot be carried out without a reason. There are regulations for each specific organization and position that regulate the frequency of monitoring for employees of the institution. The certification exam includes a certain list of questions on the topic of the company’s work and the specialization of the employee himself. Certification also cannot be carried out spontaneously; employees are warned about it in advance.

The certification commission often includes the management of the enterprise and representatives of various areas. It is also possible to involve an invited specialist to assess the employee’s qualifications (a contract must first be concluded with such a representative in accordance with all legal standards).

Often, a representative of each direction gives a rating, after which the arithmetic average is derived. Upon completion of the certification, a protocol is drawn up, and information about the results is entered into the personal file of each employee who passed this test.

If an employee does not immediately pass the performance assessment, then the manager, at his discretion, may not immediately dismiss such a person, but send him to advanced training courses, after which a re-assessment of knowledge and skills is carried out. But this is a right, not an obligation of the employer; he can do it immediately.

At the same time, an unplanned certification can also be carried out if the employee receives systematic complaints or a serious mistake was made in the performance of his duties. Then an extraordinary commission is convened to conduct certification.

In the future, if the manager issued an employee for this reason, then he can send an official complaint and re-issue independent assessment. This is not always possible in practice. For example, if this government agency, then you can invite representatives from other districts or headquarters. If this is a separate company, then it is theoretically impossible to attract third-party specialists.

If in this case the employee goes to court, then they will be required to involve independent experts in this field - they will evaluate the quality of the employees’ work.

But here an additional nuance should also be taken into account: some employees cannot initially be involved in certification. For example, pregnant women do not take this exam. It is prohibited to recall from sick leave or vacation for certification. Then, even if a person does not receive the required score on the exam and is fired for this, then such actions of the head of the company in any case will be recognized as initially unlawful. In addition, the employee has every right to simply refuse to undergo certification. If the employer applies any sanctions, then it is permissible to immediately contact the employer to protect their rights.

By the way, this has been one of the most controversial issues lately. In fact, employee certification should be carried out no more than once every 2 years. At the same time, many modern companies conduct monthly tests to check the quality of employee work, without even looking at the categories of persons who should not undergo such control. On the one hand, this is unlawful. But, on the other hand, this is spelled out in the collective agreement and job description. In other words, this control can be regarded as one of the employee’s duties, that is, refusal to undergo control or receiving an inappropriate score is a failure to complete the assigned tasks.

Change of owner of the organization

In the Labor Code of the Russian Federation, Art. 81 paragraph 4 clearly stipulates that this wording applies only to the management team: the manager, his deputies and Chief Accountant. Simply put, when an enterprise becomes the property of another person, it would be quite logical for him to appoint his proxies to the main positions. The state, by legislative norms, gives every right to do this. But at the same time, one should also additionally take into account the fact that employees often claim that they are speculating on this right.

The line is really quite thin, and therefore it is necessary to first understand what exactly can be considered falling under this point and what does not. Not every employee can be fired if the owner of the company changes.

But at the same time, one should not confuse the situation with the option when an enterprise undergoes reorganization. In this case, a significant change is implied: the company may move production or office, change the field of activity or some conditions. When a person acquires an enterprise and it comes under his complete control, he has the right to change something at his own discretion. These may be working conditions, the main company policy, daily routine. In this case, a new collective agreement is concluded with the employees, which will indicate all changes.

If a new agreement is signed with employees and it is planned to change significant conditions, then it is necessary to warn employees about this 2 months in advance. This is all carried out on an official form, and the employee signs the notice. Then a new one is concluded with him. This is important for the reason that a new entry may be made in his work book (for example, when changing the name or form of ownership).

If the employee does not agree to work under the new conditions, then the employment contract with him is terminated and the order indicates precisely this basis. At the same time, he is also paid severance pay. If, when changing ownership, only the management of the company can be fired, then according to this wording, the employment relationship with any employee of the enterprise is terminated - this is completely legal.

Violation of labor duties by an employee

This basis is the most complete and detailed for the reason that it implies several essential points at once. But at the same time, each of them requires a clear recording of the fact of a violation in accordance with the procedure that is provided for such cases.

It is paragraph 6 of Art. 81 is considered the most controversial. The reason, first of all, is that each employer has every right to interpret it in its own way. The list of responsibilities, work schedule and other rules of the organization are specified in the employment agreement. Although a collective agreement cannot contradict any clearly approved state regulations, but they often refer specifically to the fact that when hired, the employee fully agreed with the signed agreement.

Paragraph 6 simultaneously highlights several points (subparagraphs) that fit this formulation:

• . Absenteeism can already be considered if a person is away from work for more than 4 hours. In this case, it is necessary to convene a special commission in order to record the fact of absence from work.
• Being intoxicated or under the influence of drugs. This fact is recorded by the commission based on characteristic features. If a person has characteristic symptoms (for example, problems with speech) due to poor health, then he may require calling an ambulance. You can also go to the hospital and get tested to refute the accusations of the company management.
• or disclosure of entrusted secrets - we are talking about state, banking or corporate.
• Violation of safety regulations, if this entailed any serious consequences. At the same time, it is easiest to fire a person in the first place if his actions caused harm to others (or could cause harm). But even if the employee violated the rules, and this caused harm only to him, the employer still has the right to fire him, since there was a potential danger for other persons.

Additionally, the article also contains paragraph 5, which emphasizes the possibility of terminating the employment relationship and not immediately. That is, if an employee makes mistakes, then at some point he may be fired. For example, this is the case with delays: at least 3 of them must be recorded.

All this kind of information is recorded in the presence of a special commission, which signs an act indicating all aspects of the violation. But it is also important to take into account the fact that it is not always possible to accuse a person of such a violation. For example, if he proves that the circumstances are independent of himself (flooding due to rain, heavy snowfall, train breakdown), then the norm cannot be applied. An employee can be dismissed for this only if the violation occurred for objective reasons that the person could influence.

Loss of trust

This basis is regulated by paragraph 7 of Art. Sometimes employers take advantage of the ignorance of employees or simply incorrectly interpret this norm themselves, simply implying some personal problems in the team, when the employee cannot be relied upon. In fact, this norm is usually understood as clear grounds that give the right to terminate the employment relationship between the employee and the employer:

• If a man . As a general rule, in case of theft, a criminal case should be opened against him and his salary collected. If this was done intentionally, then such actions can lead to charges and a court sentence. Then, on the basis of the issued sentence, you can dismiss with the indication of this article. But even if it is recognized that the person did not do this on purpose (for example, he lost funds through negligence), this does not relieve him of responsibility. The same goes for cashiers who make shortages. Even if the lack of funds in the cash register was compensated voluntarily, he still has the right to dismiss for repeated similar violations, guided by this article.
• Providing false information about your income and expenses. This often concerns officials who must file an income tax return. But at the same time, a more serious problem is possible, when a person was provided with false information by a spouse with whom he does not live, or who simply wanted to hide from him the true amount of her financial income (a declaration is also submitted for close relatives). It is impossible to formally force another person to provide truthful information, since this would already be an invasion of his privacy, which is unacceptable. But blaming the civil servant himself for this will also be unfair and illogical.
• Storing funds in foreign banks. Even if a person did not hide this, but specifically for his position it is provided as an unacceptable fact, then he can be fired.

The employer has the right not to take advantage of this opportunity - this is his right, not his obligation.

Committing an immoral act

One of the most controversial provisions of Article 81 of the Labor Code of the Russian Federation. It applies exclusively to workers involved in educational institutions. The main difficulty is that there is no such interpretation of immoral behavior anywhere. Simply put, each person has purely personal concepts of morality, and therefore it is very difficult to say clearly what is an immoral act and what is not.

