Terminated at the initiative of the employer. Termination of an employment contract: we act according to the letter of the law

New edition Art. 81 of the Labor Code of the Russian Federation

The employment contract may be terminated by the employer in the following cases:

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

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

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

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

5) repeated non-performance by an employee without good reasons labor duties, if he has a disciplinary sanction;

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

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

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

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

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

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

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

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash Money and valuables in foreign banks located outside the territory Russian Federation, possession and (or) use of foreign financial instruments an employee, his spouse (wife) and minor children in the 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 term "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 of Certain Categories of Persons from Opening and Maintaining Accounts (Deposits), Keeping Cash and Valuables in Foreign Banks Located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments";

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

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

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

11) submission by the employee to the employer of false documents at the conclusion employment contract;

12) has become invalid;

13) provided for by 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 attestation (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of workers.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided collective agreement agreements, employment contracts.

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

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense 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 (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.

Information about applying to an employee disciplinary action in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article, are included by the employer in the register of persons dismissed due to loss of confidence, provided for by Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption".

Commentary on Article 81 of the Labor Code of the Russian Federation

The procedure for terminating an employment contract at the initiative of the employer is determined by Article 81 of the Labor Code of the Russian Federation. The fundamental difference between this article and the one discussed above is that in all the cases listed below, the early termination of the employment contract is carried out at the initiative of the employer, although the motives for the latter's actions can be very different.

Meanwhile, as practice shows, the grounds for early termination of most employment contracts are precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.

We emphasize that the dismissal of an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation is not allowed. The main situations related to the dismissal of an employee at the initiative of the employer are discussed below.

with the liquidation of the enterprise (termination of activities

employer - individual)

Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by an employer - an individual entrepreneur) (clause 1 of part one of article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is carried out in relation to all employees.

This, in principle, distinguishes the named ground from the others provided for in Article 81 of the Labor Code of the Russian Federation. Let us clarify that in the general case, the liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without transfer of powers (rights and obligations of the enterprise) in the order of succession to any other persons, undertaken in the manner prescribed by law , by decision of the body authorized to do so in accordance with founding documents or by a court order.

The liquidation of the enterprise is considered completed, and the enterprise ceased to exist from the moment the state registration authority makes the corresponding entry in the Unified State Register legal entities.

It should be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for good reasons (due to illness, on vacation, etc.), and on the other hand, provides for the provision of appropriate guarantees and compensations to the dismissed.

The basis for initiating the procedure for dismissing employees on the grounds provided for in paragraph 1 of part one of Article 81 of the Labor Code of Russia is the decision to liquidate the enterprise, taken in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (the body of the enterprise with appropriate powers), or by the court.

Employees must be warned by the employer about the upcoming liquidation in strict accordance with the instructions. Such a warning should:

be personal;

be brought to the attention of each employee in writing and against signature no later than 2 months before the expected date of dismissal.

At the same time - with the written consent of the employee - it is allowed to dismiss him before the expiration of the specified period with the simultaneous payment of additional compensation to him in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. However, employees should be aware that they have the right to apply to the employer with relevant statements.

Obviously, the employer should inform employees about this in advance.

Thus, the employer has the right to dismiss earlier other employees who have declared in writing their consent to the unannounced dismissal procedure. However, it should be borne in mind that before the issuance of the relevant order, an employee who previously agreed with the unannounced dismissal procedure has the right to withdraw his application by notifying the employer in writing.

Employees who have not submitted the relevant written applications should be warned by the employer about the upcoming dismissal in connection with the liquidation of the enterprise. If the employee refuses to paint (from receiving a notification), an act is drawn up about this.

It should be clarified that for certain categories of employees, the notice period for the upcoming dismissal due to the liquidation of the enterprise may be reduced. For example, in accordance with such a warning should be sent to an employee who has entered into an employment contract for up to two months, no later than three days before the expected date of dismissal, and in relation to seasonal work nicks, this period, according to, should be at least seven days. The dismissal of an employee in connection with the liquidation of the enterprise, as in the previously considered cases, is formalized by an order (instruction) to terminate the employment contract, the contents of which are announced to the dismissed person against signature. Based on the order (instruction), other necessary documents are drawn up.

Upon termination of employment contracts in connection with the liquidation of the enterprise to dismissed employees. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

At the same time, employees who have concluded an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract concluded earlier with this employee. Seasonal workers such allowance is paid in the amount of two weeks of average earnings.

Summing up the paragraph, we note that upon termination of the activities of a branch, representative office (another separate structural unit) of an enterprise located in another locality, the head organizes the termination of employment contracts with employees of the relevant structural divisions according to the rules provided for in cases of liquidation of the enterprise. Relevant orders are also issued on the dismissal of these workers.

Early termination of the employment contract due to

with a reduction in the number (staff) of employees of the enterprise

(individual entrepreneur)

Let us turn further to the consideration of the procedure for early termination of an employment contract in connection with a reduction in the number (staff) of employees of an enterprise (individual entrepreneur) (clause 2 of part one of article 81 of the Labor Code of the Russian Federation). In this case, the dismissal procedure is initiated by the employer in relation to employees "subject" to the reduction.

Let us clarify that the dismissal of an employee to reduce the number implies a decrease in the number of units in the relevant specialty (position, profession), for example, due to a decrease in the volume of work performed and the fund wages. When reducing the number, first the vacant units in this specialty are reduced, and then, if necessary, the occupied "live" workers. In turn, the dismissal of an employee to reduce staff involves the liquidation of his position. It is significant that the total number of employees in this case may not decrease, since new units can be simultaneously introduced into the staffing table.

In general, the right to determine the number and staff is granted to the employer. To this end, from time to time, he may take certain organizational measures aimed at changing (including reducing) the number or staff of employees.

Depending on the reasons and goals, the reduction in the number or staff of the enterprise may be more or less significant. The decision to reduce the number or staff (to carry out relevant measures) comes into force from the moment the head of the enterprise issues an order to put into effect a new staffing(with the obligatory indication of the date of its entry into force).

However, before issuing the relevant order, the employer must organize work aimed at ensuring the legality of changes due to a reduction in the number or staff of the enterprise.

It must be emphasized that the dismissal of an employee to reduce the number or staff is considered as properly justified if the enterprise, for one reason or another, really needs to reduce one or another number of units in the corresponding position (specialty, profession). At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the basis under consideration, the employee must be offered in writing another job available to the employer, which the employee can perform taking into account the state of health and qualifications.

Let us clarify that among the circumstances that make it possible, in principle, from a legal point of view, to dismiss an employee in connection with a reduction in the number or staff of an enterprise, include the following:

1. The absence of the employee's preferential rights to ensure that, in the conditions of reduction, he was retained workplace(position).

2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the written consent of the latter to the transfer).

3. The refusal of the employee to give written consent to the transfer to another job offered to him by the employer (taking into account the state of health and qualifications of the employee).

4. Warning the employee about the upcoming dismissal in the manner prescribed by law.

If the employee is a member trade union organization enterprise, then the decision to dismiss the employee on the grounds provided for in paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer, taking into account the reasoned opinion of the relevant trade union body according to (see below). Such an opinion may be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee.

When deciding on the dismissal of an employee, the employer must, in addition, be guided by that establishes preferential rights for certain categories of employees to leave them at work with a reduction in the number or staff.

As follows from this article, with a reduction in the number or staff preemptive right for retention at work is granted to "employees with higher labor productivity and qualifications". With documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to a reduction in the number or staff, the priority right to continue working is enjoyed by:

family workers - if their families have two or more disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood;

family workers who do not have other self-employed workers in their families;

employees who received a labor injury (occupational disease) during the period of work with this employer;

workers - invalids of the Great Patriotic War(combat actions to defend the Fatherland);

employees who improve their skills in the direction determined by the employer, without interruption from work;

employees who are spouses of military personnel (in government organizations, military units);

employees from among citizens previously dismissed from military service, as well as members of their families at work, where they entered for the first time after dismissal from military service;

workers - single mothers of military personnel who are conscripted for military service;

workers from among persons who have received or suffered radiation sickness and other diseases associated with radiation exposure (exposed to radiation exposure).

We also note that the collective agreement (agreement) may also determine other categories of workers who, in the event of a reduction in the number or staff, have the preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The employer's next steps are:

1. Determination (taking into account the foregoing) of employees to be transferred to vacant positions (with their consent and if there are vacancies at the enterprise corresponding to their state of health and skill level).

2. Bringing to the attention of the specified employees of the lists vacancies(in person, in writing, against signature and taking into account the date of the expected dismissal of an employee in case of disagreement with the transfer).

3. Consideration of written statements of employees on consent (disagreement) with the transfer to other positions.

The new owner may (but is not obliged to) offer employees who are subject to dismissal on the basis in question, another job available at the enterprise. Whether or not to agree with this proposal is up to the employee, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues an appropriate order (instruction) on the dismissal of an employee. On the basis of the order (instruction) on dismissal, other necessary documents are drawn up.

In conclusion, we note that the employee, on his own initiative, can apply to the new owner of the property with a request for early termination of the employment contract. In this case, with the consent of the employer, the employment contract with the employee is also subject to early termination on the grounds provided for.

The same right, however, can be used by other employees of the enterprise, and not just those listed in paragraph 4 of the first part of Art. 81 of the Labor Code of Russia. However, we emphasize again that the latter situation is fundamentally different from that described in this paragraph, since the initiative for early termination of the employment contract on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation belongs to the employee, not the employer.

Early termination of the employment contract due to

with repeated non-performance by the employee without

good reasons for work duties

Now let's dwell on the early termination of the employment contract due to the employee's repeated non-fulfillment of labor duties without good reason (clause 5 of part one of article 81 of the Labor Code of the Russian Federation), which - we emphasize this especially - is allowed only if this employee has a disciplinary sanction . In practice, the above means that an employee who is first noticed in non-fulfillment of labor duties without valid reasons cannot be immediately dismissed by the employer, except in cases where such non-fulfillment is associated with a gross violation by this employee of his labor duties.

It goes without saying that the relevant circumstances that are significant for ensuring the legality of the early termination of an employment contract on the grounds provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation must be documented. Relevant documents may include:

a duly executed act on a previous case of non-fulfillment of labor duties by an employee without good reason (preferably with a note that the employee has familiarized himself with the contents of this document);

duly executed order (instruction) on disciplinary punishment an employee with a mark on the employee's familiarization with its content;

documents confirming that labor duties were not fulfilled by this employee in the absence of good reasons;

other documents directly related to the circumstances under consideration (confirming that these circumstances took place).

It must be recalled that, in accordance with the dismissal of an employee on the prescribed grounds, in turn, is also a disciplinary sanction. The general procedure for the application of disciplinary sanctions is defined.

When dismissing an employee - a member of a trade union organization of an enterprise on the grounds provided for in clause 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues an appropriate order (instruction), on the basis of which other necessary documents are drawn up.

Early termination of the employment contract due to

with a single gross violation by an employee

job duties

It seems appropriate to devote the next paragraph of the handbook to considering the procedure for early termination of an employment contract in connection with a single gross violation by an employee of labor duties (clause 6 of part one of article 81 of the Labor Code of the Russian Federation). Note that this paragraph provides for several grounds for the dismissal of an employee guilty of a gross violation of labor duties, namely:

absenteeism, i.e. the absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its (its) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a "point 6);

the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6);

disclosure by an employee of secrets protected by law (including state, commercial, official and other), which became known to him in connection with the performance of his labor duties, including disclosure of personal data of another employee (subparagraph "c" of paragraph 6);

the commission by an employee at the place of work of theft (including small) of another's property, its embezzlement or deliberate destruction (damage), established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph "d "point 6);

established by the commission (authorized) for labor protection violation by the employee of labor protection requirements, if the violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of their occurrence (subparagraph "e" of paragraph 6).

The employer has the right to initiate the procedure for early termination of the employment contract in relation to one or another employee on the basis of documents proving the latter's guilt in committing actions (occurrence of circumstances) and, thus, making it possible to dismiss the guilty person on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation . Such documents may include, for example, the following:

an act confirming the absence of an employee from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day;

a medical report on the results of the examination of an employee who appeared at work in a state of alcoholic (narcotic or other toxic) intoxication;

conclusions based on the results of the investigation (in necessary cases - with the application of the materials of the investigation) of the fact that the employee disclosed secrets protected by law (including state, commercial, official and other), which became known to him in connection with the performance of labor duties;

a court verdict (decree of the body authorized to apply administrative penalties), which has entered into force and confirms the fact that the employee at the place of work has committed theft (including small) property of others, its embezzlement or deliberate destruction (damage);

conclusions based on the results of the investigation (in necessary cases - with the application of the materials of the investigation) of the fact that the employee violated labor protection requirements, which entailed grave consequences or knowingly created a real threat of such consequences.

All of the above documents must be properly completed. In addition, it is necessary to draw the attention of dear readers to the fact that, as in the case considered in the framework of the previous paragraph, dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when implementing the procedure early termination of the employment contract, the employer is obliged to adhere to the procedure for applying a disciplinary sanction, determined by Article 193 of the Labor Code of the Russian Federation.

So, despite the fact that subparagraph "a" of paragraph 6 clearly defines what should be considered absenteeism, when making a final decision to dismiss an employee on an appropriate basis, the employer should first pay attention to some other circumstances. For example, a suspension of work due to a delay in the payment of wages to him for more than 15 days cannot be qualified as absenteeism, provided that the employee informed the employer in writing in advance of his intention (see in this regard). The employee has the right to refuse to perform work (labor function) that is not stipulated by the employment contract concluded with him, and, therefore, may be absent from the workplace for this reason. legal grounds(see in this connection).

On the other hand, the employer has the right to consider as absenteeism the employee leaving work (and, accordingly, the workplace), undertaken by the latter without a written warning from the employer of the intention to terminate the employment contract on his own initiative at least two weeks in advance.

The fact that an employee appeared at work in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6) can be confirmed not only by a medical report, but also by a properly executed act. , i.e. do not allow him to the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).

