Can I be fired under the article. Reasons for being fired legally
Often, labor cooperation ends with dismissal at the initiative of the employer or the employee himself. If the employer decides to fire his subordinate, then he must do it for a reason, but on the basis of one of the articles Labor Code Russian Federation.
What kind of nominal articles can dismiss an employee? What are the stages of dismissal under the article? What should an employee do if they want to fire him under a false article against his will? Read in this article.
Forms of dismissal are regulated by the Labor Code of the Russian Federation. According to him, you can quit according to one of the following schemes:
- . Those. both the employee and the employer agree to the dismissal. The simplest and "painless" procedure for dismissal, accompanied by the preparation of a letter of resignation by agreement.
- Validity employment contract expired. In this case, the dismissal procedure may not start if one of the parties does not express a desire to take into account the timing of the termination of business cooperation and start the dismissal procedure;
- . In this case, the reason can be absolutely any;
In the first three cases, there are usually no serious disagreements between the employee and the employer. However, as for the fourth case, when the employer becomes the initiator of the dismissal, it can cause serious.
As a rule, having decided to get rid of one of his subordinates, the employer initially offers the employee to write an application for (in order not to put a “shameful” mark in work book) and if he expresses his unwillingness, he dismisses him under the article.
Read about the cases in which an employee can be fired under the article in the next section.
Grounds for dismissal under article
According to the current norms of the Labor Code of the Russian Federation, the dismissal of an employee under an article can be carried out in the following cases:
- (according to the article). Example: a young inexperienced employee was taken on a trial period of three months, after which the employer realized that new employee fails to complete the assigned tasks. In this connection, a decision is made to dismiss;
- or bankruptcy of an individual entrepreneur(according to part 1 of the article);
- Reducing the workforce at the IP(according to part 2 of article 8 of the Labor Code of the Russian Federation);
According to the Law, if the dismissal of employees is associated with a reduction in the number of employees or the liquidation of an enterprise, the employer must notify all employees of this at least two months in advance (three, in the case of a massive reduction in the workforce). In addition, the employer must inform all territorial labor exchanges about the upcoming reduction, indicating the details of all the reduced employees (profession, position, level of earnings).
- . Unlike the first paragraph, where we are talking more about an inexperienced specialist, in this paragraph the employee may have great experience, however, from another area or insufficient to fulfill the specific goals set by his head (according to clause 3 of part 1 of article 81 of the Labor Code of the Russian Federation);
In theory, the leaders of organizations should organize regular refresher courses for their employees. However, few employers do this, leaving workers unable to cope with the rapidly changing nature and methods of work. As a result, they are fired, replaced by younger workers with suitable modern style work qualifications.
The employer can dismiss due to insufficient qualifications only if before that the employee was offered another vacancy in the same organization that corresponds to his current qualifications, but he refused to accept it.
- Change of leadership(according to paragraph 4 of part 1 of article 81 of the Labor Code of the Russian Federation);
Dismissal due to a disciplinary violation can be carried out within one month from the moment the misconduct was committed (in some cases no later than one six months).
- Serious one-time violation of their official duties (according to paragraph "a", "b", "c", "d", "e" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation);
According to paragraph "a", dismissal under the article will follow in the event of absenteeism of the employee without indicating a reason for a whole working day (more than four hours).
According to paragraph "b", dismissal under the article will follow if the employee is at least once, under the influence of narcotic or psychotropic drugs.
According to paragraph "c", dismissal under the article will follow if the employee, being a public servant, violates the confidentiality of state secrets or discloses them subordinate employees who do not have access to them.
According to paragraph "e", dismissal under the article will follow if the employee is convicted of stealing someone else's (working) property, damaging it or causing serious defects. This fact was recorded by the court as an administrative offense.
According to paragraph "e", dismissal under the article will follow if the employee violated the safety rules at work, as a result of which this led to an industrial accident and harm to the health of other employees. The reason for dismissal may also be the neglect of safety rules, which did not lead to sad consequences, but potentially could.