In addition, it may be difficult to clarify what exactly applies to educational institutions. Formally, any university can be classified in this category, but the students there are already adults and have largely formed personalities.

When looking at original examples, one can immediately refer to the relationship between teacher and student. In fact, this is explicit. But, on the other hand, if this is a relationship between an adult teacher and a schoolgirl, then this is already a criminal case that will be dealt with by law enforcement agencies. And if this is a relationship between a university teacher and a student, then in fact there may not be anything special in their relationship, so it is illogical and unfair to equate such an act as immoral.

The same should be said about behavior outside the institution. For example, if a teacher drinks alcohol during non-working hours, then this can in fact be considered his personal right. The same can be said about intimate relationships. In addition, it is also important to provide evidence of the immoral act. If you record any such actions on camera, you can even get a lawsuit for invasion of a person’s privacy, which is unlawful.

Thus, although Article 81 paragraph 8 provides for such a possibility, in practice it can be very problematic to implement it. This can only be done if the fact of the immoral act has become generally known or if the employee himself does not deny it. Otherwise, this can often be easily challenged in court.

Violation of labor duties by the manager, making an unreasonable decision

Paragraph 9 of this norm determines that the management team of the company may be held liable for the fact that their decisions resulted in the loss of property, its damage or any other material damage companies.

When taking on the position of head of an enterprise, a person must understand the seriousness of this position and the responsibilities assigned to him. It would be wrong to make any rash decision that could provoke disastrous consequences for the company.

For example, if a manager decided to start work on time when a storm warning was announced, then if equipment is damaged at that moment, he will bear full responsibility financial liability. A person can also be fired based on this rule.

The same can be said about the image of the enterprise. The Labor Code determines that if the head of a company has compromised the company through his actions, approved defamatory advertising, then he can be fired for undermining the image. At the same time, it is quite possible to recover from him also moral damages and part of the losses incurred for the promotion of refutations.

This is also possible in relation to the chief accountant, due to whose mistakes fines and other sanctions were imposed on the company, limiting the company’s activities.

Providing false documents

In this case, the employee provides the employer with a fairly large package of documents that are provided for by law or the rules of the given enterprise for a specific case.

These can be diplomas, medical certificates, personal documents, etc. Regardless of whether original documents or copies are to be submitted, they must provide only truthful information about themselves.

If it is revealed that a document has been falsified or the employee has independently corrected something in the original, this can easily lead to dismissal in accordance with this article.

Depending on what particular fact of forgery has been identified, a decision will be made to report to law enforcement agencies. For example, if an employee, for personal reasons, reduced her age in her passport, then this may not be reported. But if a person has forged a diploma or passport, then this is a significant and gross violation of current legislation and entails criminal liability for both the manufacturer of the forged document and its user.

If, thanks to forged documents, a person received any additional material benefits, then he will be obliged to fully compensate the employer or the state. For example, if, on the basis of a fake medical certificate, he received any additional payments as a disabled person.

In some cases, the employer may even demand compensation for damage caused. For example, if a doctor provided a fake diploma and at the same time damaged the image of a private clinic with his incompetent work, then the management has the right to legally demand compensation from him for moral damages and losses to the company.

Often management can move on to direct intimidation with more serious consequences, but if the employee is confident that he is right, then he should in any case seek protection from the competent government authorities.

Sometimes the manager openly takes advantage of the ignorance of the employees or is not very competent in personnel matters (often this is possible in private enterprises, when the manager simultaneously performs the functions of an accountant or HR specialist). When dismissing, some legislative norms are interpreted slightly differently, and the employee, out of ignorance, does not seek to verify the authenticity of the manager’s words. This is completely false. If the dismissal occurred at the initiative of the employer and a corresponding entry was made about this in the work book. The article and paragraph of this norm are indicated there. Next, the employee first of all needs to familiarize himself with the wording of this norm and what the registration procedure should be in order for the dismissal to be lawful. If there are any violations, then it is necessary to prepare a complete list of documents and apply for protection of your rights.

To decide where to go, it is important to first determine the stated requirements: if there are any material requirements, then the issue needs to be resolved only in court. In other cases, you can contact the Labor Inspectorate. This body has a huge list of powers, but it will not be able to forcibly collect anything from the company. It is also practically impossible for representatives of this organization to be reinstated. You can, of course, first try to resolve the issue through the Labor Inspectorate (often employers still comply with its instructions), and then, if necessary, go to court, but then it will take more time.

In case of wrongful dismissal, the employee will have the right to receive not only his place of work back (to be reinstated in exactly the same position from which he was unlawfully dismissed), but also to receive wages for this period, all compensation, as well as moral damages (practice shows However, the court rarely awards moral damages - only financial losses actually caused).

You can go to court at the place of registration of the enterprise or your own. But it is important to take into account the fact that this must be done within 2 months after the official issuance of the dismissal order. Otherwise, it will be impossible to prove anything. The only exceptions are those cases where the plaintiff proves that he really could not, for objective reasons, go to court in a timely manner.

The application must consist of several points:

• details (who is filing the claim, against whom and to which court);
• essence of the question;
• applications (list of documents);
• requirements.

You will be required to attach: a dismissal order, a certificate of income (on the basis of the data in it the claims for the claim will be calculated), as well as any additional documents that are relevant to the case. For example, if a woman was laid off from her job, but she has a child under 3 years old, then it is necessary to additionally provide his Birth Certificate.

It is also necessary to pay attention to the fact that the claim must always be drawn up in compliance with the standard standards for such appeals. Simple and understandable rules will help to significantly increase the chances of a successful resolution of a controversial issue in favor of the plaintiff, as well as a quick consideration of the claim without delaying the process.

The basic rules include:

• Adhere to exclusively business style. Any requests containing obscene language or threats will be left without consideration.
• State the essence of the problem in detail, but to the point. Any descriptions of your emotions should be excluded.
• Events are presented in strictly chronological order.
• It is best to type the claim on a computer, since anything written in unclear handwriting will also be returned for revision.
• The text should contain as many references as possible to current regulations that confirm the validity of the stated requirements.
• It is recommended to attach as many documents as possible relevant to the case under consideration.
• If necessary, it is possible to include witnesses in the case.
• If any attempts have previously been made to resolve the dispute out of court (a complaint was sent to the company management or an appeal was filed to the Labor Inspectorate), then it is important to mention this. Even if for some reason the appeal was left without consideration, it still needs to be attached to the case and attention should be focused on the fact that there was no response. If an official response has been submitted, then the plaintiff provides a copy to the court.

To avoid any problems with registration statement of claim best to use standard sample of this document, simply indicating in it the parameters for your case.

Thus, Article 81 of the Labor Code fully defines the list of grounds on which an employee can be dismissed against his will. Additionally, each of these points can be detailed regulations or employment contract. But at the same time, this cannot contradict Article 81. If an employee is fired illegally, then he must necessarily go to court to protect his rights. It is important to approach your duties as responsibly as possible in order to avoid such unpleasant situations.

An employment contract can be terminated by the employer in the following cases:

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

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

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

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

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

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

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

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

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

d) theft (including small) of someone else’s property, embezzlement, intentional destruction or damage at the place of work, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

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

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

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or submit incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition individual categories persons to open and have accounts (deposits), store cash cash and values ​​in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments";

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid. - Federal Law of June 30, 2006 N 90-FZ;

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

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

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

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (as vacant position or a job that corresponds to the employee’s qualifications, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of trust on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of trust, provided for in Article 15 Federal Law dated December 25, 2008 N 273-FZ “On Combating Corruption”.