In the event that the employee was not suspended from work, the responsibility for the possible consequences of the performance of work duties by him in a state of intoxication lies with the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this disappear. However, this does not deprive the employer of the right to dismiss the employee for gross violation labor discipline. If, despite the testimony given in relation to the employee by other persons, the subsequent medical report does not confirm the fact of his intoxication, then the employer has no right to continue to refuse the employee admission to the workplace to perform the work entrusted to him in accordance with the employment contract (labor function). ).

The dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph "c" of paragraph 6) is allowed if the following circumstances occur:

1. An employment contract (either an appropriate agreement to it, or an additional contract in relation to the employment contract, for example, provided for by the Instruction on the procedure for admitting officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation of October 28, 1995 N 1050) contains the condition about the inadmissibility of disclosure by the employee of information constituting a secret protected by law.

2. The relevant information was indeed entrusted to the employee in order to properly perform the work (labor function) entrusted to him, while the employee was aware that the specified information constitutes a legally protected secret.

3. The fact that an employee disclosed relevant information, such as personal data of another employee, is documented.

The most indisputable from a legal point of view (among the grounds provided for in the subparagraphs of paragraph 6) is the early termination of an employment contract with an employee found guilty of committing at the place of work theft (including small) property of others, its embezzlement or deliberate destruction (damage) established by a court verdict that has entered into legal force or a decision of a judge, body or official authorized to apply administrative penalties (subparagraph "d" of paragraph 6). In this case, the employer is guided by documents issued in the prescribed manner by authorized bodies.

It should be emphasized that in this case the Labor Code makes no distinction as to whether the stolen (damaged, destroyed or wasted) property belonged to the employer or another person (for example, another employee of the enterprise). The main thing is that the relevant action be committed by the guilty person at the place of work (which, of course, should be understood not as a workplace, but as an enterprise where the employee works).

It is also necessary to draw the attention of respected readers to the legal subtlety regarding the choice of grounds for the dismissal of an employee. A person guilty of committing unlawful acts in relation to someone else's property at the place of work is subject to dismissal on the grounds provided for in subparagraph "d" of paragraph 6, only if the court verdict that has entered into force indicates that the employee has been sentenced to punishment that does not exclude the possibility of continuing employee of the work assigned to him in accordance with the employment contract. This circumstance must be taken into account when issuing a dismissal order and, in particular, when making appropriate entries in the work book.

And finally, on the early termination of the employment contract on the grounds provided for in subparagraph "e" of paragraph 6. Dismissal on ground an employee who violated labor protection requirements, which had grave consequences or knowingly created a threat of such consequences, is allowed if:

1. The employee was in due course.

2. The employer has provided the employee with labor safety and conditions that meet the requirements of labor protection and hygiene.

3. Violation by the employee of these requirements really entailed grave consequences or created a real threat to their occurrence.

4. The circumstances listed above are documented: a properly executed report on an accident at work, an expert opinion issued by an authorized body, a decision of a state inspector for labor protection, etc.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract due to

with the commission of guilty actions by the employee, directly

serving monetary or commodity values

In accordance with paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract ahead of schedule in connection with the commission of guilty actions by an employee directly servicing monetary or commodity values, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. In general, the dismissal of an employee on the specified grounds is allowed provided that:

the employee, in accordance with the employment contract concluded with him, was entrusted with the performance of work (labor function), which provides for the direct servicing of monetary (commodity) values, and he actually performed the relevant work, which is documented;

the fact of committing guilty acts by the employee is appropriately recorded in the documents;

the commission of guilty acts gives the employer grounds for the loss of confidence in this employee.

We emphasize again that the documents appearing as evidence of the employee's guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving grounds for the loss of confidence in relation to an employee (taking into account the above), is actually more extensive than it can be. seem respected readers at first glance. Thus, the law enforcement practice of recent years indicates that as such circumstances, employers may take into account:

circumstances that in themselves indicate the illegal nature of the employee’s actions, namely: receipt of payment for goods (services) sold without relevant documents, underfilling, measurement, underweight, shortfall, violation of the rules for the sale of alcoholic beverages and cigarettes, violation of the rules for issuing narcotic drugs and etc.;

circumstances indicating the employee’s negligent attitude to his labor duties, which, in turn, gives the employee grounds for the loss of confidence, including: acceptance and issuance sums of money without proper registration, storage of keys to premises with material (monetary) valuables in the wrong place, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in an improper condition, making them possible to steal (loss), etc.;

circumstances indicating the use by the employee of the property entrusted to him for direct maintenance for personal purposes.

It should also be emphasized that in accordance with the provision of the Labor Code under consideration, no distinction is made as to whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. - the basis for early termination The employment contract consists in the very fact of committing guilty acts by one or another employee and its corresponding (documentary) confirmation. It is also immaterial whether an agreement on full liability or not. Finally, it does not matter whether the work involving the direct maintenance of material (monetary) values by the guilty worker was the main one or whether the latter performed it part-time.

On the other hand, the dismissal of certain categories of workers on the grounds provided for in paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation cannot be implemented due to the fact that they cannot be entrusted (entrusted) with the performance of the relevant types of work.

Summing up, we note that in order to make a decision on the dismissal of the guilty employee in connection with the loss of confidence in the employer, as a rule, the documents listed above are sufficient, i.e. such a decision may also be made in the absence of a court verdict that has entered into legal force, as provided for by subparagraph "d" of paragraph 6 (see earlier). However, in the event that the fact that an employee has committed guilty acts (theft, bribery, other mercenary offenses) is established in the manner prescribed by law, the perpetrator may be dismissed due to loss of confidence and if the commission of such actions is not related to the performance of maintenance work. material (monetary) values.

If the guilty actions that give rise to the loss of confidence 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, then dismissal on the grounds provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is allowed in within one year, calculated from the date when the employer became aware of the employee's misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).

Early termination of the employment contract due to

committed by an employee performing educational

functions, immoral offense

Early termination of an employment contract in connection with the commission by an employee performing educational functions of an immoral offense (clause 8 of the first part of article 81 of the Labor Code of the Russian Federation) is carried out if such an act is incompatible with the continuation of this work. It is noteworthy that this provision of the Labor Code does not specify under what circumstances - related or not related to the performance of the assigned work (labor function) - a misconduct was committed by one or another employee.

At the same time, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work ( labor function), not related to the upbringing of the wards. Accordingly, early termination of employment contracts with employees from the administration of institutions (institutions), as well as with technical (servicing) personnel in connection with the commission of immoral misconduct by them is not allowed.

The fact that an employee has committed an immoral offense must be documented, for example, by the materials of an official investigation. Conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the commission of an immoral act by the employee with the continuation of his previous work.

This takes into account the circumstances of the commission of an immoral offense, the degree of its severity, as well as whether such offenses were previously committed by this employee. As a rule, when an employer makes a decision to dismiss, it also takes into account from which side the employee has proven himself in the eyes of colleagues and wards.

If an immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then dismissal on the grounds provided for in clause 8 of part one of Art. 81 of the Labor Code, is allowed within one year, calculated from the date when the employer became aware of the employee's misconduct.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract due to

with the adoption by the employee of an unreasonable decision, which entailed

for a violation of the safety of property, unlawful

its use or other damage to the property of the enterprise

Let us turn further to the consideration of the procedure for early termination of the employment contract in connection with the adoption by the employee - the head of the enterprise (branch, representative office), his deputies and the chief accountant - an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the enterprise (p. 9 parts of the first article 81 of the Labor Code of the Russian Federation). As the name implies, dismissal on this basis applies only to strictly defined categories of employees of the enterprise. To ensure the legality of dismissal on this basis, the following is essential:

2. The decision taken by the employee and considered by the employer as a circumstance that makes it possible to dismiss the employee on the grounds provided for in clause 9 of the first part of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable.

3. The result of the employee's unjustified decision was a violation of the safety of the property of the enterprise, its illegal use or other damage caused to the property of the enterprise.

4. The circumstances listed above are documented.

We add that between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests), a causal relationship should be clearly visible. In other words, the employee must be responsible for the decision made by him personally.

As law enforcement practice shows, it is most difficult to establish such a connection in relation to decisions that are not recorded in any management documents, i.e. announced orally. In such cases, the circumstances of the decision and its implementation require particularly careful study.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract due to

with a single gross violation by an employee - manager

enterprise (branch, representative office) (by his deputy)

their job responsibilities

Let's move on to considering the procedure for early termination of an employment contract in connection with a single gross violation by an employee - the head of an enterprise (branch, representative office) (his deputy) of his labor duties (clause 10 of part one of article 81 of the Labor Code of the Russian Federation). As you can see, the application of this ground for dismissal is even more "selective" than that considered in the previous paragraph, since it does not apply to employees holding the position of chief accountant.

The content of the paragraph under consideration does not define what exactly should be considered as a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list, for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice. Let us clarify that among the gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies and giving the employer grounds for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation, is currently accepted include, in particular, the following: violation of labor protection rules, violation of the rules for accounting for values, excess of official authority or use of the latter for personal (mercenary) purposes, etc.

Dismissal on the grounds provided for in paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation will, of course, be legal if:

1. An employment contract concluded with an employee contains a condition on the obligation of the latter to perform certain actions in accordance with the powers granted (or, on the contrary, a condition requiring the employee to refrain from performing certain actions).

2. The commission by the employee of the relevant violation actually took place, and this fact is documented in the proper form.

Dismissal on this basis will also be legal if the employment contract concluded with the employee specifically states that the commission of such and such actions (refraining from committing them) qualifies as a gross violation and entails the dismissal of the violator on the grounds provided for in paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion in the employment contract of the relevant condition should not contradict other provisions of the Labor Code, which provide for the possibility of early termination of the employment contract with the employee - the head of the enterprise (branch, representative office) (his deputy) on other grounds.

It is necessary to draw the attention of dear readers to the fact that the basis we are considering gives the employer the right, on its own initiative, to terminate the employment contract ahead of schedule with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer himself decides whether to dismiss the violator or wait until another suitable opportunity presents itself for this.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract due to

presented by the employee to the employer

false documents when concluding an employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission by an employee to the employer of false documents when concluding an employment contract (clause 11 of part one of article 81 of the Labor Code of the Russian Federation). It should be immediately clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract, and, consequently, the employer's attempt to accuse the employee of submitting false documents, which the employer had no right to insist on, will look untenable from a legal point of view.

Thus, in the event that the employee presented the employer with a false (relatively speaking, someone else's or fake) employment history or a false passport and this fact is properly documented, for example, by an act on the verification of a doubtful document, then the employer has the right to terminate the employment contract with the specified employee ahead of schedule on the grounds provided for in clause 11 of the first part of Article 81 of the Labor Code of the Russian Federation.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract on the grounds,

stipulated by the employment contract with

employee - manager (members of the collegial

executive body) of the enterprise

It seems appropriate to devote the next paragraph to the consideration of the procedure for early termination of an employment contract on the grounds provided for by an employment contract with an employee - the head (members of the collegial executive body) of the enterprise (clause 13 of the first part of Article 81 of the Labor Code of the Russian Federation). Thus, the peculiarity of this paragraph lies, firstly, in the fact that it can only be used to dismiss employees from among the managers (members of the collegial executive body) of the enterprise and, secondly, only on the grounds provided for by employment contracts concluded with these employees in addition to the general grounds for dismissal.

It should be noted that additional grounds for dismissal are established at the conclusion of an employment contract by agreement between the employee - manager (member of the collegial executive body) and the employer. At the same time, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of workers.

The occurrence of circumstances that make the early termination of the employment contract with the employee - the head (member of the collegial executive body) of the enterprise legal, must be documented. At the same time, the forms and methods of their documentary confirmation may be different (see earlier).

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract in other cases,

established by law

Let us briefly dwell on the consideration of the procedure for early termination of an employment contract in other cases established by law (clause 14 of the first part of article 81 of the Labor Code of the Russian Federation). Earlier, we have already touched on certain issues related to the dismissal of employees of the enterprise on other grounds provided for Labor Code Russian Federation, other federal laws.

In this case, however, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on his own initiative, terminating the employment contract with him before the expiration of the latter. In other words, these are situations where early dismissal employee at the initiative of the employer and directly provided for by law, with the exception of those discussed earlier.

Thus, Article 33 of the Federal Law of the Russian Federation of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation" gives the employer the right to early terminate an employment contract with an employee - a civil servant on the grounds. Relevant grounds may be provided for by other laws of the Russian Federation in relation to other categories of employees.

Information about additional grounds for dismissal of an employee is recorded in the employment contract. The fact of the occurrence (revealing) of circumstances that allow the dismissal of an employee on one of the additional grounds must be documented.

The employer issues an appropriate order (instruction) on the dismissal of an employee. On the basis of an order (instruction), another is issued

Another commentary on Art. 81 of the Labor Code of the Russian Federation

1. Unlike an employee, an employer is significantly limited by law in his ability to terminate an employment contract with an employee. The legislator seeks to ensure, firstly, the stability of the employment relationship, and secondly, the protection of the interests of the employee.

Termination of an employment contract at the initiative of the employer general rule possible only on grounds exhaustive list which is established by law, and only subject to the established procedure for dismissal. An employee dismissed without a legal basis or in violation of the procedure for dismissal is subject to reinstatement in the previous job.

As grounds for the dismissal of an employee at the initiative of the employer, the legislator formulates three groups of reasons:

a) the guilty actions of the employee;

b) reasons related to the personality of the employee, but not the result of his guilty actions;

c) circumstances that do not depend on the personality of the employee.

When formulating the grounds for termination of an employment contract at the initiative of the employer, the legislator takes into account both the personality of the employee and the characteristics of work due to the labor function. In this regard, there are general and special grounds for termination of an employment contract at the initiative of the employer. The former can be applied upon the dismissal of any employee, the latter - only employees of certain categories (for example, heads of organizations, persons whose labor activity is related to the maintenance of monetary or commodity values). The general grounds for terminating an employment contract at the initiative of the employer are formulated in Art. 81 of the Labor Code, additional (special) - partially in Art. 81, partially - in the articles of the Code regulating the legal status of certain categories of employees and employers, as well as in other federal laws.