- Incompetent attitude to their labor duties related to cash or commodity circulation, in connection with which the employer has lost professional confidence in his subordinate (according to clause 7 of part 1 of article 81 of the Labor Code of the Russian Federation);
- Committing actions that are contrary to moral standards, if labor activity the employee is related to education (according to clause 8 of part 1 of article 81 of the Labor Code of the Russian Federation);
Example: a citizen working as a teacher allowed himself insulting (obscene expressions) against students.
- Decisions resulting in damage to the property of the enterprise(according to clause 9 of part 1 of article 81 of the Labor Code of the Russian Federation);
- Falsification of documents when hiring(forgery of seniority, someone else's passport, false educational "crusts", etc.), (according to clause 11 of part 1 of article 81 of the Labor Code of the Russian Federation);
Who can't be fired?
According to part 3 of article 81 of the Labor Code of the Russian Federation, it is impossible to dismiss the following categories of employees under one of the articles listed in the previous sections:
- Employees on sick leave due to illness;
- employees who are on vacation;
- female workers during pregnancy;
The dismissal of the above categories of employees is allowed in the event of liquidation of the company. In this case, the dismissed employee receives material compensation equal to at least one monthly salary.
What to do in case of wrongful dismissal under the article?
In the event of dismissal for a reason not prescribed in the Labor Code or one that the employee did not commit, either the district court follows with the appropriate one.
Read more about ways to deal with illegal dismissal.
In this case, it is thirty days from the day when the employer announced his intention to dismiss the employee under one of the articles of the Labor Code.
After the court makes a decision, the employee may expect one of the following outcomes of events:
- Payment of material compensation for causing moral and material damage;
The general procedure for processing the termination of an employment contract is regulated. This article describes the algorithm of actions that must be followed.
The termination of the employment contract is formalized by the order (instruction) of the employer. Commonly used unified form which is approved.
The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.
According to the general rules, the day of termination of the employment contract is always the last day of the employee's work, except in cases where the employee did not actually work, but the place of work was retained for him.
On the day of termination of the employment contract, the employer must:
- issue a work book to the employee (if the employee is not at work on the day of dismissal, then a notification is sent to him about the need to pick up the work book or agree to send it by mail);
- make a calculation with him in accordance with;
- at the written request of the employee, issue certified copies of documents related to work.
An entry in the work book on the basis and reason for the termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.
There has long been a dispute among HR professionals as to which wording to use: “employee fired”, “employment contract terminated” or “employment contract terminated”? The Labor Code does not give an unambiguous answer to this question, so employers often choose the wording at their discretion.
Grounds for dismissal of an employee
1. Dismissal during probationary period
The establishment of a probationary period for employment is regulated by Art. 70 TK. It provides a list of employees who are not subject to a probationary period:
- persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing norms labor law;
- pregnant women and women with children under the age of one and a half years;
- persons under the age of 18;
- persons who have received secondary vocational education or higher education according to state-accredited educational programs and for the first time entering work in the received specialty within one year from the date of receipt vocational education appropriate level;
- persons elected to an elective position for paid work;
- persons invited to work in the order of transfer from another employer as agreed between employers;
- persons concluding an employment contract for a period of up to two months;
- to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.
The trial period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions organizations - six months, unless otherwise provided by federal law.
During the probationary period, personnel officers must record any deviations in the work of a new employee using memoranda, acts. When the trial period ends and the employer evaluates the results of the newcomer unsatisfactorily, he must document the validity of his decision.
The employer can terminate the employment contract before the expiration of the test period with an unsatisfactory result, but he will need to notify the employee in writing (in the notification format) no later than three days, indicating the reasons that served as the basis for such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.
If the employee refuses to sign the notification, an appropriate act is drawn up, which records the fact that the employee has read the notification and refuses to sign it. Based on the notification, an order T-8 is issued to terminate the employment contract. If the employee refuses to sign the order, then at the bottom of the order the personnel officer makes an inscription by hand that the employee was familiar with the order, but refused to sign, or an appropriate act is drawn up. In any case, it is important to record the fact that the employee is familiar with the order.