Comments to Art. 81 Labor Code of the Russian Federation

1. Termination of an employment contract is one of the most difficult types joint activities employer and employee, so it should be planned. A written plan for terminating an employment contract will allow the employer not to make a mistake, convince the employee of the legality of dismissal, gain experience in cases of dismissal, and can also simultaneously serve as a plan for speaking in court. The plan will allow the employee to evaluate the employer’s activities in order to adjust their behavior in these conflicting relationships.

Sample plan

p/p Legal

fact-action Legal

fact-event Proof

legal

fact Date of occurrence

new laws

for dismissal Termination date

rights

on leave-

The dismissal process consists of the stages of acquiring the right to dismiss, exercising this right and overcoming the consequences of dismissal. In order to terminate an employment contract, the employer must acquire the right to dismiss. It arises in the presence of legal facts, some of which create through their actions employee, and part is the employer. For example, an employer fired an employee for 10 violations committed within 6 months, under clause 5 of Part 1 of Art. 81 TK. However, the employer did not create the necessary legal act: he issued oral penalties for violations, not written ones, and therefore the dismissal of the employee is illegal. The right to dismissal arises on a strictly defined day. It exists for a certain period of time. If the employer terminates the employment contract before this right arises or at a time when it has already been lost, such termination is called arbitrariness, or a violation of the law, and the employee must be reinstated. The legal facts that give rise to the right to dismissal are named in the Labor Code. Efficiency labor legislation upon termination of an employment contract, it will increase if the grounds for dismissal are specified only in the Labor Code, and not in other laws, as is currently the case (for example, laws on education, on municipal service, etc.). It would be advisable to state all the legal facts giving rise to the right to dismissal in one paragraph, for example, the legal facts for dismissal under clause 1, part 1, art. 81 of the Labor Code are also contained in Art. Art. 179, 180 TK.

2. To terminate an employment contract upon liquidation of an organization or termination of activities by an individual entrepreneur (clause 1, part 1, article 81 of the Labor Code), the following legal facts are required:

1) liquidation of the organization. The document confirming this fact is the liquidation order.

A legal entity can be liquidated (clause 2 of Article 61 of the Civil Code): by decision of its founders (participants) or a body of the legal entity authorized to do so by the constituent documents, including in connection with the expiration of the period for which it was created entity, with the achievement of the purpose for which it was created; by a court decision in case of gross violations of the law committed during its creation, if these violations are irreparable, or carrying out activities without proper permission (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, including a public or religious organization (association), a charitable or other foundation, activities that contradict its statutory goals, as well as in other cases provided for by the Civil Code.

A legal entity, with the exception of a state-owned enterprise, institution, political party And religious organization, by a court decision may be declared insolvent (bankrupt). State Corporation may be declared insolvent (bankrupt) if this is permitted by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if this is established by law providing for the creation and operation of such a fund. The recognition of a legal entity as bankrupt by the court entails its liquidation (clause 1 of Article 65 of the Civil Code).

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

2) mandatory personal written warning to the employee about the liquidation of the organization against signature at least 2 months in advance. before dismissal (part 2 of article 180 of the Labor Code). According to Part 3 of Art. 180 of the Labor Code, the employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the specified two-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. For example, the employer warned the employee about dismissal 2 months in advance. After 1.5 months. with the consent of the employee, he was fired, paying compensation for the remaining half a month before dismissal;

3) in accordance with Art. 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”, when making a decision to liquidate an organization, reduce the number or staff of the organization’s employees and the impossibility of terminating employment contracts with employees, the employer is obliged to notify the employment service authorities in writing about this no later than 2 months in advance. before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements to them, the terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization’s employees can lead to mass layoffs of workers - no later than 3 months in advance. before the start of the relevant activities;

4) in accordance with Art. 62 of the Civil Code, the founders (participants) of a legal entity or the body that made the decision to liquidate the legal entity are obliged to immediately notify the authorized body about this in writing. government agency to enter information into the Unified State Register of Legal Entities that the legal entity is in the process of liquidation;

5) liquidation of the organization and its divisions requires advance notice no less than 3 months. relevant trade unions and holding negotiations with them on the observance of the rights and interests of trade union members (Article 12 of the Federal Law of January 12, 1996 N 10-FZ “On trade unions, their rights and guarantees of activity”).

The body by whose decision the liquidation of the organization was carried out must ensure payment to the dismissed employees of the retained wages for the period of employment at the location of the liquidated enterprise.

If the liquidated organization does not have funds intended for settlements with dismissed citizens, the body determines a legal successor who is responsible for making these payments.

Upon termination of the employment contract due to the liquidation of the organization (Clause 1, Part 1, Article 81 of the Labor Code), the dismissed employee is paid severance pay in the amount of the average monthly salary, and he also retains the average monthly salary for the period of employment, but not more than 2 months. from the date of dismissal (including 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 employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it.

3. Termination of an employment contract to reduce the number or staff of an organization or individual entrepreneur (clause 2, part 1, article 81 of the Labor Code). For dismissal on this basis, the following facts must be present:

1) an order to reduce the number or staff, a new staffing table;

2) identification of specific employees to be laid off. When warning an employee about dismissal, the priority right to remain at work, provided for in Art. 179 TK.

When reducing the number or staff of all employees from among whom the employee to be reduced is to be selected, they are compared according to the indicators established in Art. 179 Labor Code, primarily in terms of labor productivity and qualifications. Labor productivity is measured by the amount of products produced by a worker in the sphere of material production per unit of working time (hour, shift, working day, month, quarter, year, etc.). Labor productivity is determined by the amount of time spent producing a unit of output. If it is necessary to reduce staff, it is advisable for the personnel department to create a table. It lists the employees, of which those who are subject to reduction will be named, and the indicators that are given in Art. 179 TK for comparison.

The productivity of many workers may be the same. There are many positions for which it is difficult to determine its difference, so the employer often considers it the same. But there are no identical qualifications. Qualification includes 4 elements: knowledge, abilities, skills, perceptions. First of all, no knowledge is the same. In order to determine the differences, you need to create a questionnaire based on the state educational standard for your specialty;

3) written personal warning to the employee about the upcoming layoff at least 2 months in advance. according to Art. 180 TK.

According to Art. 180 of the Labor Code, the employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the period specified in Part 2 of this article, 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;

4) the employer is obliged to inform the employment service authorities in writing about the reduction in numbers or staff no later than 2 months in advance. before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements for them, the terms of payment for each specific employee, and if the decision to reduce the number or staff of the organization’s employees can lead to mass layoffs of workers - no later than 3 months . before the start of the relevant activities (Article 25 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”).

The main criteria for mass layoffs are indicators of the number of workers being laid off in connection with the liquidation of enterprises, institutions, organizations or a reduction in the number or staff of workers for a certain calendar period (Regulations on the organization of work to promote employment in conditions of mass layoffs, approved by the Resolution of the Council of Ministers - Government of the Russian Federation dated February 5, 1993 N 99).

These include:

a) liquidation of an enterprise of any organizational and legal form with 15 or more employees;

b) reduction in the number or staff of the enterprise’s employees in the amount of: 50 people or more within 30 calendar days; 200 people or more within 60 calendar days; 500 people or more within 90 calendar days;

c) dismissal of workers in the amount of 1% of the total number of employees in connection with the liquidation of enterprises or reduction of numbers or staff within 30 calendar days in regions with a total number of employees of less than 5 thousand people;

5) staffing table indicating vacancies;

6) an offer of another job, which can be made as many times as there are vacancies during the notice period. If an organization develops vacant place, then it must first be offered to the employee to be laid off, thereby recognizing his right to priority occupation of the resulting vacancy;

7) evidence of the employee’s refusal to be transferred to another job, as well as evidence of the offer of such work or that the employer did not have the opportunity to transfer him;

8) notification (in writing) to the elected trade union body of dismissal at least 2 months in advance. according to Art. 82 TK;

9) notification (in writing) to the elected trade union body about mass dismissal no less than 3 months. according to Art. 82 TK;

10) a reasoned opinion of the trade union committee on the dismissal of only a trade union member by virtue of Art. 373 TK;

11) compliance with the terms of termination of the employment contract - no later than 1 month. from the date of receipt of the reasoned opinion of the elected trade union body upon dismissal of a trade union member in accordance with Art. 373 TK.