The presence of grounds for dismissal as a general rule gives the employer the right, but does not oblige him to terminate the employment contract. Therefore, when circumstances arise that give rise to this right of the employer, the latter may either not change the content of the employment contract with the employee at all, limiting himself to applying measures of an organizational and legal nature to him, or, if the specified circumstance excludes the possibility of the employee retaining his position or work stipulated by the employment contract - transfer the employee with his consent to another job. In some cases, the employer has the right to dismiss the employee if transfer to another job is impossible or the employee refuses to transfer (see paragraph 17 of the commentary to this article).

2. Paragraph 1 of Art. 81 of the Labor Code of the Russian Federation provides for such a basis for the dismissal of an employee as the liquidation of an organization or the termination of activities by an individual entrepreneur.

The liquidation of an organization (legal entity) is carried out on the grounds and in the manner determined by civil law. The liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons (clause 1, article 61 of the Civil Code of the Russian Federation).

As follows from paragraph 2 of Art. 61 of the Civil Code, a legal entity can be liquidated by decision of both the person himself (its founders (participants) or the competent authority), and the court, including in the event of declaring him bankrupt. Labor legislation interprets the dismissal of employees arising from the fact of liquidation of a legal entity as the termination of an employment contract with them solely at the initiative of the employer. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after an entry about this is made in the Unified State Register of Legal Entities (clause 8, article 63 of the Civil Code of the Russian Federation).

As for the termination of the activities of the employer - an individual, in this case we are talking about the termination of the activities of this person as an individual entrepreneur - in the sense that the concept of the latter is interpreted by the Code (see to it). The death of an employer - an individual is an independent basis for the termination of an employment contract (see to it).

Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code of the Russian Federation are special subjects of law acting to achieve goals determined by law, including the production of profits, and, accordingly, are obliged to carry out state registration (licensing) of their activities in one form or another. So, the entrepreneurial activity of a citizen as an individual entrepreneur or head of a farm is subject to state registration (Article 23 of the Civil Code of the Russian Federation). A special procedure is provided for by the legislation for acquiring the status of a lawyer (see Federal Law of May 31, 2002 N 63-FZ "On Advocacy and the Bar in the Russian Federation"). On the basis of a license issued in accordance with the established procedure, the activities of notaries are carried out (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries). Accordingly, the termination (or suspension) of the activities of such employers can serve as an independent basis for the termination of an employment contract with employees under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation.

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under paragraph 1 of Art. 81 of the Labor Code, in particular, when the activity of the employer - an individual is terminated on the basis of his own decision, as a result of his recognition as insolvent (bankrupt) by a court decision (clause 1 of article 25 of the Civil Code of the Russian Federation), due to the expiration of the certificate of state registration, refusal to renew a license for certain types of activities (part 3, clause 28 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 N 2).

3. Reducing the number or staff of employees of an organization, an individual entrepreneur as a basis for terminating an employment contract is provided for in paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

The number of employees is determined in accordance with the technological processes used by the employer and the needs of technical maintenance of his activities.

The staff is a combination of managerial and administrative positions at various levels, as well as specialists. The staff is determined, as a rule, by the head through the publication of the staffing table.

When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership (part 4 of article 75 of the Labor Code of the Russian Federation).

When dismissing due to redundancy, it is necessary to take into account the preemptive right of certain categories of employees to remain at work (see Article 179 of the Labor Code of the Russian Federation and commentary thereto). At the same time, since by virtue of Part 4 of Art. 81 of the Labor Code of the Russian Federation 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 these structural units is carried out according to the rules provided for in cases of liquidation of the organization, the rule of art. 179 of the Labor Code of the Russian Federation does not apply in this case.

It should be borne in mind that if paragraph 2 of Art. 81 of the Labor Code of the Russian Federation in the previous version spoke about the reduction in the number or staff of employees of the organization, i.e. employer - a legal entity, then at present the effect of this clause also applies to the employer - an individual entrepreneur (in the sense in which Article 20 of the Labor Code of the Russian Federation interprets it).

4. By virtue of paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, the discrepancy between the employee of the position held or the work performed may be the result of insufficient qualifications. On the dismissal of an employee in connection with the refusal to transfer to another job due to a changed state of health, see Art. 73, paragraph 8 of Art. 77 and commentary on them.

The insufficient level of qualification of the employee must be confirmed by the results of certification.

By the time the Labor Code of the Russian Federation came into force, attestation as a form of testing and assessing the level of qualifications of personnel was used in some areas of professional activity (primarily in the field of state and municipal service) and in relation to certain categories of workers (mainly in relation to specialist employees). The procedure for attestation in these cases is determined centrally (see, for example, Decree of the President of the Russian Federation of February 1, 2005 N 110 "On the attestation of state civil servants of the Russian Federation"). At the same time, the possibility of introducing the institution of attestation of employees in individual organizations is not ruled out (part 1, clause 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

In any case, the certification procedure implies compliance with the following rules: a) the presence regulatory framework(provisions on attestation); b) implementation of the certification procedure by a commission established in the manner prescribed by the relevant regulation; c) the universal nature of certification (certification is subject not to individual, but to all (with exceptions determined in the normative manner) employees of a certain category); d) frequency in carrying out certification (employees are subject to certification regularly, as a rule, after a certain period after the previous certification, established in the regulatory order).

Conclusion attestation commission the fact that the employee, in terms of his actual qualifications, does not correspond to the position held or the work performed, gives the employer the right to terminate the employment contract with this employee.

Since, by virtue of the Labor Code of the Russian Federation, the termination of an employment contract due to the employee’s lack of an appropriate level of qualification is allowed provided that the lack of qualifications is confirmed by the results of certification, the dismissal of any employee due to inconsistency with the position held or work performed due to insufficient qualifications (clause 3 of article 81 of the Labor Code RF) is possible subject to preliminary certification and the presence of the conclusion of the certification commission (part 1, clause 31 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). This norm of the Code actually prescribes to each employer to take measures aimed at creating the organizational and legal conditions necessary for the certification of all the personnel of employees employed by him, because otherwise he deprives himself of the opportunity to terminate employment contracts with employees on the specified basis.

Judicial practice proceeds from the inadmissibility of terminating an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to the short length of service, as well as on the grounds of the lack of special education, if it is not legally prerequisite when concluding an employment contract.

5. The basis for dismissal at the initiative of the employer is the employee's repeated failure to fulfill his labor duties without good reason (clause 5, article 81 of the Labor Code of the Russian Federation).

The range of duties of an employee is determined by a number of legal sources. Violation of labor discipline is the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, rules of internal work schedule, job descriptions, regulations, orders of the employer, technical rules etc.).

Such violations include, in particular:

a) the absence of an employee without good reason at work or workplace. At the same time, it must be borne in mind that if the specific workplace of this employee is not stipulated in the employment contract concluded with the employee, or the local regulatory act of the employer (order, schedule, etc.), then in the event of a dispute over the issue of where the employee is obliged to be in the performance of his labor duties, it should be assumed that by virtue of the workplace is the 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;

b) the employee’s refusal, without good reason, to perform labor duties in connection with a change in the established procedure for labor standards (see), since by virtue of the employment contract the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization (see . To her). At the same time, it should be borne in mind that the refusal to continue work in connection with a change in the terms of an employment contract due to a change in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for terminating an employment contract in compliance with the procedure provided for;

c) refusal or evasion without valid reasons from a medical examination of employees of certain professions, as well as the refusal of an employee to pass work time special education and passing exams on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work (see clause 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

As noted in the said Resolution (clause 36), when resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the event when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the fulfillment of duties for the maintenance of material assets is the main labor function of the employee, which is agreed upon when hiring, and in accordance with the current legislation, an agreement on full liability can be concluded with him, which the employee knew about, refusal to conclude such an agreement should be considered as non-fulfillment of labor duties with all the ensuing consequences.

If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that in connection with a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer, by virtue of Part 3 of Art. 74 is obliged to offer him another job, and in the absence of it or the employee's refusal from the proposed job, the employment contract is terminated with him in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

The refusal of an employee (regardless of the reason) to comply with the employer's order to return to work before the end of the vacation cannot be considered a violation of labor discipline (paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).

Dismissal for repeated non-performance by an employee of labor duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated non-performance by the employee without good reason of labor duties was not removed and not repaid (part 1, clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 Mr. N 2). The list of disciplinary sanctions is established by law ().

Within the meaning of the term "repeated" (i.e. more than one) non-fulfillment of labor duties may also occur in the event of repeated non-fulfillment by the employee without good reason of the duties assigned to him. Considering that, by virtue of the law, a disciplinary sanction is valid for one year, i.e. 12 months, if the employer did not remove him from the employee ahead of schedule (see Article 194 of the Labor Code of the Russian Federation and commentary thereto), the employer’s right to terminate the employment contract arises if the employee again violated labor discipline within 12 months after the application of a disciplinary sanction to him . At the same time, recognizing the non-fulfillment of labor duties as repeated, one should take into account not only the repetition of the violation, but the nature and severity of the misconduct itself, the previous behavior of the employee and other circumstances.

If an employee has repeatedly violated labor discipline, but no disciplinary sanction has been applied to him, then he cannot be dismissed under paragraph 5 of Art. 81. Violation of labor discipline is recognized as repeated if, despite the penalty, the unlawful misconduct of the employee continues. In this case, it is allowed to apply a new penalty to him, including dismissal under paragraph 5 of Art. 81 (part 2, clause 33 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

The employer has the right to apply a disciplinary sanction to the employee even when the latter, prior to the commission of the misconduct, filed an application for termination of the employment contract on his own initiative, since the employment agreement in this case is terminated only after the expiration of the notice period for dismissal (part 3, clause 33 of the Resolution of the Plenum of the Supreme Court RF dated March 17, 2004 N 2). At the same time, the filing by an employee of an application for dismissal of his own free will after an act that gives the employer grounds for applying a disciplinary sanction to him, including dismissal, cannot be considered forced (see paragraph 4 of the commentary to Article 80 of the Labor Code of the Russian Federation).

Actions of an employee that are not related to his job duties should not be considered as a disciplinary offense. Therefore, it is impossible to dismiss an employee under paragraph 5 of Art. 81 of the Labor Code, for example, for misbehavior in everyday life. Termination of an employment contract on this basis is specified in the norms of the Labor Code governing the legal status teaching staff(see paragraph 1 of article 336 of the Labor Code of the Russian Federation and commentary to it).

6. A single gross violation by an employee of labor duties (clause 6 of article 81 of the Labor Code of the Russian Federation) is a sufficient basis for terminating an employment contract with an employee, regardless of whether he had previously received disciplinary sanctions. Gross violations are:

1) absenteeism (subparagraph "a", paragraph 6 of article 81 of the Labor Code of the Russian Federation). Absenteeism is understood as absence from the workplace without a good reason throughout the working day (shift). Absence of an employee at the workplace without good reason for more than four hours in a row during a working day (shift) is equated to absenteeism. It should be assumed that the workplace in this case means not only the workplace assigned to the employee, but also the one at which the employee was obliged to be by virtue of the instructions of the relevant supervisor of the employee (on the concept of the workplace, see Article 209 of the Labor Code of the Russian Federation and the commentary To her).

As follows from the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (paragraph 39), dismissal on the indicated grounds, in particular, can be carried out:

a) for absenteeism from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);

b) for finding an employee without good reason for more than four hours in a row during the working day outside the workplace;

c) for leaving work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about the termination of the contract, as well as before the expiration of the two-week warning period (part 1 of article 80 of the Labor Code of the Russian Federation);

d) for leaving work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1 article 292, part 1 article 296 of the Labor Code of the Russian Federation);

e) for unauthorized use of days off (see to it), as well as for unauthorized leave on vacation (see article 123 of the Labor Code of the Russian Federation and commentary to it). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism in the event that the employer, in violation of the obligation stipulated by law, refused to provide them and the time for the employee to use such days did not depend on the discretion of the employer (for example, a refusal to an employee who is a donor to provide in accordance with part 4 of article 186 of the Labor Code of the Russian Federation, a day of rest immediately after each day of donating blood and its components).

When a court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start it, the employer is obliged to provide evidence indicating the legality of the transfer itself (see Articles 72.1 and 72.2 of the Labor Code of the Russian Federation and the commentary to them). If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job (paragraph 40 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the salary of a reinstated employee in such cases may be recovered not from the first day of absence from work, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced (paragraph 41 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 );

2) appearing at work in a state of alcoholic, narcotic or other toxic intoxication (subclause "b", clause 6, article 81 of the Labor Code of the Russian Federation).

By virtue of h. 1 Article. 76 of the Labor Code of the Russian Federation, an employee who appears at work in a state of alcoholic, narcotic or other toxic intoxication is not allowed by the employer to work on that day (shift). However, in accordance with sub. "b" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, employees who were during working hours at the place of performance of work duties in a state of intoxication or in a state of narcotic or toxic intoxication may be dismissed, regardless of suspension from work in connection with the specified state.

Dismissal on this basis may also follow when the employee during working hours was in such a state not at his workplace, but on the territory of the organization or facility in which, on behalf of the administration, he had to perform a labor function (see clause 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2). It also does not matter when the employee was at work in a state of intoxication: at the beginning or at the end of the working day. At the same time, if an employee, while in a state of intoxication on the territory of an organization or other facility, was absent from his workplace for more than four consecutive hours during a working day, the employer has the right to terminate the employment contract with him for absenteeism without good reason.

The state of intoxication or narcotic or toxic intoxication of an employee can be confirmed both by a medical report and other types of evidence;

3) disclosure of legally protected secrets (state, commercial, official and other, including personal data of another employee or employees), which became known to the employee in connection with the performance of his labor duties (subclause "c", clause 6 of article 81 of the Labor Code of the Russian Federation ). On the concept, procedure and conditions for admitting an employee to state, commercial and official secrets, see paragraph 5 of the commentary to Art. 57 of the Labor Code of the Russian Federation.

One of the main and indispensable conditions for protecting the right to official and commercial secrets in accordance with Art. 139 of the Civil Code of the Russian Federation advocates the adoption by the owner of information of specific measures to protect their confidentiality. These measures are divided into organizational (for example, recruitment), technical (application technical means information protection) and legal.

Legal measures include:

development and adoption of a special provision on official and commercial secrets;

approval of the list of information constituting official and commercial secrets;

inclusion in the employment contracts of employees of conditions on non-disclosure of official and trade secret etc.