Terminate the employment contract own will on the probationary period maybe an employee. To do this, he needs to submit an application, while he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 TC, will be three calendar days. The dismissal itself is made on the basis (termination of the employment contract at the initiative of the employee).
2. Voluntary dismissal
Which article of the TC to focus on:.
The employee has the right to terminate the employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal. By agreement of the parties, this period may be reduced.
In cases where the dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains grounds for when such an option is possible: enrollment in educational institution, retirement, established violation labor law employer, etc. The practice of labor relations shows that there are many more reasons to reduce the notice period. For example, an illness that prevents the continuation of this work, if there is an appropriate medical certificate; moving to another area ().
Scroll good reasons- the grounds for dismissal on the day of filing an application can be fixed in the rules of the internal work schedule organization or collective agreement.
Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be refused to conclude an employment contract. For example, in Art. 64 of the Labor Code states that it is forbidden to refuse to conclude an employment contract for employees invited in writing to work in the order of transfer from another employer.
Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer must:
- issue a work book to the employee;
- issue other documents related to work, at the written request of the employee;
- make a settlement with him.
How to draw up documents?
When an employee has the right to reduce the notice period, he writes the date of dismissal, which is mandatory for the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to a benefit, but asks to be fired earlier. For example, he writes a statement on May 15, and asks to be fired on May 19. In this case, the employer may act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires a two-week notice and asks for a new application.
Based on the order, an entry is made in the work book (this is done on the last day before the issuance of the book, so that the employee immediately signs in the book of accounting for the movement of work books).
3. Dismissal by agreement of the parties
Which article of the TC to focus on:.
The basis for dismissal "by agreement of the parties" was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." No matter how such a basis for dismissal is perceived, it is necessary to proceed first of all from the fact that the word “agreement” itself indicates a peaceful basis for termination of employment relations.
Despite the fact that the agreement is not provided for by the TC, it is very important document, since it specifies the conditions under which the parties terminate labor Relations.
4. Dismissal due to the expiration of the employment contract
Which article of the TC to focus on:.
The grounds on which a fixed-term employment contract is concluded are spelled out in. Most often - for the duration of the performance of the duties of an absent employee, for whom the place of work is retained.
If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a certain date, which is prescribed in the contract itself. Three days before this date, the employer is obliged to notify the employee of the expiration of the period by means of a notice.
Sometimes it is impossible to determine the expiration date of the employment contract in advance, in which case the contract does not indicate the expiration date, but the condition. In this case, it is not necessary to notify the termination of the employment contract, since the very fact that the main employee enters work means the termination of the employment contract of the employee who replaced him.
In Art. 193 TC spelled out how to issue disciplinary action. The algorithm of actions of the employer in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two business days). The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. In the presence or absence of an explanation, the employer makes a decision based on his assessment of the employee's actions.
The terms for applying the penalty must be taken into account - no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction may not be applied later than six months from the day the offense was committed.
A memorandum on the commission of a disciplinary offense is sent to the name of the director (a person who can make decisions on this issue). And the employee is given a notice against signature with the requirement to provide a written explanatory note. If he does not provide it, then an act is drawn up.
If misconduct is proven, disciplinary action will be taken. With “soft” variants of violations, the employee is first reprimanded. At the same time, the order on the application of a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.
7. Dismissal of a long-term absent employee
The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to deal with a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until the fact of violation of labor legislation is established.
The registration of such a situation begins with the preparation of an act for each working day stating that a person is absent from work for an unknown reason (the first act indicates the time of absence “from ... to”, and the rest - “during the entire working day”).
Acts on the absence of an employee should first be drawn up daily, in case of a long absence - as of the day the next time sheet was submitted.
Letters are sent to the employee with a request to give an explanation of the reasons for the absence (must be sent by registered mail with a list of attachments).
If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may recognize the missing employee as missing through the court. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation.
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Today, there are several ways to dismiss an officially employed employee. One of the most unpleasant is dismissal under the article. Most often this happens due to ordinary absenteeism.
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Legal basis
Based on this provision, the employer may terminate the employment contract with his employee unilaterally.