According to Art. 261 of the Labor Code it is prohibited to dismiss pregnant women, as well as women: with children under 3 years of age; single mothers raising children under the age of 14 (disabled child under 18), other persons raising these children without a mother.

4. To terminate an employment contract due to the discovered inconsistency of an employee with the position held or the work performed due to insufficient qualifications confirmed by the results of certification (clause 3, part 1, article 81 of the Labor Code), the following legal facts and documents are required:

1) establishment of inconsistency with the position held - the employee does not fully or partially fulfill all or part of his duties or at least one of the duties assigned to him by the employment contract or internal labor regulations. The fact of non-compliance can be detected by the head of a structural unit during a daily assessment of the employee’s performance;

2) the discrepancy is permanent; no matter how hard the employee tries, he is not able to live up to his position;

3) a discrepancy can be judged no less than 2 weeks after its discovery, since one week allows one to judge the occurrence of a discrepancy and a week is needed to prove this fact;

4) a representative of the elected body of the corresponding primary trade union organization is included in the certification commission;

5) the decision of the certification commission confirming this fact;

6) an offer in writing of another job to the employee and his refusal (in writing). Staffing table confirming the availability of vacancies;

7) absence of the employee’s guilt in failure to fulfill labor duties;

8) the reason for the discrepancy is insufficient qualifications. It prevents the continuation of this work. Qualification consists of at least the following elements: knowledge, abilities, skills, which are recorded in the state educational standard for the specialty in the qualification directory.

5. To terminate an employment contract due to a change in the owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81 of the Labor Code), the following legal facts are required:

1) the dismissed employee is a manager, deputy manager or chief accountant;

2) there has been a change in the owner of the organization’s property.

6. To terminate an employment contract due to repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code), the following legal facts are required:

1) the employee violated discipline - did not fulfill his duties in whole or in part;

2) the duties that the employee did not fulfill in full or in part are written down in the employment contract, internal labor regulations, or in the job description, technical rules(in this case, the mentioned job description or technical rules and their compliance must be stated in the employment contract or rules);

3) the employee is guilty of failure to fulfill labor duties, committed a violation intentionally or through negligence;

4) employee second, third, etc. once he failed to fulfill his duties;

5) a disciplinary sanction was declared for the previous violation on the basis and in accordance with Art. 192 TK. Disciplinary action must be one of two types established in Art. 192 Labor Code: remark or reprimand;

6) the employee was required to explain in all cases of violations. If he refused to give an explanation, then a report about this is drawn up (Article 193 of the Labor Code);

7) no more than 1 year has passed since the imposition of the first penalty (Article 193 of the Labor Code), and based on the results of an audit or inspection of financial and economic activities - no more than 2 years from the date of the offense;

8) the first penalty has not been removed from the employee;

9) the employee is not in annual leave, on sick leave (Article 81 of the Labor Code);

10) from the moment of committing the second violation for which he is going to be fired, no more than 6 months have passed, based on the results of an audit or inspection of financial and economic activities - no more than 2 years from the date of its commission, and from the date of its discovery - no more than 1 month . (Article 193 of the Labor Code).

In addition to the listed facts, it should be borne in mind that when dismissing for disciplinary offenses, the employer must take into account: the severity of the offense committed; the circumstances under which it was committed; the employee's previous performance and behavior; his attitude towards work.

The employer is obliged to take into account the correspondence of the disciplinary sanction to the gravity of the offense committed. If a dismissed employee applies to the court with a claim for reinstatement at work and the court comes to the conclusion that the act actually took place, but the dismissal was carried out without taking into account its severity and other circumstances, the court may reinstate the employee at work, recognize the dismissal as having been carried out in excess by the employer their rights.

The courts are obliged, when considering a claim for reinstatement at work, to verify the correctness of the imposition of all disciplinary and social penalties laid down by the employer as the basis for the dismissal order, regardless of whether the claimant made demands to recognize them as unfounded;

11) if an employee committed several violations and only for one of them a disciplinary sanction was imposed on him, then upon dismissal he can be charged with all violations, despite the fact that disciplinary measures were applied for a number of violations.

7. Termination of an employment contract for absenteeism (absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than 4 hours in a row during the working day (shift) (subparagraph “a”, paragraph 6, part 1, article 81 of the Labor Code)) requires the presence of the following legal facts:

1) the employee committed absenteeism - was absent from the workplace for the entire working day or for more than 4 hours in a row during the working day. Absenteeism can be done with respect and not good reasons. Proof of this fact is the entry in the report card and witness testimony;

2) absenteeism without good reason;

3) from the moment it became known about the truancy, less than 1 month has passed, and 6 months have not passed from the moment the truancy occurred. (Article 193 of the Labor Code);

4) the employee is not on annual leave or sick leave (Article 81 of the Labor Code);

5) absenteeism is an absence not from work, but from the workplace. The document must define the boundary of the workplace, for example in the description of the workplace. At the same time, if in the employment contract workplace not specified, then by virtue of Part 6 of Art. 209 of the Labor Code, the workplace is considered a place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer (clause 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

8. Termination of an employment contract for appearing at work in a state of alcoholic, narcotic or other toxic intoxication (subparagraph “b”, paragraph 6, part 1, article 81 of the Labor Code) requires the following legal facts:

1) appearing at work means appearing during working hours at the place of work labor function or not at his workplace, but on the territory of an organization or facility where, on behalf of the employer, the employee must perform a labor function;

2) the employee’s drunken state or drug or toxic intoxication can be confirmed by both a medical report and other types of evidence, which will be assessed accordingly by the court; this may be an act of appearing at work while intoxicated, drawn up by two or more employees (clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2);

3) a written explanation is required from the employee (Article 193 of the Labor Code);

4) 6 months have not passed since the violation, and 1 month has not passed since the violation was discovered. (Article 193 of the Labor Code).

Here is one of the forms of the act that can be used as a sample after appropriate changes.

Medical documentation -

registration form N 307/у-05

Approved by Order

Ministry of Health and Social Development of Russia

Medical examination report

on the state of intoxication of the person who is driving

vehicle

See also Order of the Ministry of Internal Affairs of Russia dated August 4, 2008 N 676, approved. the form of the certificate of examination for the state of alcoholic intoxication and the protocol on referral for a medical examination for the state of alcoholic intoxication.

9. To terminate an employment contract for disclosing a secret protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (subclause “c”, clause 6 1 Article 81 of the Labor Code), the following legal facts are required:

1) the employee is admitted to secrets protected by law (state, commercial, official and other); proof of admission is an admission document;

2) the employee has disclosed a secret protected by law, including the personal data of another employee, which is confirmed by an act, witness testimony, and other evidence;

3) the work performed by the employee requires access to state secrets;

4) the competent authorities have terminated the employee’s access to state secrets;

5) the organization has a list of information constituting a commercial, official or other secret;

6) the protected secret has become known to another person; this is a person who is not admitted to a protected secret, or who is not admitted to the information that has been disclosed.