If the owner of this information (employer) does not take such measures, then he is deprived of the opportunity both to protect his rights in relations with third parties and to make any claims against own employees who share this information with third parties or use it outside the organization.

Accordingly, as indicated in the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (p. 43), if the employee disputes the dismissal under subp. "in" paragraph 6 of Art. 81 of the Code, the employer is obliged to provide evidence that the information that the employee disclosed, in accordance with applicable law, refers to state, official, commercial or other secrets protected by law or to the personal data of another employee, this information became known to the employee in connection with performance of his labor duties and he undertook not to disclose such information;

4) committing at the place of work theft (including small) of someone else's property, embezzlement, its deliberate destruction or damage (subparagraph "d", paragraph 6 of article 81 of the Labor Code of the Russian Federation).

On this basis, employees whose guilt has been established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties may be dismissed. The commented norm speaks of the theft of other people's property, without specifying who is the subject of property ownership - the employer or a third party (another economic entity, another employee).

It is indisputable that the following property is subject to this rule:

a) owned by the employer or in his possession or use on other legal grounds;

b) accepted by the employer under protection and for failure to ensure the safety of which he can be held liable (for example, clothes handed over to the wardrobe; equipment belonging to organizations or individuals performing work under civil law contracts on the territory of the organization, the safety of which is guaranteed by the employer ; a tool owned by other workers who used it to perform work under an employment contract).

At the same time, the wording of the commented grounds for dismissal does not exclude the possibility of terminating an employment contract with an employee in the event that he steals any other property located at his place of work.

With this in mind, the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 states (part 2, clause 44) that any property that does not belong to this employee, in particular property belonging to the employer, others should be regarded as someone else's property employees, as well as persons who are not employees of this organization.

Since the dismissal under sub. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is a disciplinary sanction, established by law (see Article 193 of the Labor Code of the Russian Federation and commentary thereto), the one-month period for the application of this measure is calculated from the date of entry into force of a court verdict or decision of a judge, body, official authorized to consider cases on administrative offenses (part 3, clause 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

If a criminal penalty is imposed for the commission of the specified act, by virtue of which the possibility of continuing work is excluded, the employee may be dismissed as per subpara. "d" paragraph 6 of Art. 81, and according to paragraph 4 of Art. 83 of the Labor Code of the Russian Federation (see article 83 of the Labor Code of the Russian Federation and commentary thereto);

5) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph "e", paragraph 6 of article 81 of the Labor Code of the Russian Federation) .

In accordance with labor legislation, an employee is obliged to comply with labor protection requirements established by laws and other regulatory legal acts, as well as labor protection rules and instructions (see F and commentary thereto). As follows from this article, the obligation to comply with labor protection requirements applies to all persons who are labor relations therefore, failure to comply with this duty by any employee is a disciplinary offence. Accordingly, an employment contract may be terminated with any person who has committed the act specified in subpara. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation.

Termination of an employment contract is possible provided that the actions of the employee caused serious consequences or knowingly created a real threat of their occurrence. Therefore, the employer must establish, and in the event of a dispute, prove the existence of: a) illegal actions of the employee; b) serious consequences; c) the necessary causal relationship between the actions of the employee and the consequences. The presence of such circumstances is established by the labor protection commission or the labor protection commissioner in accordance with the established rules (see articles 217, 218, 227 - 231 of the Labor Code of the Russian Federation and commentary thereto).

If an employee is dismissed due to the fact that his actions created a real threat of serious consequences, it is necessary to determine, firstly, those socially significant interests that were endangered as a result of the employee’s illegal actions; secondly, the circumstances that prevented the onset of grave consequences. These may be accidental factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.

The employer must establish the guilt of the employee. It is expressed in the fact that the employee, firstly, was aware or could and should have been aware of the unlawful nature of his actions related to the violation of labor protection requirements; secondly, he foresaw or could and should have foreseen the likelihood of grave consequences. In the event that the employee could not and should not have foreseen the onset of serious consequences, he cannot be dismissed on the grounds under consideration, which does not exclude disciplinary liability for violation of labor protection rules.

In the absence of the employee’s fault, bringing him to responsibility and terminating the employment contract under sub. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is excluded. Particular cases of this kind are the actions of an employee in a state of emergency or actions aimed at fulfilling the order of a competent manager. In the latter case, the liability of the employee is excluded, provided that he warned his immediate or superior manager about the possibility of a situation threatening the rights and interests protected by law (see Article 214 of the Labor Code of the Russian Federation and commentary thereto).

Since the law connects the actions of an employee with the onset (or the possibility of onset) of grave consequences, the existence of grounds for terminating an employment contract with him can be confirmed by a court verdict that has entered into force.

Along with dismissal on the grounds under consideration, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Code of Administrative Offenses).

As follows from the content of paragraph 6 of Art. 81 of the Labor Code, the list of cases that are a gross violation of their duties by an employee is exhaustive and is not subject to broad interpretation (paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). Termination of an employment contract on any of the grounds specified in this paragraph of Art. 81 of the Labor Code is carried out in the manner established for the application of disciplinary sanctions (see article 195 of the Labor Code of the Russian Federation and commentary to it).

7. The grounds listed in paragraphs 1, 2, 3, 5 and 6 of Art. 81 of the Labor Code are among the general grounds for termination of an employment contract at the initiative of the employer. In terms of their content and legal significance, these grounds imply both the presence of guilty actions of the employee and their absence. Along with them, Art. 81 contains a list of special grounds (clauses 4, 7 - 13) for the dismissal of employees of certain categories in the presence of special ones arising from the peculiarities legal status these workers conditions. Most of these grounds assume the presence of guilty actions on the part of the employee.

8. The change of the owner of the property of the organization (clause 4 of article 81) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.

Since, in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of contributions from the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is a company or partnership, and the participants, by virtue of par. 2 p. 2 art. 48 of the Civil Code of the Russian Federation have only liability rights in relation to such legal entities (for example, to participate in managing the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for terminating an employment contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property economic partnership or the company still remains the partnership or company itself and there is no change in ownership of the property (part 4, clause 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

When the owner of the property of an organization changes, the new owner, no later than three months from the date of the emergence of his ownership right, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant (see Article 75 of the Labor Code of the Russian Federation and commentary to it). The only legal basis that gives rise to the right of the employer to terminate the employment contract with these persons is the fact of a change in the owner of the organization's property, therefore, for the application of this paragraph, the personal and professional qualities of the dismissed persons (level of qualification, discipline, etc.) do not matter.

The change of the owner of the property of the organization is not a basis for terminating contracts with other employees of the organization. In the event that the employee refuses to continue working due to a change in the owner of the organization's property, the employment contract is terminated under paragraph 6 of Art. 77 of the Labor Code of the Russian Federation.

For guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract due to a change in the owner of the organization, see Art. 181 of the Labor Code of the Russian Federation and commentary to it.

9. An employee who directly serves monetary or commodity values \u200b\u200bcan be dismissed due to the loss of confidence in him by the employer in case of committing guilty acts (clause 7 of article 81).

Dismissal on the specified grounds is possible only in relation to employees directly serving monetary or commodity values (reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer a reason to lose confidence in him (part 1, clause 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). Such employees, as a general rule, are those who belong to the category of persons who bear full financial responsibility for the monetary or commodity values \u200b\u200bentrusted to them on the basis of special laws or special written agreements (see articles 242 - 245 of the Labor Code of the Russian Federation and commentary on them) .

Accountants, accountants, merchandisers, controllers, markers and other employees cannot be dismissed due to loss of confidence, since material values are not directly entrusted to them.

The loss of confidence on the part of the employer must be based on objective evidence of the employee's guilt in causing material damage or committing illegal activities. If the fault of the employee is not established, then he cannot be dismissed for reasons of loss of trust, despite the presence of a shortage, damage to the entrusted values, etc.

When the fact of embezzlement, bribery and other mercenary offenses is established, an employee may be dismissed on the basis of loss of confidence even if these actions are not related to their work (part 2, clause 45 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2).

10. The commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, article 81 of the Labor Code of the Russian Federation) is also a special basis for terminating an employment contract. On this basis, it is allowed to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions. Employees who do not perform educational functions (including heads of organizations, structural divisions) are not subject to dismissal on this basis.

A misdemeanor is considered immoral if it contradicts generally accepted norms of morality, and it does not matter whether it is related to the work performed or not (paragraph 46 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

In particular, the use of educational measures that are associated with physical (or) mental violence against the student's personality should be considered a misdemeanor of this kind (see clause 2 of article 336 of the Labor Code of the Russian Federation and commentary thereto). The severity of the misconduct is a matter of fact to be assessed in the circumstances by the person making the dismissal or by the review body. labor disputes.

The Supreme Court of the Russian Federation (paragraph 47 of the Decree of the Plenum of March 17, 2004 N 2), and after it the legislator (see article 192 of the Labor Code of the Russian Federation and commentary thereto) proceed from the fact that if the guilty actions that give rise to loss of confidence (see paragraph 9 of the commentary to this article), or an immoral offense committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed from work (respectively, according to paragraphs 7 or 8 81 of the Labor Code of the Russian Federation), subject to the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation.

However, given that the termination of the employment contract under paragraphs 7 and 8 of Art. 81 of the Labor Code of the Russian Federation can also be carried out in the case when the guilty actions that give rise to the loss of confidence, or, accordingly, an immoral offense are committed by the employee not at the place of work and not in connection with the performance of his labor duties, dismissal in this case is not a disciplinary measure, the application of which is due to the terms established by the Code, since by virtue of Part 1 of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for non-performance or improper performance by the employee through his fault of the labor duties assigned to him. At the same time, when considering cases on the reinstatement of persons dismissed on these grounds, the courts must take into account the time that has elapsed since the commission of an immoral offense or guilty actions of an employee in whom confidence has been lost, his subsequent behavior and other specific circumstances of importance to properly resolve the dispute. Accordingly, by virtue of h. 5 Article. 81 of the Labor Code of the Russian Federation in the current edition, dismissal in this case is possible no later than one year from the date of discovery of the misconduct by the employer. The day when the misconduct was discovered should be considered the day when the employer became aware or should have become aware of the fact of the misconduct. The circle of relevant officials of the employer should be determined according to the rules established for fixing the day a disciplinary offense was discovered (see Article 193 of the Labor Code of the Russian Federation and commentary thereto).

11. The adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant can serve as a basis for terminating the employment contract only if this entailed a violation of the safety of property, its misuse or other damage to the property of the organization (clause 9 article 81 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is possible if the following conditions are met:

When making a decision that was later recognized as unreasonable, the employee acted outside the normal production and economic risk or not at all in accordance with the goals economic activity employer;

The unjustified decision of the employee actually caused property damage (both positive and in the form of lost profits) to the employer.

When deciding whether the decision was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of making this decision and whether they could have been avoided if another decision was made. Moreover, if the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (part 2, clause 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are beyond the economic goals of the employer as the owner of the property. The grounds for terminating the employment contract with these employees take place in this case due to not only the loss or damage to property, but also the loss of part of its value, i.e. depreciation (depreciation). It does not matter who caused the damage - by the employee himself or by other persons; for dismissal, the fact that the decision taken by the guilty employee provided an opportunity (served to necessary condition) to cause damage to the employer.

12. A single gross violation by the head of an organization (branch, representative office), his deputies of their labor duties (clause 10, article 81 of the Labor Code of the Russian Federation) is the basis for terminating an employment contract with a special subject of an employment contract, which in this case are the head of an organization (branch and representative offices), as well as his deputies.

In accordance with Art. 55 of the Civil Code of the Russian Federation, representative offices and branches of a legal entity act as separate structural units. The representative office is separate subdivision legal entity located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. Heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney.

With the heads of other structural divisions and their deputies, as well as the chief accountant of the organization, the employment contract cannot be terminated under paragraph 10 of Art. 81 of the Labor Code of the Russian Federation (part 4, clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

This ground for termination of the employment contract almost textually reproduces the content of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. Consequently, the head of an organization (branch, representative office) and his deputies can be dismissed either under paragraph 6 (in case of an offense that is a gross violation), or under paragraph 10 of Art. 81 of the Labor Code of the Russian Federation. In the latter case, the basis for making a decision to terminate the employment contract with the manager may be any violation by him of his labor duties, recognized as gross, including the one in accordance with which the employment contract may be terminated under paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. The question of the severity of the disciplinary offense that served as the basis for the dismissal of an employee under paragraph 10 of Art. 81, there is a question of fact, i.e. it must be assessed in the light of all the specific circumstances in which it was committed. Such an assessment is made by a person authorized to carry out dismissal, and in the event of a dispute, by a labor dispute resolution body. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or causing property damage to the organization (parts 2 and 3 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

13. Submission by the employee to the employer of false documents when concluding an employment contract (clause 11, article 81 of the Labor Code of the Russian Federation) as a basis for terminating the employment contract at the initiative of the employer means that in this case, the basis for dismissal is the guilty (deliberate) actions of the employee.

It should be borne in mind that, in accordance with Art. 81 of the Labor Code of the Russian Federation in its current edition, dismissal under paragraph 11 of Art. 81 of the Labor Code of the Russian Federation is possible only if the employee submits false documents to the employer when concluding an employment contract (for example, when concluding an employment contract, the employee submitted a falsified document on special education). Upon submission to the employer of knowingly false information that prevents the conclusion of an employment contract, dismissal is carried out in accordance with the rules established by Art. 84 of the Labor Code of the Russian Federation. The new version of the said paragraph of Art. 81 of the Labor Code of the Russian Federation raises some doubts, since it levels out the differences in the grounds for terminating an employment contract under this paragraph and in accordance with.

It remains unclear the question of the consequences of submitting false documents to the employer when concluding an employment contract. Firstly, such documents can certify that the employee has special knowledge or skills, the possession of which is an indispensable condition for concluding an employment contract with him. Accordingly, if the documents are falsified, this is a circumstance that gives grounds for the dismissal of this person, not only under paragraph 11 of Art. 81 of the Labor Code, but also under Art. 84 of the Labor Code of the Russian Federation. Secondly, false documents submitted by a person applying for a job may not condition the conclusion of an employment contract with him, but at the same time indicate the right to receive any additional benefits and advantages at work. It seems that if such circumstances are discovered, the employee can be dismissed in accordance with paragraph 11 of Art. 81 of the Labor Code of the Russian Federation.