The current edition is federal law dated 06/30/06. But not for every absenteeism, an officially employed worker can be fired.
This requires a combination of a large number of different factors:
- the employee was absent from his place the whole day - even if work time is only a few hours (if the working day is full, then at least 4 hours in a row);
- the employee is absent directly at his workplace, but if such a place is not assigned to the employee and he was somewhere on the territory of the enterprise, absenteeism is not counted;
- the employee is absent for an unexcused reason;
- absence has been proven.
A good cause is understood to be any situation that prevents an employee from arriving at his workplace in time. For example:
- interruptions in public transport;
- summons to a trial;
- disease;
- crash.
It is only important to have the appropriate documentary evidence the presence of insurmountable circumstances.
It could be sick leave or something else. At the same time, if the employee could not warn the management about his absence in advance or on time, this is not a reason for imposing a disciplinary sanction.
To form an appropriate dismissal order for absenteeism, it is necessary to have documentary justification.
All claims that are grounds for dismissal must be in without fail substantiated and proven, fixed. At the same time, the procedure for bringing an employee to disciplinary responsibility must be followed without fail.
The execution of the dismissal order for absenteeism itself has the following features:
- it is not required to issue two documents (on disciplinary action and dismissal) - the order itself is enough;
- to form the document in question, a unified form is used.
At the same time, various memorandums, as well as other documents confirming the fact of absenteeism, are indicated as the basis. If the employment contract with the employee is terminated in this way, then a corresponding entry in the work book is made without fail.
In the event of any dispute between the employee and the employer, it is necessary to focus on the following documents:
- Labor Code of the Russian Federation dated December 30, 2001 (as amended by Law No. 197-FZ);
- Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No.
Consequences
Dismissal for absenteeism entails quite serious consequences. That is why it is worth avoiding this, since subsequently it will be quite difficult to get a job - a corresponding entry is made in the work book: p.p. "a" part 1 of article No. 81 of the Labor Code of the Russian Federation.
Usually, the wording itself is as follows: “The employment contract is terminated due to a gross violation by the employee job duties».
Almost always, the employer closely studies the work book of his potential employee.
And the presence of such a record immediately characterizes a person as unreliable. But this moment is the only unpleasant consequence for those who were fired under the article for absenteeism.
Quite often, a situation occurs when dismissal for absenteeism arises as a result of going on vacation without warning or due to an untimely exit.
But in this case, the employer has the right to threaten with dismissal only if there is no schedule. That is also a serious violation and a fairly serious fine is required for this.
Therefore, in such a situation, most employers try to find a compromise with their employees.
How to avoid being fired for absenteeism
Violation of the Labor Code always threatens with quite serious problems. But there is always various ways get out of a difficult situation if the employer has grounds to dismiss his employee for absenteeism. Moreover, such actions are completely legal.
For example, when an employee is absent from his workplace for more than 4 hours, the employer has every right to initiate a disciplinary procedure.
According to Article No. 193 of the Labor Code of the Russian Federation, the employee is obliged to provide the personnel department with an appropriate justification for his absence from the workplace.
But at the same time, according to the same Labor Code of the Russian Federation, the employee must be given at least 2 working days to form an appropriate explanatory note.
At the same time, it is necessary to put an appropriate mark with your employer - so that later the employee of the personnel department does not have the right to draw up an appropriate act on the failure to submit an explanatory note.
In this way, you can win two whole days. During this time, you must do the following:
- write a statement of your own free will;
- urgently "get sick" and take a sick leave or go to donate blood.
If an employee decides to write a letter of resignation of his own free will, in most cases the organization will not interfere with him.
Since terminating an employment contract in this way is much easier than carrying out the dismissal procedure for absenteeism. Almost always with the leadership you can find some kind of compromise.
The second way is to take a sick leave. Of course, there is no need to fake anything. Since forgery of a sheet confirming incapacity for work provides for serious punishment in accordance with the relevant article of the Criminal Code.
But when visiting a doctor, it is necessary to indicate the date of onset of the disease - he must fill out the form accordingly.