On the organization of work to classify information as a state secret, see Decree of the Government of the Russian Federation of February 28, 1996 No. 286-r. The list of information constituting a state secret established in Art. 5 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”, then it was specified by Decree of the President of the Russian Federation of November 30, 1995 N 1203 “On approval of the List of information classified as state secrets”.

A signature on non-disclosure of information constituting state secrets and on compliance with a special regime for working with such information cannot be considered other than evidence of the possibility of dismissal on this additional basis.

The conditions for terminating the access of an official or citizen to state secrets are established in Art. 23 of the Law of the Russian Federation "On State Secrets".

The access of an official or citizen to state secrets may be terminated by decision of the head of a government body, enterprise, institution or organization in the following cases:

termination of an employment contract with him in connection with organizational and (or) staffing activities;

a one-time violation of his obligations under the employment contract related to the protection of state secrets;

the occurrence of circumstances that are, according to Art. 22 of the above-mentioned Law of the Russian Federation is the basis for refusing an official or citizen access to state secrets.

Termination of an official's or citizen's access to state secrets is an additional basis for terminating an employment contract with him, if such conditions are provided for in the employment contract.

Termination of access to state secrets does not relieve an official or citizen from their obligations to not disclose information constituting a state secret.

An employer's decision to terminate an official's or citizen's access to state secrets and to terminate an employment agreement (contract) with him on this basis may be appealed to a higher organization or to court.

Instructions on the procedure for admitting officials and citizens of the Russian Federation to state secrets approved. Decree of the Government of the Russian Federation of October 28, 1995 N 1050.

If a citizen is removed from working with information constituting a state secret, a written conclusion is drawn up prepared by the unit for the protection of state secrets and structural unit, in which the specified citizen works. The conclusion is approved by the head of the organization.

This fact is reported in writing to the security authority, and a corresponding note is made on the card.

10. To terminate an employment contract for theft (including minor) of someone else’s property at the place of work, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of the body authorized to apply administrative penalties (subparagraph “d”) "Clause 6, Part 1, Article 81 of the Labor Code), the following legal facts are required:

1) the employee committed theft at his place of work;

2) property that has an owner is stolen;

3) the theft is established by a court verdict that has entered into legal force or by a resolution of the body authorized to apply administrative penalties;

4) no more than 6 months have passed since the theft, and for thefts identified as a result of an audit or inspection of financial and economic activities - no more than 2 years from the date of its commission;

5) no more than 1 month has passed since the discovery of the theft. The one-month period for applying such a measure is calculated from the day the court verdict enters into legal force, and in other cases - from the day the decision is made on an administrative penalty or on the application of public pressure measures.

11. To terminate an employment contract for violation by an employee of labor protection requirements (subparagraph “d”, paragraph 6, part 1, article 81 of the Labor Code), the following legal facts are required:

1) the obligation stated in the labor protection rules has not been fulfilled;

2) failure to fulfill the obligation entailed grave consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

3) there is the employee’s fault.

12. Termination of an employment contract for the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give grounds for loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code), is possible if the following legal facts exist :

1) the employee directly services monetary or commodity assets (reception, storage, transportation, distribution, etc.), and this fact is recorded in the employment contract, job description;

2) the employee committed theft or another mercenary offense at work;

3) the employee committed theft or another mercenary offense not related to work (clause 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2);

6) the employee is guilty of a violation;

7) 1 year has not passed since the date of discovery of the misconduct by the employer (Part 5 of Article 81 of the Labor Code).

13. Termination of an employment contract for the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (Clause 8 Part 1 Article 81 of the Labor Code) requires the following legal facts:

1) the employee committed an immoral offense. An undeniable immoral offense is mental or physical violence against students. Violence is the physical or mental impact of one person on another, violating the right of citizens to personal integrity guaranteed by the Constitution of the Russian Federation (Article 22). Physical violence is expressed in a direct impact on the human body: beatings, bodily harm, torture different ways. Mental violence consists of influencing a person’s psyche through intimidation and threats in order to break a person’s will to resist;

2) the employee’s misconduct is incompatible with the continuation of this work;

3) the employee, by the nature of his activity, performs educational functions (teachers; instructors; industrial training masters; educators preschool institutions; music directors; assistants; senior teachers; associate professors; professor);

4) the employee is not on annual leave or sick leave;

5) a written explanation is requested from the employee;

6) 1 year has not passed since the date of discovery of the misconduct by the employer (Part 5 of Article 81 of the Labor Code).

14. Termination of an employment contract with the heads of the organization (branch, representative office), his deputies, chief accountants for making an unreasonable decision that resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code ), requires the following legal facts:

1) the dismissed person - the head of the organization (branch, representative office), his deputy, chief accountant;

2) the dismissed person made an unreasonable decision. The unreasonableness of a decision is determined by the consequences: if adverse consequences occur, then the decision is recognized as unfounded (clause 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2);

3) the decision entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

4) the person being dismissed is at fault for making an unreasonable decision.

15. Termination of an employment contract for a one-time gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81 of the Labor Code) is possible if the following legal facts exist:

1) the employee failed to fulfill one duty, and this failure was recognized as a gross violation of labor duties (for example, the violations listed in clause 6, part 1, article 81 of the Labor Code);

2) this failure is recognized as a gross violation of labor duties. The severity of the violation is determined by the possible or occurred consequences. The list of gross violations may be established in the charter or internal labor regulations. Such a gross violation can be considered failure to fulfill a production task recorded in the contract and other documents;

3) employee - head (deputy head) of an organization, branch, representative office, department, other separate division that has its own current or current account;

4) as a result of violation of labor duties, harm was caused to the health of the employee(s) or property damage was caused to the organization (clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2);

5) no more than 1 month has passed since the discovery of the violation, not counting the time the employee was ill or on vacation; no more than 6 months have passed since the commission of the offense, and according to the results of an audit or inspection of financial and economic activities - no more than 2 years from the date of its commission (Articles 192, 193 of the Labor Code);

6) the employee is not on annual leave or sick leave (Article 81 of the Labor Code);

7) a written explanation is required from the employee (Article 193 of the Labor Code);

8) the employee is guilty of a violation.

16. Termination of an employment contract for submitting false documents or knowingly false information to the employer when concluding an employment contract (clause 11, part 1, article 81 of the Labor Code) requires the following legal facts:

1) submission of false documents to the employer. The list of such documents is established in Art. 65 TK. The use of a knowingly forged document is a crime under Art. 327 CC;

2) falsification of a document. The forgery can be complete or partial;

3) the employee is guilty of submitting false documents or knowingly submitting false information.

17. Termination of an employment contract with a manager, a member of the collegial executive body of the organization for an offense defined in the employment contract (clause 13 of Article 81 of the Labor Code) requires the following legal facts:

1) the employee is the head of the organization;

2) an additional basis for termination of the contract is written in the employment contract. It should be borne in mind that additional grounds for dismissal can only be established for enterprise managers;

3) the manager committed an offense specified in the employment contract;

4) the manager is guilty of failure to fulfill a duty, for example, failure to achieve the planned production result.

18. Additional grounds for termination of an employment contract with teaching staff are established in Art. 56 of the Law of the Russian Federation of July 10, 1992 N 3266-1 “On Education”.

For dismissal for repeated gross violation of the charter within a year educational institution(clause 1 of article 336 of the Labor Code), as well as under sub. 1 clause 4 art. 56 of the Law of the Russian Federation “On Education” the following grounds are required:

2) he violated the charter of the educational institution twice during the year. The beginning of the year is determined by the date of the first violation;

3) the charter establishes a list of gross violations, having committed which the mentioned employees can be dismissed under this subclause;

4) teaching worker is guilty of non-fulfillment or poor performance of his duties stated in the charter;

5) he is not on vacation and is not temporarily disabled (Article 81 of the Labor Code).