By virtue of part 2, clause 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2007 N 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents by him, then the employment contract with such an employee is terminated according to the specified paragraph, and not on the grounds listed in Art. 84 of the Labor Code of the Russian Federation.

14. In accordance with paragraph 13 of Art. 81 an employment contract with the head of the organization, members of the collegial executive body of the organization may be terminated in cases stipulated by the employment contract. Thus, the legislator interprets the termination of an employment contract on the grounds established by the employment contract as one of the special cases of dismissal of an employee at the initiative of the employer. In fact, an employment contract with a manager (a member of the collegial executive body of the organization) may provide for cases of termination of the employment contract both at the initiative of the employee and as a result of the occurrence of circumstances that depend neither on the will of the employee nor on the will of the employer.

15. As follows from paragraph 14 of Art. 81 of the Labor Code, an employment contract at the initiative of the employer may also be terminated in cases other than those listed in the specified article, established by the Labor Code of the Russian Federation and other federal laws. In particular, among such cases are additional grounds for terminating an employment contract with the head of an organization and a member of its collegial executive body (see paragraphs 1 and 2 of article 278 of the Labor Code of the Russian Federation and commentary thereto); termination of an employment contract with a part-time job (see article 288 of the Labor Code of the Russian Federation and commentary thereto); with an employee - a foreign citizen.

A special case of termination of an employment contract is the dismissal of an employee due to the achievement of an age that precludes, by virtue of law, the retention of this job by him.

As a general rule, restrictions on labor rights and freedoms or the provision of any benefits depending on circumstances not related to the business qualities of the employee, including depending on age, are recognized as discrimination and are prohibited (see also the commentary to it). It follows from the content of the Constitution that retirement age cannot serve as an obstacle to the exercise by citizens of the right to work both at the conclusion of an employment contract and at its termination. In a number of cases stipulated by federal law, from this general rule exceptions are allowed (for example, when dismissing a state or municipal employee, certain categories of teachers, etc.).

16. Termination of an employment contract is considered legal provided that, in addition to the grounds provided for by law, the employer complies with the established procedure for terminating an employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees (see clause 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17 March 2004 N 2). This procedure provides:

prohibition of dismissal of certain categories of workers. Dismissal is not allowed: an employee during his period of temporary disability and during his vacation (part 6 of article 81 of the Labor Code of the Russian Federation); pregnant women, as well as women with children under the age of three; single mothers raising a child under the age of 14 (a disabled child - under 18); other persons raising these children without a mother (see to her);

layoff notice. The specified obligation is assigned to the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction in the number or staff of employees (see to it).

Upon termination of the employment contract for the indicated reasons (clauses 1 and 2 of article 81 of the Labor Code of the Russian Federation), employees are warned about the upcoming dismissal by the employer personally against signature at least two months before the dismissal. In case of non-compliance with the term for warning the employee about dismissal, if he is not subject to reinstatement for other reasons, the court changes the date of his dismissal so that the employment contract is terminated after the expiration of the notice period established by law.

The period for which the employment contract is extended due to the postponement of the date of dismissal is payable to the employee based on his average earnings.

In the event of dismissal of employees due to a reduction in the number or staff, the preferential right to remain at work is taken into account (see Article 179 of the Labor Code of the Russian Federation and commentary thereto).

When deciding to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees in accordance with paragraph 2 of Art. 81 the employer is obliged to inform the trade union body of the primary trade union organization about this in writing no later than two months, and in case of mass dismissal - no later than three months before the start of the relevant events (see article 82 of the Labor Code of the Russian Federation and commentary thereto).

When deciding to liquidate an organization, reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing no later than two months before the start of the relevant events and indicate the position, profession, specialty and qualification requirements for 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 dismissal of employees - no later than three months before the start of the relevant measures (clause 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment in the Russian Federation"). On the concept, criteria and organizational and legal consequences of the mass dismissal of workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary to them;

mandatory certification. On the conditions and procedure for conducting certification upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, paragraph 8 of the commentary to art. 82 TC;

taking measures for the employment of the laid-off worker. In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal due to a reduction in the number or staff of employees, as well as inconsistency of the employee with the position held or work performed (clauses 2 and 3 of article 81) is allowed if it is impossible to transfer the employee with his consent to another job.

The same rule applies to the termination of the employment contract with the rector, vice-rector, dean of the faculty, head of the branch (institute), state or municipal educational institution of higher education. vocational education in connection with their reaching the age of 65 (see Article 332 of the Labor Code of the Russian Federation and commentary thereto).

Other work is any other work that the worker is able to perform in accordance with his professional qualifications or health condition. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization, corresponding to the qualifications of the employee, and in the absence of such a job, another vacant lower position available in the organization or a lower-paid job that the employee can perform taking into account the above factors. 29 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with warning him of the upcoming dismissal. Consent of the employee to perform certain work(replacement of a vacant position) or his refusal from new work(positions) is fixed in writing and certified by the signature of the employee.

The dismissal of employees in the event of termination of the activities of a separate structural unit located in another locality is carried out according to the rules provided for in cases of liquidation of the organization. This, in particular, means that the employer is released from the obligation to employ the laid-off workers in the organization.

When considering cases on the reinstatement of civil servants dismissed in connection with the liquidation of a state body or the reduction of civil service positions, one should be guided by the provisions of Art. Art. 31, 32 and 38 of the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation".

It must be borne in mind, however, that according to Art. 73 of the said Federal Law, the Labor Code of the Russian Federation, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms, may be applied to relations related to the civil service, in part, not regulated by the Federal Law "On the State Civil Service of the Russian Federation" (paragraph 30 of the Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Consideration of the motivated opinion of the elected trade union body. On the grounds for participation and the procedure for taking into account the motivated opinion of the elected trade union body in considering issues related to the termination of the employment contract at the initiative of the employer, see Art. , to them.

Obtaining the employer's consent to terminate the employment contract with the employee. Representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for a misdemeanor, for which, in accordance with the Code, other federal laws, dismissal is provided From the job ().

Representatives of employees, their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (see also the commentary to it).

The heads (their deputies) of elected collegial bodies of primary trade union organizations who are not released from their main work, during their term of office and within two years after its completion, may be dismissed under paragraphs 2, 3 or 5 of Art. 81 of the Labor Code of the Russian Federation only with the prior consent of the relevant higher elected trade union body (see paragraph 11 of the commentary to article 82; art., and commentary to them).

The Labor Code of the Russian Federation in most disputable situations is on the side of hired personnel as the least protected in labor relations. That is why it is impossible to release a hired employee without his desire and will, if there are no grounds provided for by law that make up a closed list. This means that termination of an employment relationship with an employee at the request of the employer is allowed only for a number of clearly established reasons.

At the same time, such dismissal must be carried out strictly according to the established procedure, otherwise litigation by the unfairly dismissed employee is possible, and with an almost guaranteed outcome not in favor of the employer.

We will tell you what grounds an employer may have for such termination. contractual relations with an employee and how to properly follow the entire procedure in accordance with labor law Russian Federation.

Regulations on the Labor Code of the Russian Federation

The initiative of the administration of the organization in terminating the contract on labor relations is possible on the basis of paragraph 4 of Art. 77 of the Labor Code of the Russian Federation. The reasons that make such a procedure legally justified are listed in Art. 81 of the Labor Code. It is the paragraphs of Art. 81 are officially established articles that are indicated in the employee's work book when a dismissal entry is made in it.

IMPORTANT! The text that will appear in the work book at the same time should not differ from the wording given in the relevant paragraph of the legislation.

Closed list of grounds

The list of reasons that are legitimate for initiating the termination of an employment relationship is very strict. It is not allowed to add new reasons to it, nor to expand the interpretation of existing ones by law.

The only option when the reasons for dismissal by the administration may not be contained directly in the text of the Labor Code may be the case provided for by law when they are included in the employment contract itself and secured by mutual agreement of the parties. At the same time, such grounds should not contradict any legislative acts of a higher order: the collective agreement, the Labor Code, the Constitution of the Russian Federation.

NOTE! In cases of such dismissals, the wording in the work book should be with reference to the relevant information from the text of the contract, as well as to the article of the Labor Code, which allows such conditions to be included in the contractual rights of the parties.

Termination initiatives equally eligible for all categories of employees

Liquidation of the company or termination of the activity of the IP. Such a basis is provided for in paragraph 1 of Art. 81 of the Labor Code of the Russian Federation. A legal entity may be liquidated if such is the will of its founders, or by a relevant court decision, as well as in other circumstances provided for by law. An individual entrepreneur has the right to cease to exist after the expiration of the registration period, as a result of bankruptcy, as well as at the sole request of a businessman.
Hired personnel working in an LLC or working for an individual entrepreneur are subject to dismissal without taking into account the opinion of the employees themselves. Each employee is warned in writing 60 days in advance, and in the event of a mass dismissal, it is also necessary to notify the trade union organization and the relevant state bodies and social funds 3 months in advance.

IMPORTANT INFORMATION! If a legal entity leaves the register not due to a complete cessation of activity (liquidation), but due to reorganization, then such dismissal will not be legal. It will require the will of the employee, that is, the unwillingness to continue cooperation in the reorganized firm. For individual entrepreneurs, the terms of preliminary information may differ, determined by the conditions prescribed in employment contracts.

Downsizing or downsizing is the basis for dismissal under paragraph 2 of Art. 81 TK. The text of the law does not exact definition"downsizing", usually in practice entrepreneurial activity it means:
- the abolition of the corresponding position in the staff list;
- a significant reduction in labor duties in the interests of the organization;
- change working conditions, for example, the modernization of technology, as a result of which personnel changes are needed.
An employee dismissed under such an article does not agree to another position, which must be offered to him in writing within the limits of his qualifications, and does not have preferences for leaving similar qualifications in front of other employees.

For such dismissal, prior written information and consideration of the opinion of the trade union is also mandatory.
Inconsistency with the position held according to the results of certification- grounds for termination of the contract under clause 3. Art. 81 TK. The employer has the right to dismiss an employee who has ceased to comply qualification requirements established for this position, which was confirmed by an audit carried out according to the legally established procedure. Such a dismissal would be illegal for some special categories of personnel, since the law does not allow certification for:
- newly minted employees with less than a year of experience in this position;
- employees who are in position;
- workers-parents of young offspring up to 3 years and some others.
It is also impossible to dismiss on such a basis if it is possible to transfer an employee to another position, which will correspond to his confirmed qualification, and the employee agrees to such a transfer.
Dismissal of the chief accountant and management in the event of a change of ownership regulates paragraph 4 of Art. 81 TK. Other employees of the organization cannot receive a labor record for such a clause of the Labor Code upon dismissal, unless they themselves refuse to cooperate with the new owner of the organization. The transfer of ownership of the company's property gives grounds for terminating the contract with management positions: the new owner has 3 months to exercise this right.
disciplinary reason(clause 5 of article 81 of the Labor Code) allows you to unilaterally terminate the contract with an employee if he violated the labor schedule or safety rules several times (at least 2), which is fixed by the imposition of penalties. A single violation is possible in case of gross violations noted in the Labor Code (clause 6 of article 81), for example, absenteeism, waiver of mandatory medical examination, theft, disclosure of trade secrets, drunkenness at work, etc. The terms for such dismissal are limited to one month from the date the violation was discovered and six months from the moment it was committed.
False information when concluding a contract(Clause 11, Article 81 of the Labor Code of the Russian Federation). If the employee, when signing contractual obligations during employment, provided the employer with false documentation or knowingly false information about himself, his qualifications, education, etc.

IMPORTANT! Not any conviction of a lie can be a reason for such a dismissal, but only a distortion of such information that can really influence the decision on employment. For example, if a woman, when applying for a job, did not admit that she was expecting a child, she cannot be fired for this, since pregnancy cannot be an obstacle to employment.

Guilty actions of a materially responsible employee(clause 7 of article 81 of the Labor Code). If an employee, by the nature of his duties, is responsible for material or financial values, and at the same time committed an act that affected the employer's confidence in him, he may be dismissed for this. Other employees, even those related to finance, are not entitled to be released for this reason. Evidence of the guilty actions of such an employee (audit, inventory, control purchase, etc.) is obligatory for the employer. The term for such dismissal is a month from the announcement of the employee as guilty in court, or a year if such actions of the employee were not directly related to his work.
The immoral act of the "educator"(Clause 8, Article 81 of the Labor Code of the Russian Federation). If a person, by the nature of his service, performs educational functions and at the same time committed a violation of the norms of public morality, which is established and proven by law.
Dismissal of management for a "bad" management decision(Clause 9, Article 81 of the Labor Code). If any action of the management (accounting, managers) caused damage to the owner of the organization in relation to property and / or finances, such employees (but only these categories of them!) Can be dismissed at the initiative of the employer.
Additional grounds(clause 14, article 81 of the Labor Code) may be provided not only by the Labor Code, but also by other legislative acts. These may include the following:
- dismissal of a part-time employee when hiring a “main” employee;
- for teachers - violation of the charter of the educational institution several times during the year;
- for diplomats and consuls - a wide range of grounds and restrictions;
- the reasons set out in the employment contract itself are for personnel working for an individual or working in religious associations.

The dismissal of an employee at the request of the management is carried out for various reasons. Sometimes for personal reasons, which is contrary to labor law. The employee is offered to leave the enterprise on his own initiative. As a result, the employee loses the source of income and part of the payments. We will analyze in more detail in the article.

Foundations

Directors of enterprises are ready to go to great lengths in order to save money by firing subordinates. In order not to be in a delicate situation, carefully read the Labor Code. Article 81 of the Labor Code of the Russian Federation states that the manager may part with the employee on his own initiative in the following cases:

- complete liquidation.
Professional quality employees do not correspond to the position held in the organization. Dismissal occurs on the basis of attestation results.
Transfer of the enterprise to other hands as a result of reorganization or privatization.
Systematic refusal to perform the functions assigned to the employee without indicating a reason.
One-time gross violation:

absenteeism, when the employee does not appear at the place of work for more than four hours for no reason.