It will be necessary simply to designate it as a day of absenteeism. In this case, the employer will not have the right to dismiss for absenteeism or impose any penalty.
The third way to legally evade liability for absenteeism is blood donation. According to the Labor Code of the Russian Federation, the employee is released from his immediate duties, as well as the next day.
But it should be remembered that the employer must be notified of the fact of use next day for rest due to blood donation.
In this case, it is necessary to focus on the Resolution of the Plenum of the Supreme Court of the Russian Federation No.
When using the latter method, you must do the following (if dismissal is unavoidable):
- write a letter of resignation;
- sick for two weeks.
After that, you can safely pick up the work book - the personnel department is obliged to make a record of the termination of the employment contract at the request of the employee himself.
A two-week period is necessary due to the mandatory prior notice to the employer of dismissal of one's own free will.
In all the cases indicated above, the employer simply does not have the right to dismiss his employee for absenteeism for the following reasons:
Further, you should not appear at work on the day of dismissal of your own free will - you must continue to get sick. When a certain period is up, the employer simply has to send a notification by mail with a request to appear for a work book.
If, for some reason, an employee does not want to attend former place work, you can get this document by mail.
When dismissal is unavoidable, it is best to use one of the above schemes. This will prevent the appearance of a record in the labor of dismissal for absenteeism.
Features of employment after dismissal
At a new place of work, they are always interested in the track record and carefully look through the work book. That is why very often there are problems in the subsequent employment.
In such situations, it is necessary to explain to the new employer the reason for such a record, to find a rational and convenient explanation.
The easiest way to say that they could not find a common language with the former boss, and he, thus, decided to take revenge.
Aida Ibragimova, head of the personnel department of KSK group
These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.
In almost all organizations, there are employees who do not cope well with their duties: they are often late, do not meet the deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss's verbal remarks do not work, it is necessary to apply disciplinary sanctions: a remark, a reprimand, an extreme measure - dismissal.
In Art. 81 of the Labor Code of the Russian Federation indicates the reasons why the contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of their labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).
Next, we will consider in which cases an employee can be dismissed for a systematic violation of labor duties, what conditions are important to take into account and how to competently draw up a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.
Misdemeanors for which you can be fired under the article
Dismissal under the article is possible if the employee performs actions that are prohibited by the employment contract, job description, local normative act, the order of the employer, the norms of labor legislation and other regulatory legal acts containing the provisions of labor law, or vice versa, if the employee does not perform the actions provided for by these documents.
Paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” refers to such violations:
Absence of an employee without good reason at work or workplace;
- Refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure of labor standards, since by virtue of the employment contract the employee is obliged to fulfill a certain labor contract labor function, comply with the internal labor regulations in force in the organization;
- Refusal or evasion without good reason from medical examination of workers of certain professions, as well as refusal of an employee to pass during working hours special education and passing exams in occupational health, safety and operating rules, if this is prerequisite permission to work.This list is given in the resolution of the Plenum of the Armed Forces of the Russian Federation and, of course, is not exhaustive. Such violations include any non-performance or improper performance by an employee without good reason of their labor duties. When dismissed for repeated failure to perform labor duties, the employer must have a clear position and irrefutable evidence of the employee's guilt. The obligation to provide evidence of the legality and validity of the application of a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, is assigned to the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631 / 2015).
Conditions required for dismissal
Prior to the application of a disciplinary sanction in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:
1. The requirements for the employee must be recorded in the documents, and the employee must be familiarized with them against signature
It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, was familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often complaints are received from clients that their employees do not perform their duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation in line with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.
2. The presence of an outstanding disciplinary sanction from the employee
A disciplinary sanction or remark must not be withdrawn ahead of schedule and its validity period must not expire (one year from the date of issuance of the order to apply the sanction). A disciplinary sanction can be issued as a remark or as a reprimand. For dismissal, one outstanding disciplinary sanction is sufficient, for the second one can already be dismissed. If an employee has several disciplinary actions, then this will strengthen the position of the employer, as it indicates that the employee was given a chance to correct. In this case, dismissal is an extreme measure, because previous disciplinary sanctions on the employee did not work.