19. Dismissal for violence against the student’s personality under clause 2 of Art. 336 Labor Code, as well as under sub. 2 clause 4 art. 56 of the Law of the Russian Federation “On Education” requires the following legal facts:

1) the employee belongs to the category “teaching worker”;

2) the teacher once used a method of education associated with violence against the student’s personality: mental, physical.

20. Dismissal for appearing at work in a state of alcohol, drug or toxic intoxication (subparagraph 3, paragraph 4, article 56 of the Law of the Russian Federation “On Education”) is identical to the procedure for dismissal under subparagraph. "b" clause 6, part 1, art. 81 of the Labor Code, since the grounds for dismissal are the same.

21. Termination of an employment contract due to violation of the mandatory rules established by the Labor Code or other federal law when concluding an employment contract under Art. 84 TK. To dismiss on this basis, the following legal facts are required:

1) conclusion of an employment contract in violation of a court verdict on deprivation specific person the right to hold certain positions or engage in certain activities;

2) conclusion of an employment contract to perform work that is contraindicated for a given person for health reasons in accordance with a medical report;

3) lack of an appropriate document on education, if the work performed requires special knowledge in accordance with federal law or other regulatory legal acts;

4) in other cases provided for by federal law.

22. Dismissal of an employee under Art. 81 Labor Code is a right, but not an obligation of the employer. The release of personnel, regardless of its reasons, must be economically feasible and socially effective. When releasing personnel, the employer is recommended to comply with the following rules:

1) the reduction should be carried out in relation to jobs, i.e. the reduction should affect those employees whose jobs are being reduced;

2) it is useful to avoid additional costs during reduction, except for those provided for by law;

3) after the reduction, there should be no subsequent costs.

In practice, the following indirect abbreviations are used, widely recommended in various comments:

1) termination of employment. This measure makes it possible, at the expense of employees’ own attrition, which is approximately 5% of the total number of personnel, to employ redundant workers;

2) moving to other free places is unnecessary work force;

3) reduction of working hours. In this case, the excess number will be eliminated due to the fact that more workers will be required. There are several options for this reduction. This is the abolition of overtime and overload of some workers, the transfer of some workers to part-time work, etc.;

4) cancellation of the transfer of orders to other organizations, if these orders can be completed on their own, without losing the connections necessary for the organization;

5) introduction of a shortened working week.

Practice has shown that a 10% reduction in working hours does not lead to a new recruitment of labor. At the same time, it leads to longer working hours. Moreover, a reduction in working hours can be carried out either with or without a reduction in wages. In addition to these common measures to reduce personnel, individual companies also carry out others, for example: 1) payment monetary compensation upon dismissal, equal to 7 - 10 monthly salaries (depending on length of service and other indicators established by the company itself); 2) early retirement; 3) transition to part-time work.

23. See also paragraphs 23 - 52 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2.

24. Social support for workers dismissed during the liquidation of coal (oil shale) mining (processing) organizations is established in Art. 23 of the Federal Law of June 20, 1996 N 81-FZ "On government regulation in the field of coal mining and use, on the features of social protection of employees of coal industry organizations."

In excess of the measures established by the legislation of the Russian Federation on labor social support employees dismissed during the liquidation of coal (oil shale) mining (processing) organizations, who on the day of dismissal have at least 5 years of work experience in such organizations and the right to pension provision in accordance with the legislation of the Russian Federation, are provided with a one-time benefit in the amount of 15% of average earnings for each year of work in organizations for the extraction (processing) of coal (oil shale) (clause 1 of the Law).

Workers released during the liquidation of coal (oil shale) mining (processing) organizations located in the Far North and equivalent areas, who have at least 10 years of underground work experience and have reached retirement age, are provided with housing at a new place of residence in accordance with legislation of the Russian Federation (clause 2 of the Law).

For employees who have the right to pension provision in accordance with the legislation of the Russian Federation and work experience of at least 10 years in organizations for the extraction (processing) of coal (oil shale), units of paramilitary rescue units, mine construction organizations, upon dismissal due to the liquidation of these organizations provide for additional pension provision (non-state pensions) (clause 3 of the Law).

In the event of the sale of a block of shares in organizations for the extraction (processing) of coal (oil shale), which is in federal ownership, or the liquidation of mines (open pits) of the coal industry, units of paramilitary emergency rescue units, free ration coal is provided to the following categories of persons if they live in coal mining areas regions in houses with stove heating or in houses in which the kitchens are equipped with fireplaces heated by coal, and if they exercised such a right before the sale of a stake in organizations for the extraction (processing) of coal (oil shale), which is in federal ownership, or before the liquidation of the mines (open-pit mines) of the coal industry, units of paramilitary rescue units:

families of workers of mines (open-pit mines) of the coal industry and units of paramilitary rescue units who died in the performance of their work duties or as a result of occupational disease, if the wife (husband), parents, children and other disabled family members of these workers receive a survivor's pension;

pensioners who have worked for at least 10 years in mines (open-pit mines), units of paramilitary emergency rescue units, whose pensions were assigned in connection with work in organizations for the extraction (processing) of coal (oil shale) and units of paramilitary emergency rescue units;

widows (widowers) former employees organizations;

disabled workers, disabled people due to a general illness, if they enjoyed the right to receive rationed coal before the onset of disability (clause 4 of the Law).

Employees released during liquidation have a priority right to purchase production premises liquidated organizations for the extraction (processing) of coal (oil shale) or for their lease for organizing entrepreneurial and individual labor activities (clause 5 of the Law).

Art. 81 Labor Code of the Russian Federation: questions and answers

Art. 81 Labor Code of the Russian Federationcontains not only a list of grounds on which an employer can initiate the dismissal of an employee, but also a number of basic rules for applying these grounds. Let's consider the issues that arise when terminating an employment contract initiated by the employer.

What groups of grounds for dismissal are identified by Article 81 of the Labor Code of the Russian Federation?

The reasons for dismissals given in Article 81 of the Labor Code of the Russian Federation can be divided into the following groups:

• Occurring due to changes in organizational structure employer - this is paragraph. 1 (liquidation of employer), 2 (reduction of staff), 4 (change of owner).
• Related to the presence of the employee’s guilt - these are paragraphs. 5-6 (not a single or one-time gross violation of labor discipline), 7-7.1 (loss of trust), 8 ( immoral act), 9-10 (guilt of the manager), 11 (concealment or distortion of information about oneself).
• Others are paragraphs. 3 (inconsistency with the position held), 13 (additional grounds for the manager), 14 (other cases of dismissal).

You can also highlight among them those that will correlate:

• With all employees - this is pp. 1-3, 5-6, 11.
• With employees of certain positions (occupations) - paragraphs. 7 (materially responsible persons), 7.1 (persons who may have a personal interest in the results of their decisions), 8 (teachers), 14 (persons defined in the relevant legislative acts).
• Only with managers - this is pp. 4, 9 (making an unjustified decision), 10 (gross misconduct), 13 (additional evidence).

For any case of dismissal under Article 81 of the Labor Code of the Russian Federation, it is necessary to have a documentary justification for its application and to comply with certain procedures prior to the termination of the employment agreement. It is prohibited to dismiss an employee who is absent for good reasons (vacation of any kind, sick leave).

The inadequacy of the position and the guilt of the employee must always be proven and first considered taking into account mitigating circumstances. If the staff is reduced and the position is recognized as unsuitable, the employer must try to employ him before dismissing the employee.

What distinguishes the dismissal processes during liquidation and reduction (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation)?