– the presence of an employee under the influence of alcohol, drugs or toxic substances.

- transfer to third parties of information that is an official secret entrusted to an employee, in particular, the dissemination of personal information of colleagues at work.

– theft, embezzlement, deliberate destruction, damage to the property of the enterprise. First, the management conducts an internal administrative investigation with the subsequent transfer of the case to the court.

- Failure to comply with safety regulations, which led to sad consequences. The dismissal of an employee occurs if the fact of violation is proven.

Distrust on the part of management towards persons responsible for material values. For example, the loss of a sum of money due to the fault of an employee.
Providing false information by an employee about income, expenses, property on the side, open accounts abroad. There is a conflict of interest. If the employee does not seek to resolve the relationship, the employer may dismiss him.
Immoral behavior of an employee performing the functions of an educational nature at the enterprise.
Making wrong decisions by management personnel, which led to unpredictable consequences.
A single gross violation of functional duties by management.
Submission of false documents to the personnel department when applying for a job.
Termination of labor relations for other reasons that do not contradict labor laws.

If an employee believes that they are dismissing him unreasonably, you can safely go to court.

Terms and conditions for termination

If the head of the enterprise decides to dismiss an employee, he must have sufficient grounds for this:

the results of an administrative investigation;
medical examination of an employee for alcohol, drugs, toxic substances;
results ;
an act confirming absenteeism of an employee;
the court's decision.

Termination of employment relationship:

The head issues an order or order to expel an employee from the staff of the enterprise. The document indicates the date, reason for dismissal and article of the Labor Code of the Russian Federation. If the decision to dismiss was taken collectively, for example, with members of the trade union, this is reported in the order.

The employee is required to familiarize himself with the order of the management against receipt. If the dismissal is associated with serious violations, three days are given for familiarization.
On the day the employee vacates the workplace, the manager is obliged to issue a work book to the employee, drawn up in accordance with the Labor Code of the Russian Federation. At the written request of the employee, copies of other documents related to labor activity for the past period are issued. All papers are issued at the same time.
If the employee did not come for them, the employer sends the employee a written notice informing them of the need to pick up labor documents. From this day on, the management declines responsibility for the untimely issuance of labor papers.
If the employee cannot pick up the documents in a timely manner, he will have to send the management a written consent or power of attorney to transfer labor papers to a third party, for example, a relative or work colleague.
If the director of the enterprise intentionally does not give the work book, and such cases happen, then he will have to bear financial responsibility. Based on a court order, the employer will pay for the working days in which the employee was not able to get another job.
The employee must be calculated on the day he is released from his post. If the employee applied for the money later, then on the day of the request, everything is paid to him.

Early termination of a fixed-term employment contract at the initiative of the employer

A fixed-term employment contract is an employment relationship between an employer and an employee with a specific period of validity. A contract is concluded if it is not possible to establish a permanent employment relationship.

Article 81 of the Labor Code of the Russian Federation defines cases when management can terminate fixed-term contract before. It does not matter how the employee works - permanently or temporarily. Everyone has the same rights. Preferential categories The same.

Based on Article 79 of the Labor Code of the Russian Federation, the manager has the right to ask the employee to vacate his place without waiting for the end urgent contractual relationship:

If the job is temporary. For example, the contract was concluded before 06/31/2017. Employees managed until 06/25/2017. The employer terminates the contract on June 25, 2017 with all payments due. All conditions of early dismissal are stipulated in the employment contract.
If the employee works temporarily while the main employee is absent. For example, a woman is in maternity leave until August 27, 2018. Experiencing financial difficulties, mommy decided to go to work on 06/25/2017. The replacement employee is terminated early. All the nuances are initially set out in the labor document.
If the contract is seasonal, for example, for the time of sowing work in agriculture. At the end of the season, all temporary workers get fired.

The employer has no right to terminate the employment relationship for personal reasons!

They want to leave of their own accord. Is it worth agreeing? (video)

Let's watch a short video. An expert from the Center for Social and Labor Rights tells whether it is worth agreeing to write a letter of resignation voluntarily if the employee is under pressure. What does an employee lose in such a situation:

When termination of an employment contract is not allowed

The Supreme Court gives clarifications on the inadmissibility of dismissal of personnel at the initiative of management in a number of cases:

If the employee is on sick leave or vacation.

Concealment of information about the sick leave - abuse of the right - refusal to reinstate at work in the future!

It is impossible to dismiss women of certain categories:

- during pregnancy;

- single moms with dependent children under 14;

– leave to care for a baby up to three years;

– upbringing of a disabled child under 18;

- guardians and other persons who raise children left without a mother.

The dismissal of young people under the age of eighteen is not allowed. Dismissal is possible if the state inspection bodies give their consent.
It is not so easy to part with an employee of a trade union organization. The procedure for terminating employment relations is carried out on the basis of the collegial opinion of all members of the trade union, who must, within a seven-day working period, make their decision or motivating opinion and submit it to the management in writing. Otherwise, the director dismisses the employee on his own.
Do not terminate the employment relationship with employees participating in collective bargaining during the period of their conduct, with the exception of the commission of a serious misconduct by the employee.

All of the above items are legally binding. An exception to the rule may be the termination of the enterprise. The staff is fired with the payment of all benefits and compensation.

Payments and compensation

Article 13 of the Labor Code of the Russian Federation states that there are mandatory payments that are included in the calculation of the employee, regardless of on whose initiative he leaves:

wages for the period worked, bonuses and allowances, if they are included in the wage fund;
compensation for vacation not used by the employee.

There are no issues with wages. Holiday pay is more difficult. Payment is made for all days of unused vacation, but not more than for the previous two years. If the employee has not gone on vacation for more than two years, the manager will have to explain why the employee was not sent on a planned vacation.

For example, an employee occupies a serious position. There was no replacement during the planned vacation. Or the employee intentionally wrote a written refusal, postponing the vacation for future periods.

If such documents are not submitted by the head, the payment of compensation may be entrusted to the employer by a court decision. For example, an employee did not rest for 3.5 years. For two years - the organization will pay, for 1.5 - the director of the enterprise, if a trial takes place.

The employee has the right, instead of material compensation, to issue a vacation with subsequent dismissal. As soon as the rest ends, the worker goes for labor documents.

If an employee has taken more vacation than is due, compensation will be deducted from the employee at the rate of dismissal. Let's consider the cases when no retention:

Termination of the organization.
Reducing the number of staff.
Reorganization of the enterprise - change of ownership.
Restoration of an employee to his former place of work by decision of the judicial authorities.
The death of an employee, as well as the recognition of an employee as dead or missing. Judgment will serve as the basis.
Natural disasters, as a result of which the employee is unable to continue working at the enterprise.

not always paid.

If the company is completely liquidated or the staff is reduced, the employee receives an allowance in the amount of the average monthly earnings. In the future, the employer pays the same amount for another two months if the employee does not get another job. The basis for receiving payments is the work book.

Severance pay for six months assigned to residents of the Far North and nearby areas.

Seasonal employees will receive two weeks average monthly salary, if the organization ceases to operate or reduces the number of employees.

The same allowance is due in the following cases:

Termination of the organization's activities and reduction in the number of personnel.
The employee submits a medical opinion that he cannot perform functional responsibilities for health. The cause may be partial or complete disability.
Dismissal of a young person due to being sent to military or alternative service.
Reinstatement of an employee who was previously dismissed illegally, by decision of the judicial authorities.
The refusal of an employee to move to another area when transferring to another job.

When dismissed for serious misconduct, severance pay not paid! For this reason, the employee is deprived of some allowances, if any are provided for in the contractual agreement, for example:

a secrecy bonus if an employee divulged official secrets;
an allowance for the complexity of the work, if the employee did not perform functional duties in full or with violations.

Prize, laid down in the wage fund, is paid monthly. The percentage of bonuses is set in each organization. When an employee is dismissed for non-compliance and violations, the bonus, as a rule, is not included in the calculation.

The basis for depriving an employee of bonuses, allowances and severance pay is the order of the head. A separate paragraph is drawn up in the document, which details what payments the employee is deprived of and the grounds for such a decision.

If you are offered to resign of your own free will without good reason, do not rush to write a statement. Read the labor laws carefully. If threats are received from the management, it is better to immediately go to court.

The grounds for termination of an employment contract are:

1) agreement of the parties (Article 78 of this Code);

2) expiration of the term of the employment contract (Article 79 of this Code), except for cases where the employment relationship actually continues and none of the parties has demanded their termination;

3) termination of the employment contract at the initiative of the employee (Article 80 of this Code);

4) termination of the employment contract at the initiative of the employer (Articles 71 and 81 of this Code);

5) transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);

6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);

7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);

8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);

9) the employee's refusal to be transferred to work in another locality together with the employer (part one of Article 72.1 of this Code);

10) circumstances beyond the control of the parties (Article 83 of this Code);

11) violation of the rules for concluding an employment contract established by this Code or other federal law, if this violation excludes the possibility of continuing work (Article 84 of this Code).

An employment contract may also be terminated on other grounds provided for by this Code and other federal laws.

Part three is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.

Article 78. Termination of an employment contract by agreement of the parties

The employment contract may be terminated at any time by agreement of the parties to the employment contract.

Article 79. Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of an employment contract due to its expiration at least three calendar days before dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

(part one as amended by Federal Law No. 90-FZ of 30.06.2006)

An employment contract concluded for the duration of a certain work is terminated upon completion of this work.

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

An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work.

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

An employment contract concluded for the performance of seasonal work during a certain period (season) terminates at the end of this period (season).

Article 80

The employee has the right to terminate the employment contract by notifying the employer in writing no later than two weeks in advance, unless another period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal.

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

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.

In cases where the employee's application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in educational institution, retirement and other cases), as well as in cases of established violation by the employer of labor legislation and other regulatory legal acts containing labor law norms, local regulations, terms of a collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's statement.

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

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 in his place in writing, who, in accordance with this Code and other federal laws, cannot be refused to conclude an employment contract.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

If the employment contract has not been terminated after the expiration of the termination notice and the employee does not insist on dismissal, then the employment contract continues.

Article 81. Termination of an employment contract at the initiative of the employer

The employment contract may be terminated by the employer in the following cases:

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

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

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

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

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

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

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

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

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

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

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

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

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

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

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

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

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

11) submission by the employee to the employer of false documents when concluding an employment contract;

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

12) is no longer valid. - Federal Law No. 90-FZ of June 30, 2006;

13) provided for by 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 labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

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

(Part five was introduced by Federal Law No. 90-FZ of June 30, 2006)

(Part six was introduced by Federal Law No. 90-FZ of June 30, 2006)

Article 82

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

The provision of part one of Article 82 of this Code, according to which, when making a decision to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to notify in writing the elected body of the primary trade union organization no later than two months before the start of the relevant events, in the system of current legal regulation means that the employer, when making the appropriate decision, is obliged to inform the elected body of the primary trade union organization about this in writing no later than two months before the start of termination of employment with employees contracts (determination of the Constitutional Court of 15.01.2008 N 201-O-P).

When deciding to reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts with employees in accordance with paragraph 2 of part one of Article 81 of this Code, the employer is obliged to notify the elected body of the primary trade union organization in writing no later than two months in advance. before the start of the relevant events, and if the decision to reduce the number or staff of employees may lead to mass layoffs of employees - no later than three months before the start of the relevant events. Criteria for mass layoffs are determined in industry and (or) territorial agreements.

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

The dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of the first part of Article 81 of this Code is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Article 373 of this Code.

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

When conducting certification, which may serve as a basis for the dismissal of employees in accordance with clause 3 of part one of Article 81 of this Code, to the composition of the certification commission in without fail a representative of the elected body of the corresponding primary trade union organization is included.

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

The collective agreement may establish a different procedure for the mandatory participation of the elected body of the primary trade union organization in the consideration of issues related to the termination of the employment contract at the initiative of the employer.

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

Article 83. Termination of an employment contract due to circumstances beyond the control of the parties

An employment contract is subject to termination due to the following circumstances beyond the control of the parties:

1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;

2) reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;

3) non-election to office;

4) condemnation of the employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into force;

5) recognition of the employee as completely incapable of labor activity in accordance with a medical report issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation;

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

6) death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;

7) the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation;

8) disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract;

(Clause 8 was introduced by Federal Law No. 90-FZ of June 30, 2006)

9) expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to manage vehicle, the right to bear arms, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill his obligations under an employment contract;

(Clause 9 was introduced by Federal Law No. 90-FZ of June 30, 2006)

10) termination of access to state secrets, if the work performed requires such access;

(Clause 10 was introduced by Federal Law No. 90-FZ of June 30, 2006)

11) cancellation of a court decision or cancellation (recognition as illegal) of a decision of the state labor inspectorate on the reinstatement of an employee at work;

(Clause 11 was introduced by Federal Law No. 90-FZ of June 30, 2006)

12) bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of work in the Russian Federation economic activity;

(Clause 12 was introduced by Federal Law No. 271-FZ of December 30, 2006)

13) the emergence of restrictions established by this Code, other federal law and excluding the possibility of the employee fulfilling obligations under an employment contract on engaging in certain types of labor activity.

(Clause 13 was introduced by Federal Law No. 387-FZ of December 23, 2010)

Termination of an employment contract on the grounds provided for in paragraphs 2, 8, 9, 10 or 13 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or a job corresponding to the qualifications of the employee, so and a vacant subordinate position or lower-paid job) that the employee can perform, taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 387-FZ of 23.12.2010)

An employment contract on the grounds provided for by clause 12 of part one of this article shall terminate no later than the expiration of the period established by the Government of the Russian Federation for bringing by employers engaged in certain types of economic activity in the territory of the Russian Federation the total number of employees who are foreign citizens or stateless persons into compliance with the allowable proportion of such workers.