3. The severity of the misconduct and the circumstances of its commission
In accordance with clause 53 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, in the event of a dispute, the employer will need to provide evidence indicating that:
- the employee has committed a disciplinary offense;
- when imposing a penalty, the severity of this misconduct and the circumstances under which it was committed (part 5 of article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee, his attitude to work, were taken into account.
This means that the offense must be proportionate to the punishment. It is impossible to apply a disciplinary sanction in the form of dismissal for an employee being late for 15 minutes if there were no complaints about the work of the employee earlier. It is also forbidden to apply several disciplinary sanctions for the same act. For example, it is impossible to reprimand an employee for one delay and fire him for the same. The behavior of the employer will be unlawful if he “accumulates” the employee’s lateness and on the same day announces a reprimand and dismisses the employee.
4. Terms of application of a disciplinary sanction
A disciplinary sanction may be applied within one month from the day the misconduct was discovered and six months from the day it was committed (according to the results of an audit of financial and economic activities or an audit - no later than two years from the date the disciplinary misconduct was committed). The date of discovery of the misdemeanor is the day when it became known that the misconduct was committed.
Please note that the monthly period for the application of a disciplinary sanction does not include the time the employee is sick, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation).
The procedure for imposing a disciplinary sanction
Dismissal for repeated non-fulfillment of labor duties requires strict adherence to the procedure. Consider what documents need to be issued:
1. Memorandum on non-fulfillment of labor duties
The misconduct of the employee must be recorded by the immediate supervisor in a memorandum addressed to CEO. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for the application of a disciplinary sanction.
2. The act of committing a disciplinary offense
The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a specialist in the personnel department. The employee must be familiarized with the act against signature.
3. Notification of the provision of written explanations
Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations were requested, such a notice must be drawn up in writing and handed over to the employee against signature. In case of refusal to receive a notification, it must be read aloud to the employee and an act of refusal to receive the notification should be drawn up.
If, after two working days from the date of requesting an explanation from the employee, he did not provide it or refused, then an act is drawn up. If there is an act and a document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.
4. Consideration of the opinion of the representative body
Dismissal of workers who are members of the trade union, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.
5. Registration of termination of the employment contract
Upon termination of the employment contract with the employee under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation should be guided general rules layoffs. It is necessary to draw up the following documents: an order to terminate the employment contract, a note-calculation, a work book, an employee's personal card.
Case Study
A client approached us for a personnel audit. As part of the audit service, we also advise clients on all issues related to the application of labor law. One of the employees of the company was a single mother and "actively" used it. When checking the employee's personal file, we found a large number of memorandums of non-fulfillment of her labor duties. Previously, the client tried to lay off the worker, but in response she filed a complaint with labor inspection and went to court (although the employment contract was not terminated). The position of the employer was losing, since it is impossible by law to dismiss a single mother, and the procedure itself was framed incorrectly.
We advised the client to issue an order to suspend the dismissal of the employee, as well as to notify that her position will be retained. Despite this, the issue of dismissal remained relevant for the client, the employee increasingly began to violate labor discipline, and in response to the employer's comments, she used the argument that she was a single mother. The woman held the position of a sales manager, systematically left the workplace ahead of schedule, and went on vacation without warning.
Conducting a personnel audit showed that the client's company had serious violations of personnel records and many mandatory documents were missing, as a result of which it was impossible to file a claim against the employee.
We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to a problem employee:
Draw up a detailed job description for the sales manager, which should describe all the duties and indicate to whom the manager reports;
- install in job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales targets to be met by all sales managers.Only upon approval and familiarization of the employee with all the specified personnel documents possible disciplinary action. For example, for non-fulfillment of the sales plan, orders of the manager, violation of labor discipline - announcement of a remark or reprimand, and in case of repeated violation - dismissal of the employee.
As a result, two disciplinary sanctions were drawn up for the employee when she committed the third misconduct - the dismissal procedure under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. The employee asked to be given the opportunity to quit of her own free will, as she did not want such an entry in the work book. The employer went to meet her, and the employment contract was terminated.