A complete picture of the procedure for dismissal due to the liquidation of an employer or in connection with a reduction in its staff, reflecting the whole variety of possible situations, emerges only as a result of an analysis of several articles of the Labor Code of the Russian Federation. Since there is no fault of the employee in the upcoming dismissal, conditions must be created that maximally mitigate its consequences for the employee. The employer incurs significant material costs.

The fact that the employee will be dismissed due to liquidation or reduction, he is notified in writing and in advance, no less than:

• 2 months in advance if the employee is an ordinary full-time employee (Article 180 of the Labor Code of the Russian Federation);
• 1 week if the employee was hired for a season (Article 296 of the Labor Code of the Russian Federation).

An employee facing redundancy is offered in writing the vacant positions available to the employer and is fired only if he refuses them.

Dismissal for both of these reasons is accompanied by the payment of severance pay, the purpose of which is to pay the dismissed employee for the time that, according to the law, is considered sufficient to find a new job:

• up to 3 months for an employee who is an ordinary full-time employee (Article 178 of the Labor Code of the Russian Federation);
• 2 weeks for an employee hired for a season (Article 296 of the Labor Code of the Russian Federation);
• Up to 6 months for an employee who worked in the Far North (Article 318 of the Labor Code of the Russian Federation).

If a full-time employee agrees to resign before the end of the 2-month warning period about the upcoming dismissal, then he will have the right to receive not only mandatory severance pay (Article 178 of the Labor Code of the Russian Federation), but also additional (Article 180 of the Labor Code of the Russian Federation). The amount of the additional benefit will be determined from the same average cost per day as the mandatory benefit, but other working days will be paid: those that make up the gap between the date of actual dismissal and the date of completion of the 2-month warning period about the upcoming dismissal. It will be paid on the day of dismissal.

Also, upon dismissal, a mandatory benefit is paid, which will be paid in full to an employee hired for a season (for 2 weeks allocated for job search), and to a former full-time employee - only for 1 upcoming full month. Further receipt of severance pay by a former full-time employee will occur as follows:

• For the 2nd month (full if the employee was not employed there, or incomplete if employment occurred this month), benefits can be received upon its expiration upon presentation of evidence of lack of employment (work book) to the former employer. In the same way, benefits for the 3rd month are paid to an employee who worked in the Far North.
• For subsequent months (3rd for a former regular full-time employee and 4-6th for an employee who worked in the Far North), benefits are paid in the same manner, but with the obligatory presentation of a certificate from the employment service confirming that the person immediately after dismissal ( no later than 2 weeks for a former regular full-time employee and 1 month for an employee who worked in the Far North) registered with it.

Who fires the only employee?

It can be quite realistic that a participant (founder) of a liquidated legal entity is at the same time its director and remains the only employee. The order of his actions in organizing own dismissal should be like this:

• As a participant (founder), he decides to liquidate the legal entity, appointing himself as the liquidator, to whom all functions for managing the legal entity are transferred.
• He, as a participant (founder), decides to resign as a manager in connection with the liquidation of the legal entity and the appointment of a liquidator.
• As the head of a legal entity, based on the decision of the participant (founder), he issues an order to resign as a manager due to liquidation. On this basis (clause 1 of article 81 of the Labor Code of the Russian Federation), he dismisses himself, making an appropriate entry in the work book, which he has every right to do (clause 45 of the rules of employment work records, approved by Decree of the Government of the Russian Federation dated April 16, 2003 No. 225).
• As a participant (founder), no later than 3 calendar days from the date of the decision on liquidation, he informs the registering Federal Tax Service about this in a special notification. The appointment of a liquidator is also reported there using a special form.
• As a liquidator, he publishes information about liquidation in the press, then conducts an inventory, the data of which will form the basis of the interim liquidation balance sheet.
• As a liquidator, before the date of exclusion of a legal entity from the Unified State Register of Legal Entities, it performs all necessary actions to terminate its existence, including submitting reports to the Federal Tax Service and paying taxes.

Read more about the composition and procedure for drawing up a balance sheet in the material “Balance sheet (assets and liabilities, sections, types)” .

How to fire an employee who is not appropriate for the position (clause 3 of Article 81 of the Labor Code of the Russian Federation)?

An employee may not be able to cope with the work assigned to him for several reasons, for example:

• His qualifications were overestimated by the employer upon appointment to the position.
• The working conditions in which the employee is placed do not allow him to perform work at the proper level.

In both cases, the employee is not at fault. But if in the second case his unsatisfactory work cannot be considered a non-conformity, then the first one falls under this definition.

An employee can be recognized as unsuitable for a position if he/she simultaneously has:

• Documented evidence of unsatisfactory performance.
• Conclusions of the certification commission created in accordance with the requirements of the law, to which the employee is invited to carry out his certification. The procedure for conducting certification and the criteria by which qualifications are assessed must comply with those approved by internal regulations.
• Participation in the certification commission of a representative of the trade union body (if one exists), of which the employee is a member (Article 82 of the Labor Code of the Russian Federation).

If recognition has taken place, the employee must be offered in writing a vacant position corresponding to his qualifications or a lower one. If the employer does not have one or the employee refuses it, then he can be fired.

This basis cannot be applied to:

• a young specialist, since he obviously does not have the necessary qualifications;
• to a minor without the consent of the labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation);
• pregnant woman (Article 261 of the Labor Code of the Russian Federation);
• a single mother with a child under 14 years of age or a disabled child under 18 years of age (Article 261 of the Labor Code of the Russian Federation);
• a person on vacation or sick leave (Article 81 of the Labor Code of the Russian Federation).

When for some reason the application of this basis turns out to be unacceptable, you can use the dismissal procedure for systematic disciplinary offenses under clause 5 of Art. 81 of the Labor Code of the Russian Federation, consistently applying to the employee all types of existing disciplinary sanctions.

Read more about existing types disciplinary punishments, read the article “Types of disciplinary sanctions under the Labor Code of the Russian Federation” .

What violations of discipline are considered gross and allow immediate dismissal?

Dismissal of an employee if he commits a single gross disciplinary offense related to work is possible immediately, bypassing educational measures (reprimand and reprimand). Such offenses are (Article 192 of the Labor Code of the Russian Federation):

• Absenteeism, which is equivalent to absence from the place considered working for the employee, for more than 4 hours in a row, as well as during the entire working day or entire shift (subclause a, clause 6, article 81 of the Labor Code of the Russian Federation).
• Appearing at work under the influence of any type of intoxicating substance (subparagraph b, paragraph 6, article 81 of the Labor Code of the Russian Federation).
• Disclosure of any (personal, state, commercial, official) secrets (subclause 6 of Article 81 of the Labor Code of the Russian Federation).
• Causing intentional harm (theft, embezzlement, destruction, damage) to someone else's property (subclause g, clause 6, article 81 of the Labor Code of the Russian Federation).
• Actions that resulted in the infliction of severe consequences on people (accident) and property (accident) or the creation of a high probability of such consequences (subparagraph 6 of Article 81 of the Labor Code of the Russian Federation).
• Actions that entail loss of trust: in terms of the values ​​being served (clause 7 of Article 81 of the Labor Code of the Russian Federation) or in relation to concealment (distortion) of information about one’s income and property (clause 7.1 of Article 81 of the Labor Code of the Russian Federation).
• An act of an immoral nature committed by a teacher (clause 8 of Article 81 of the Labor Code of the Russian Federation).
• The adoption by the head of a legal entity, his deputy or the chief accountant of an unfounded decision, which resulted in significant material damage to the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).
• Gross violation by the head of a legal entity or his deputy of his direct labor duties (clause 10 of article 81 of the Labor Code of the Russian Federation).
• Commitment by a teacher of a gross violation of the charter for the 2nd time within a year educational institution(Clause 1 of Article 336 of the Labor Code of the Russian Federation).
• Disqualification of an athlete or violation of anti-doping rules (Article 348.11 of the Labor Code of the Russian Federation).