(Part three was introduced by Federal Law No. 271-FZ of December 30, 2006)

Article 84

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

An employment contract is terminated as a result of a violation of the rules for its conclusion established by this Code or other federal law (clause 11 of part one of Article 77 of this Code), if a violation of these rules excludes the possibility of continuing work, in the following cases:

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

the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities;

conclusion of an employment contract for the performance of work that is contraindicated for this employee for health reasons in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation;

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

the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with a federal law or other regulatory legal act;

conclusion of an employment contract in violation of the decision of a judge, body, official authorized to consider cases of administrative offenses, on disqualification or other administrative punishment that precludes the employee from fulfilling obligations under an employment contract, or the conclusion of an employment contract in violation of the restrictions, prohibitions and requirements established by federal laws concerning the involvement in labor activity of citizens dismissed from the state or municipal service;

(as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 280-FZ of 25.12.2008)

the conclusion of an employment contract in violation of the restrictions on engaging in certain types of labor activity established by this Code, other federal law;

(paragraph introduced by Federal Law No. 387-FZ of December 23, 2010)

in other cases stipulated by federal laws.

(the paragraph was introduced by Federal Law No. 90-FZ of June 30, 2006)

In the cases provided for by part one of this article, the employment contract is terminated if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) that the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

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

If the violation of the rules for concluding an employment contract established by this Code or other federal law is not due to the fault of the employee, then the employee is paid a severance pay in the amount of the average monthly salary. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.

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

Article 84.1. General procedure for processing the termination of an employment contract

(Introduced by Federal Law No. 90-FZ of June 30, 2006)

The termination of the employment contract is formalized by the order (instruction) of the employer.

The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate entry is made on the order (instruction).

The day of termination of the employment contract in all cases is the last day of the employee's work, except for cases when the employee did not actually work, but, in accordance with this Code or other federal law, he retained his place of work (position).

On the day of termination of the employment contract, the employer is obliged to issue a work book to the employee and make settlements with him in accordance with Article 140 of this Code. At the written request of the employee, the employer is also obliged to provide him with duly 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 must be made in strict accordance with the wording of this Code or another federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.

In the event that on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for a work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book. The employer is also not responsible for the delay in issuing a work book in cases of mismatch last day work with the day of registration of the termination of labor relations upon dismissal of an employee on the grounds provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this Code, and upon dismissal of a woman whose employment contract was extended until the end of pregnancy in accordance with part two of Article 261 of this Code. At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

The employment contract may be terminated by the employer in the following cases:

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

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

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

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

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

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

7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments an employee, his spouse (wife) and minor children in the 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 for the loss of confidence in the employee on the part of the employer;

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

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

11) submission by the employee to the employer of false documents when concluding an employment contract;

12) is no longer valid. 13) provided for by 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.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Comment:

Meanwhile, as practice shows, the grounds for early termination of most employment contracts are precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.

The commented article provides a list of grounds for termination of an employment contract at the initiative of the employer. One of the most important legal guarantees for the exercise of the right to work is a strictly limited list of grounds for dismissal of employees at the initiative of the employer. This article provides for 13 such grounds, and paragraph 3 of this article includes two grounds, and paragraph 6 - five. As for paragraph 14 of the commented article, it is of a reference nature: termination of an employment contract can also be in cases established by both the Labor Code and other federal laws. Thus, the list of grounds is strictly defined by the current Labor Code and federal laws.

The law establishes, for each of the grounds for termination of an employment contract, its own procedure and guarantees for an employee upon dismissal. At the same time, the commented article establishes a single guarantee for employees for all cases of dismissal at the initiative of the employer listed in it (except for paragraph 1). This guarantee consists in a ban on the dismissal of an employee during the period of his temporary incapacity for work and during his vacation.

Paragraph 1 of the commented article establishes the grounds for termination of the employment contract, which are possible in the following cases: a) liquidation of the organization; b) termination of activity by an individual entrepreneur.

The concept of liquidation of an organization is contained in the Civil Code (see Article 61 of the Civil Code).

The basis for the dismissal of employees under paragraph 1 of the commented article is the decision to liquidate the organization (enterprise). About the forthcoming dismissal in connection with the liquidation of the organization (enterprise), employees must be warned by the employer personally and against receipt at least two months before the dismissal. The employer, with the written consent of the employee, has the right to terminate the employment contract with him even without a two-month notice of dismissal, with the simultaneous payment of additional compensation in the amount of two-month average earnings. Additional compensation is paid to the employee on the day of dismissal along with the payment of severance pay (see Article 180 of the Labor Code and comments to it). Unlike liquidation, the reorganization of an organization (enterprise) or a change in the ownership of property are not independent grounds for the dismissal of employees.

If the activities of a branch, representative office or other separate structural subdivision of an organization (enterprise) located in a different location from the location of the legal entity are terminated, then the termination of employment contracts with employees is carried out according to the rules provided for in cases of liquidation of the organization (enterprise). The commented norm, along with branches and representative offices, also indicates other separate structural divisions of the organization (enterprise), although from the meaning of Art. 55 of the Civil Code, it follows that representative offices and branches are the only possible separate structural divisions of a legal entity.

The basis for termination of an employment contract is the termination of the activities of not any individual who is an employer, but only an employer - an individual entrepreneur.

In accordance with Art. 20 of the Labor Code, employers - individual entrepreneurs are recognized as individuals duly registered as individual entrepreneurs, as well as private notaries, lawyers who have established law offices, other persons whose professional activity in accordance with federal laws is subject to state registration and (or) licensing, concluded an employment contract with employees. Thus, paragraph 1 of the commented article applies only in the event of termination of activity by the employer - an individual entrepreneur.

Paragraph 2 of the commented article provides for the termination of employment contracts with employees in connection with a reduction in the number or staff of employees.

The right to determine the required number or staff of employees belongs to the employer. The reduction in the number or staff of employees must be carried out subject to the guarantees provided for in Art. Art. 82, 179, 180 and 373 of the Labor Code (see the indicated articles of the Labor Code and comments to them). The reduction in the number or staff of employees will be lawful subject to the following conditions: a) the reduction in the number or staff must be real (valid); b) the priority right to be left at work is observed (see article 179 of the Labor Code and comments to it); c) the employee was warned in advance, at least two months before the dismissal, about the upcoming dismissal (see article 180 of the Labor Code and comments to it); d) in consideration this issue an elected trade union body participated (see Articles 82 and 373 of the Labor Code and comments to them); e) the employee refused the job offered to him or there was no corresponding job in the organization (see part 3 of the commented article).

The Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004, indicated to the courts that, when considering cases of reinstatement of civil servants dismissed due to the liquidation of a state body or the reduction of civil service positions, one should be guided by Art. Art. 31, 33 and 38 of the Federal Law "On the State Civil Service of the Russian Federation".

In this regard, the defendant must provide evidence confirming that after the notice of dismissal, the civil servant was offered vacant positions in this state body, and in their absence, at least one vacant position in another state body, and he refused the offered job or refused from undergoing retraining (retraining) in the manner prescribed by the legislation of the Russian Federation and the constituent entities of the Russian Federation on public service.

At the same time, the offer of a vacant position is understood as a proposal for appointment to a public position coming from an authorized official of a state body. public service, including the lower one, the duties for which a civil servant can perform, taking into account his profession, qualifications and previous position.

Evidence in cases of this category, in particular, may be copies of acts on the appointment of a civil servant to a civil service position and his dismissal from this position, a copy of the act on the liquidation of a state body or on the reduction of its staff (number), a copy of the warning about the release of a civil servant , a copy of the act (certificate) on the offer of a vacant position, the staffing of the subdivision of the state body in which the civil servant held the position, on the day the civil servant was warned about dismissal and on the day of dismissal, a certificate of the monetary content (remuneration) of the civil servant.

Termination of the employment contract due to the inconsistency of the employee with the position held or the work performed is possible due to insufficient qualifications. The employer must prove that the employee does not meet the requirements.

Non-compliance due to insufficient qualifications must be confirmed by objective data obtained as a result of the employee's attestation. For this purpose, an attestation commission is being created. The procedure for attestation of employees in a particular organization, categories of employees is determined by special regulatory legal acts, as well as provisions approved by the employer, taking into account the opinion of the representative body of employees (part 2 of the comment article). It is unacceptable to terminate an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to the short length of service, as well as on the grounds of the lack of special equipment, if according to the law it is not a mandatory condition when concluding an employment contract. The employer does not have the right to terminate the employment contract with the employee on the above grounds, if this employee has not been assessed. At the same time, the conclusions of the attestation commission on the business qualities of the employee are subject to evaluation in conjunction with other evidence in the case.

Termination of an employment contract due to the inconsistency of the employee with the position held or work performed due to health status or insufficient qualifications is allowed only if the employer is deprived of the opportunity to transfer the employee to another job with his consent (see part 3 of article 81 of the Labor Code and comments to it ). For an employee - a member of a trade union, it is necessary in accordance with Part 2 of Art. 82 of the Labor Code, a reasoned opinion of the relevant elected trade union body.

On the basis of paragraph 4 of the commented article, the employment contract is terminated only with the head of the organization, his deputies and the chief accountant. The new owner of the property, having entered into his rights, has the right to dismiss the said executives within three months. With other employees, on this basis, it is impossible to terminate the employment contract (see article 75 of the Labor Code and comments to it).

At the same time, it should be borne in mind that termination of the employment contract on the named basis is possible only in the event of a change in the owner of the property of the organization as a whole. These persons cannot be dismissed under paragraph 4 of the commented article when changing the jurisdiction (subordination) of the organization, if there has not been a change in the owner of the organization's property.

The change of ownership of the property of an organization should be understood as the transfer (transfer) of ownership of the property of an organization from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. in the event of alienation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law "On the Privatization of State and Municipal Property", Article 217 of the Civil Code); when the property owned by the organization is turned into state property (the last paragraph of clause 2 of article 235 of the Civil Code); when transferring state-owned enterprises to municipal ownership and vice versa; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.

Since, in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code, the owner of property created at the expense of contributions from the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is a company or partnership, and the participants, by virtue of par. 2 p. 2 art. 48 of the Civil Code have only binding rights in relation to such legal entities (for example, to participate in managing the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for terminating an employment contract under paragraph 4 of the commented article c by the persons listed in this norm, since in this case the partnership or company itself remains the owner of the property of the business partnership or company and there is no change in the owner of the property (see paragraphs 2 - 4, clause 32 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated 17.03. 2004 No. 2).

According to paragraph 5 of the commented article, it is allowed to dismiss an employee on the basis of repeated non-fulfillment by the employee of his labor duties without good reason and in the presence of disciplinary sanctions.

The dismissal of an employee in accordance with this paragraph will be lawful only if the following circumstances are met: a) there has been a violation of labor discipline, the employee has committed a disciplinary offense, i.e. labor offense - did not fulfill his labor duty without good reason (see article 192 of the Labor Code and comments to it); b) the employee already has a disciplinary sanction for the last year of work and at the time of the repeated violation of discipline, it has not been withdrawn and extinguished (see article 194 of the Labor Code and comments to it); c) the rules and deadlines for imposing a disciplinary sanction are observed (see Article 193 of the Labor Code and comments to it).

When considering a case on the reinstatement of a person dismissed under paragraph 5 of the commented article, or on challenging a disciplinary sanction, it should be borne in mind that the employee’s failure to perform labor duties without good reason is the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him (violation of the requirements of the law , obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.) (see paragraph 1, clause 35 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2). Dismissal on this basis is considered dismissal due to the fault of the employee, and therefore, the degree and form of guilt must be taken into account.

Paragraph 6 of the commented article provides for termination of the employment contract for a single gross violation by the employee of labor duties. Since the commented norm is applied in cases of violation of labor discipline, the terms and rules for imposing a disciplinary sanction must be observed (see Article 193 of the Labor Code and comments to it).

The gross violations of labor discipline (labor duties) include the circumstances set forth in paragraph 6 of this article, and each of them is an independent basis for terminating the employment contract. At the same time, it should be borne in mind that the list of gross violations of labor duties, which gives grounds for terminating an employment contract with an employee under paragraph 6 of the commented article, is exhaustive and is not subject to broad interpretation (see paragraph 38 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

Subparagraph "a" - absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). Dismissal on this basis can be made:

a) for absenteeism from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);

b) for finding an employee without good reason for more than four hours in a row during the working day outside the workplace;

d) for leaving work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice of early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1 article 292, part 1 article 296 of the Labor Code);

e) for independent use of days off, as well as for unauthorized leave on vacation (basic, additional). At the same time, it should be taken into account that the use of rest days by an employee is not absenteeism if the employer, in violation of the obligation stipulated by law, refused to provide them and the time for the employee to use such days did not depend on the discretion of the employer (for example, a refusal to an employee who is a donor to provide in accordance with part 4 of article 186 of the Labor Code and article 9 of the Law of the Russian Federation of 09.06.1993 N 5142-1 "On the donation of blood and its components" (as amended on 07.24.2009) the day of rest immediately after each day of blood donation and its components) (see paragraph 39 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2).

When considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to a refusal to start it, the employer is obliged to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code). If the transfer is recognized as illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job (see paragraph 40 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

If, when resolving a dispute on the reinstatement of a person dismissed for absenteeism, and collecting the average earnings for the period of forced absenteeism, it turns out that the absence from the workplace was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the salary of a reinstated employee in such cases may be recovered not from the first day of absence from work, but from the date of issuance of the dismissal order, since only from that time absenteeism is forced (see paragraph 41 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2) .

The day of dismissal is considered to be the last day of work preceding absenteeism (for example, in case of a long absenteeism or in the case when the employee started working after absenteeism).

Subparagraph "b" - the appearance at work in a state of alcoholic, narcotic or other toxic intoxication. Such a condition must be confirmed by a medical report or witness testimony. It does not matter when the employee was in a state of alcoholic, narcotic or toxic intoxication - at the beginning or at the end of the working day. The dismissal of an employee on this basis is the right of the employer, however, he is obliged to remove from work (not allow him to work) such an employee (see article 76 of the Labor Code and comments to it).

Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 explains that dismissal on this basis can also follow when the employee was in such a state during working hours not at his workplace, but on the territory of this organization or he was on the territory of the facility where on behalf of the employer, he had to perform a labor function (see paragraph 2, clause 42 of the Resolution).