How to properly formalize dismissal for absenteeism (clauses 5 and 6 of Article 81 of the Labor Code of the Russian Federation)?

Both clauses 5 and 6 of Art. can be applied to absenteeism. 81 of the Labor Code of the Russian Federation, since the legislation does not oblige the employer to immediately resort to dismissal. To begin with, he can choose other measures to suppress the employee’s misconduct (a reprimand or reprimand), and only if they turn out to be ineffective, the employer’s next decision regarding the repeated misconduct is dismissal.

An employee’s workplace is considered to be the one specified in his employment contract. Therefore, it turns out to be quite difficult to make claims regarding absence from the workplace to a person for whom the entire territory of the employer is defined as a workplace. In this case, having appeared on this territory, he may never approach his real workplace during the entire working day, and the employer will not have the right to accuse him of being absent there. For this reason, the accuracy of specifying the workplace in the employment agreement is of particular importance.

Working hours can be recorded in several documents:

• employment contract;
• internal labor regulations;
• shift schedule;
• order of the manager regarding a specific working day.

On the copy of the employment contract with the employee that belongs to the employer, there must be a note from the employee that he received his copy of the contract. Each of the other documents, if this document is related to a specific employee, is introduced to him against signature. In this way, a set of documents is formed indicating that the employee knows his workplace and working hours.

In order for an employee not to be able to challenge the decision made to dismiss him due to absenteeism, it is necessary to pay extreme attention to the following circumstances:

• Every violation committed must be immediately documented. This can be done by drawing up a memo addressed to the employer’s manager by the employee’s immediate supervisor or a representative of the HR department, or by drawing up an absenteeism report, which must be signed by at least 3 persons present when it was drawn up. A document drawn up on the fact of a violation may be accompanied by other documents confirming the fact of absenteeism.
• The employee must be required to provide written explanations, which he has the right to give no later than 2 business days after receiving such a request. In this case, he can refuse, then the commission draws up an act of refusal to provide explanations.

Read more about the nuances of drawing up such an act in the material “How to draw up an act of refusal to write an explanatory note?” .

• The head of the employer must, after reviewing the materials on absenteeism, make a decision on penalties no later than 1 month from the date of discovery of the misconduct and before the expiration of 6 months from the date of its commission. These periods will not include some periods during which the employee is absent from work (Article 193 of the Labor Code of the Russian Federation).
• If a decision is made to dismiss for absenteeism, a corresponding order is issued, with which the employee is familiarized with signature. If he refuses to sign, an act to this effect is drawn up.

What options are there for dismissing the head of a legal entity?

The dismissal of the head of a legal entity at the initiative of the employer is provided for in several paragraphs of Art. 81 Labor Code of the Russian Federation:

• When there is a change of owner (clause 4, which also applies to deputies and the chief accountant). Such dismissal does not imply the guilt of these persons, is not mandatory, can be selective and is carried out within the first 3 months after the replacement of the owner (Article 75 of the Labor Code of the Russian Federation). Moreover, it is associated precisely with the transfer of ownership of the property of the entire legal entity to another owner, and not with a change in the composition of shareholders, not with reorganization, not with a change in jurisdiction, and not with a change of owner of one of the divisions.
• As a result of negative consequences that occurred when making an unfounded decision (clause 9). This paragraph also applies to deputy managers and chief accountants, as well as similar persons of branches and representative offices. The determining factor here is the presence of guilt in the damage caused to the employer. Accordingly, it must be proven.
• In case of a one-time gross violation of labor duties (clause 10) by the head of a legal entity or its branch (representative office) or their deputies. Such a violation could be, for example, failure to take measures to ensure occupational safety, resulting in an accident. This basis also requires evidence of the guilt of a certain person.
• As a result of violation of the conditions stipulated by the employment contract (clause 13), for the sole head of the legal entity or persons included in its collegial executive agency. Such a condition could be, for example, a ban on a manager working part-time with another employer, which is permitted by Art. 276 Labor Code of the Russian Federation.

What other cases of dismissal are mentioned in paragraph 14 of Art. 81 of the Labor Code of the Russian Federation (with comments from 2017)?

This paragraph makes reference to other articles of the Labor Code of the Russian Federation and other laws of the Russian Federation. From the articles of the Labor Code of the Russian Federation, this includes dismissal:

• The head of a legal entity by decision of the owner or the relevant authorized body (clause 2 of Article 278). Such a decision may in no way depend on the guilt of the manager.
• A part-time worker, in whose place a full-time employee is hired (Article 288).

Additional grounds for dismissal under Article 81 of the Labor Code of the Russian Federation (with comments from 2017) are provided for in the following laws of the Russian Federation:

• Code of Administrative Offenses (clause 2 of Article 32.11) - disqualification.
• Code of Inland Water Transport (clause 3.1 of article 28 and clause 2 of article 41) - refusal of medical examination.
• Air Code (clause 3.1, article 52) - refusal of a medical examination.
• Merchant Shipping Code (clause 5 of article 57 and clause 5 of article 87) - refusal of medical examination.
• Law “On Municipal Service in the Russian Federation” dated March 2, 2007 No. 25-FZ (clause 1, article 19) - the age limit (subclause 1), termination of citizenship of the Russian Federation (subclause 2), non-compliance with legally established prohibitions and restrictions ( subp. 3), disqualification (subp. 4).
• Law “On General Principles of Organization local government in the Russian Federation" dated October 6, 2003 No. 131-FZ (subparagraphs 1 and 2, paragraph 11, article 37) - engaging in entrepreneurial activity.
• Law “On Foreign Intelligence” dated January 10, 1996 No. 5-FZ (Article 17) - lack of Russian citizenship and the necessary personal qualities.
• Law "On Federal service security" dated 04/03/1995 No. 40-FZ (Article 16) - lack of citizenship of the Russian Federation and the necessary personal qualities.
• Law “On Insolvency (Bankruptcy)” dated October 26, 2002 No. 127-FZ (clause 1 of Article 94 and clause 3 of Article 129) - introduction of external management.
• Law “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” dated November 30, 2011 No. 342-FZ (clause 2 of article 82) - length of service (subclause 4), non-compliance with legally established prohibitions and restrictions ( subparagraph 20), termination of access to information constituting a secret (subparagraph 21).
• Law "On joint stock companies» dated December 26, 1995 No. 208-FZ (clause 4, article 69) - termination of the powers of the head of a joint-stock company by a meeting of shareholders or the board of directors.
• Law “On Emergency Rescue Services and the Status of Rescuers” dated August 22, 1995 No. 151-FZ (Clause 4, Article 9) - an unjustified refusal to participate in the liquidation of the consequences of an emergency situation.
• Law “On amendments to certain legislative acts of the Russian Federation in connection with the improvement legal status state (municipal) institutions" dated 05/08/2010 No. 83-FZ (subparagraph 5, paragraph 27, article 30) - termination of the contract with the head budgetary institution having overdue accounts payable in an amount exceeding the legally established limit.

How can you get fired while on vacation?

Art. 81 of the Labor Code of the Russian Federation contains a direct ban on dismissal during the vacation period. However, there are exceptions to this rule, and they are associated with long vacations, which include parental leave. During this leave, dismissal becomes permissible (Article 261 of the Labor Code of the Russian Federation) if:

• liquidation of the employer (termination of the activities of the individual entrepreneur);
• expiration of a fixed-term employment contract.