Subparagraph "c" is a novel in the shopping mall. A single violation by an employee of labor duties includes the disclosure of a secret protected by law - state, commercial, official or otherwise, which became known to the employee in connection with the performance of his labor duties. Termination of the employment contract will be lawful in the presence of the following circumstances: the employment contract expressly states the obligation not to disclose the secret, as well as an indication of what specific information constituting state, commercial, official or other secrets protected by law, the employee undertakes not to disclose; this information is indeed, in accordance with the current legislation, a state, commercial, official or other secret protected by law.

The commented subparagraph is supplemented with a provision according to which an employment contract may be terminated with an employee for disclosing the personal data of another employee. The employee's personal data includes information necessary for the employer in connection with labor relations and relating to a particular employee (see article 85 of the Labor Code and comments to it). In accordance with Art. 65 of the Labor Code, such information is: personal data of the employee; information about work experience; information about education, qualifications, availability of special knowledge; health information; personalized data; information contained in documents military registration, as well as other information contained in the personal file of the employee.

Subparagraph "d" recognizes as a gross one-time misconduct the commission of theft (including small) of someone else's property, embezzlement, deliberate destruction or damage to property at the place of work, established by a court verdict that has entered into legal force or a decision of an authority authorized to apply administrative penalties. If there are no such documents (a court verdict or a decision administrative body- the police), then it is impossible to dismiss the employee on this basis.

When considering cases on the reinstatement of persons at work, the employment contract with which was terminated under sub. "d" of paragraph 6 of the commented article, the courts must take into account that on this basis employees who have committed theft (including small) of another's property, embezzlement, deliberate destruction or damage to it can be dismissed, provided that these illegal actions were committed by them at the place of work and their guilt is established by a court verdict that has entered into legal force or by a court decision, a body or an official authorized to consider cases of administrative offenses.

Any property that does not belong to this employee, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization, should be regarded as someone else's property.

The established one-month period for the application of such a disciplinary sanction is calculated from the date of entry into force of a court verdict or a decision of a judge, body, official authorized to consider cases of administrative offenses.

Subparagraph "e" - termination of the employment contract on this basis is lawful only if the violation of labor protection requirements entailed serious consequences (accident, accident) or knowingly created a real threat of serious consequences (for example, a gross violation of safety regulations could lead to accident, fire, etc.). The fact of violation by the employee of safety requirements, requirements and norms for labor protection must be established and documented (for example, in the form of an act, expert opinion, resolution federal inspector on labor protection, etc.). Violation of labor protection rules must be established by the commission on labor protection or the commissioner for labor protection, whose activities are regulated model provision on the committee (commission) for labor protection, approved by Order of the Ministry of Health and Social Development of Russia dated May 29, 2006 N 413, and Recommendations on the organization of the work of an authorized (trusted) person for labor protection trade union or labor collective, approved by the Decree of the Ministry of Labor of Russia of 04/08/1994 N 30.

Paragraph 7 of the commented article contains an additional basis for terminating an employment contract with an employee for his guilty actions, provided that he directly services monetary or commodity values (this should be specified in the content of the employment contract, its annex in the form of a job description, etc.) and that these actions give rise to a loss of confidence in him on the part of the employer. This rule was contained earlier in Art. 254 Labor Code. On this basis, an employee who directly services cash (for example, a cashier, not an accountant) or commodity values \u200b\u200b(for example, a storekeeper, forwarding driver, seller, etc.) can be dismissed. At the same time, it does not matter what type of material liability is assigned to the employee, and the employer must prove distrust of the employee with specific facts (for example, an act of shortage, etc.). Dismissal on this basis is allowed no later than one year from the date of discovery of the misconduct.

When establishing in the manner prescribed by law the fact of committing theft, bribery and other mercenary offenses, these employees can be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work (see paragraph 45 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

The norm of paragraph 8 of the commented article was also contained in Art. 254 of the Labor Code and, in essence, has not changed. An employment contract may be terminated for the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work. An immoral offense is a guilty action or inaction that violates the basic moral norms of society and contradicts the content of the educational and labor function of an educator (for example, behavior that degrades human dignity, being in a state of alcohol or drug intoxication, obscene language, etc.). An immoral offense that is incompatible with the continuation of work may be committed by an employee who performs the relevant functions both at work and at home. However, persons who work at a school, boarding school, kindergarten etc., but performing not educational, but technical duties (watchman, cook, cleaning lady, etc.). When dismissing, it is necessary to take into account the time that has elapsed since the misconduct (no later than one year), its severity and the subsequent behavior of the employee.

Paragraph 9 of the commented article applies only to a certain category of employees - the head of the organization (branch, representative office), his deputies and the chief accountant. Other employees cannot be dismissed on this basis. Dismissal under paragraph 9 of this article is possible in the event of an unreasonable decision that entailed a violation of the safety of property, its misuse or other damage to the property of the organization. It follows from this that a causal relationship must be established between an unreasonable decision and the adverse consequences that have occurred. An unreasonable decision must be specific. It is possible to recognize as unreasonable a decision that contradicts the current labor legislation, other federal laws, regulatory legal acts, as well as a decision made in excess of the powers of the employees specified in clause 9. Although one cannot ignore the fact that in each case, assess the validity or groundlessness of the decision will be the employer. Dismissal on this basis should be classified as dismissal for violation of labor discipline, therefore, the rules and terms for imposing disciplinary sanctions must be observed (see Article 193 of the Labor Code and comments to it).

Paragraph 10 of the commented article provides for the termination of the employment contract with the head of the organization (branch, representative office) and his deputies for a single gross violation of their duties. This additional ground for the dismissal of the head and his deputies refers to disciplinary dismissals (see Article 192 of the Labor Code and comments to it). Gross violation is a category of evaluative nature. According to the established practice (previously - clause 1 of article 254 of the Labor Code), gross violations include failure to fulfill important obligations for the organization, resulting in harm to the health of employees, as well as causing significant property or other damage. However, it must be borne in mind that the basis for dismissal can only be a violation of those duties that are determined for a given employee by an employment contract, agreement, his job description and other regulatory legal acts.

Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2 indicates that, based on the content of paragraph 10 of the commented article, the heads of other structural divisions of the organization and their deputies, as well as Chief Accountant organizations cannot be dismissed on this basis. However, an employment contract with such employees may be terminated for a single gross violation by them of their labor duties under paragraph 6 of this article, if the acts committed by them fall under the list of gross violations specified in subparagraph. "a" - "e" of paragraph 6 of this article, or in other cases, if it is provided for by federal laws (paragraph 4 of paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation).

Paragraph 11 of the commented article provides for the dismissal of an employee if he submits false documents or knowingly false information to the employer when concluding an employment contract, provided that this information has a significant impact on the very fact of concluding an employment contract. This is a novella in TC. However, this version of the norm without additional explanations raises many questions in practice. Each employer, in our opinion, must prove the falsification of documents by an appropriate examination (for example, forgery of a diploma, certificates, etc.). As for the information, it seems that we should only talk about those that are important for the work for which the employee is hired.

Paragraph 13 of the commented article provides for the termination of the employment contract with the head of the organization, members of the collegial executive body of the organization in cases stipulated by the employment contract. Additional grounds for termination of an employment contract are established by agreement of the parties. A similar basis was in the Labor Code. According to the established practice of applying this article, as additional grounds for dismissal, the employment contract included, for example, non-compliance with the decision general meeting shareholders, causing losses to the enterprise.

If the termination of the employment contract is made on the grounds provided for by the employment contract, but not established by law, then the order makes a reference to clause 13 of the commented article and the corresponding clause of the employment contract indicating what exactly the employee was fired for.

Paragraph 14 of the commented article is of a reference nature, according to which other additional grounds for termination of an employment contract are allowed, provided for by the Labor Code and other federal laws, for example, in accordance with subpara. 3 p. 1 art. 4 of the Federal Law of 08.03.2011 N 35-FZ "Charter on the discipline of employees of organizations operating especially radiation hazardous and nuclear hazardous production facilities and facilities in the field of atomic energy use", an employee may be dismissed for a single violation of the legislation of the Russian Federation in the field of atomic energy use. Cases of such violations are provided for in Art. 61 of the Federal Law of November 21, 1995 N 170-FZ "On the Use of Atomic Energy" (as amended on November 7, 2011).

In accordance with part 3 of the commented article, the employer may dismiss the employee if it is impossible to transfer the employee with his written consent to another job. Moreover, the transfer is possible both to a vacant position and work corresponding to the qualifications of the employee, and to a vacant lower position or a lower-paid job. At the same time, the proposed work must correspond to the state of health of the employee. As for the employment of an employee in another locality, the employer is obliged to offer the employee such work only if it is provided for by the collective agreement, agreement, labor contract.

In accordance with the new wording of the commented article, the dismissal of an employee on the grounds provided for in clauses 7 or 8 of the commented article is allowed no later than one year from the date of discovery of the misconduct by the employer, provided that the guilty actions that give rise to loss of confidence (clause 7) , or an immoral offense (clause 8) committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties. Thus, the legislator does not classify such guilty behavior of an employee as a disciplinary sanction, and, therefore, the rules of Art. 193 of the Labor Code cannot be applied. It should be borne in mind that the day the employer discovered the misconduct is the day when the employer knew or should have known that the employee committed this misconduct.

Part 6 of the commented article establishes guarantees upon termination of an employment contract at the initiative of the employer: it is not allowed to dismiss an employee at the initiative of the employer during his temporary incapacity for work (regardless of its duration), as well as during the period the employee is on vacation - annual, additional, educational, without saving wages. The exception is the liquidation of an organization or the termination of activities by an individual entrepreneur.

It seems appropriate in the commentary to this article to consider the issues addressed in the Decree of the Plenum of the RF Armed Forces of March 17, 2004 N 2 guarantees to employees upon termination of an employment contract at the initiative of the employer.

When considering a case on the reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer. In doing so, it must be borne in mind that:

a) it is not allowed to dismiss an employee (with the exception of the case of liquidation of an organization or termination of activity by an employer - an individual) during the period of his temporary incapacity for work and during his vacation (part 6 of the commented article); pregnant women (except in the event of liquidation of the organization), as well as women with children under the age of three, single mothers raising a child under the age of 14 (a disabled child - up to 18), other persons raising these children without a mother , with the exception of dismissal on the grounds provided for in paragraphs 1, 5 - 8, 10 or 11 hours 1 of Art. 81 or paragraph 2 of Art. 336 of the Labor Code (Article 261 of the Labor Code);

b) termination of an employment contract with employees under the age of 18 (except in the case of liquidation of an organization or termination of activity by an individual entrepreneur), in addition to observing the general procedure for dismissal, is allowed only with the consent of the relevant state labor inspectorate and the commission on minors and the protection of their rights (Article 269 TC);

c) dismissal of employees who are members of a trade union on the grounds provided for in paragraphs 2, 3 or 5 of part 1 of Art. 81 of the Labor Code, is carried out in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization in accordance with Art. 373 of the Labor Code (part 2 of article 82 of the Labor Code). At the same time, based on Part 2 of Art. 373 of the Labor Code, dismissal on the indicated grounds can be made without taking into account the opinion of the elected body of the primary trade union organization, if he does not submit such an opinion within seven working days from the date of receipt of the draft order and copies of documents from the employer, and also if the trade union body submits its opinion in due time, but does not motivate him, i.e. does not justify its position on the issue of dismissal of this employee;

d) representatives of employees participating in collective bargaining, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for committing a misdemeanor, for which, in accordance with the Labor Code, other federal laws dismissal from work is provided for (part 3 of article 39 of the Labor Code);

e) representatives of employees and their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (part 2 of article 405 of the Labor Code) (see Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 17, 2004 N 2).

In cases where the participation of an elected (corresponding higher elected) trade union body when considering issues related to the termination of an employment contract at the initiative of the employer is mandatory, the employer must, in particular, provide evidence that:

a) upon dismissal of an employee under paragraph 2 of the commented article (reduction in the number or staff of employees), the notification deadlines established by Part 1 of Art. 82 of the Labor Code, the elected body of the primary trade union organization on the upcoming reduction in the number or staff of employees, as well as the mandatory written form of such notification;

b) upon termination of the employment contract with the employee due to his insufficient qualifications, confirmed by the results of the certification, the certification commission during the certification, which served as the basis for the dismissal of the employee under paragraph 3 of the commented article, included a representative of the elected body of the relevant primary trade union organization (part 3 article 82 of the Labor Code);

c) in case of dismissal of an employee who is a member of a trade union, according to paragraphs 2, 3 or 5 of the commented article, the draft order, as well as copies of the documents that are the basis for making the said decision, were sent to the appropriate elected body of the primary trade union organization; the employer held additional consultations with the elected body of the primary trade union organization in cases where the elected body of the primary trade union organization expressed disagreement with the proposed dismissal of the employee; the one-month period for terminating the employment contract was observed, calculated from the day the employer received a reasoned opinion from the elected body of the primary trade union organization (during the specified period, the following are not counted: temporary disability, vacation, other cases of absence of the employee, when he retains his job (Article 373 TK)).

When considering reinstatement cases, it should be borne in mind that when implementing the guarantees provided by the Labor Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of the right, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal temporary disability at the time of his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural subdivision of the organization (not lower than the workshop and equated to it), not released from the main job, when the decision on dismissal should be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, accordingly, with the prior consent of the higher elected trade union body.

If the court establishes that the employee has abused the right, the court may refuse to satisfy his claim for reinstatement (changing the date of dismissal at the request of the employee dismissed during the period of temporary incapacity for work), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of dishonest actions on the part of the employee (see clause 27 of the Decree of the Plenum of the Armed Forces of the Russian Federation of December 17, 2004 N 2).

Early termination of the employment contract in connection with the liquidation of the enterprise (termination of activities by the employer - an individual)

Early termination of the employment contract in connection with the liquidation of the enterprise (termination of activities by the employer - individual entrepreneur) (clause 1 of part one of article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is carried out in relation to all employees.

This, in principle, distinguishes the named ground from others provided for in Article 81 of the Labor Code of the Russian Federation. Let us clarify that in the general case, the liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without transfer of powers (rights and obligations of the enterprise) in the order of succession to any other persons, undertaken in the manner prescribed by law , by decision of the body authorized to do so in accordance with the constituent documents, or by decision of the court.

It must be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for good reasons (due to illness, on vacation, etc.), and, on the other hand, , provides for the provision of appropriate guarantees and compensations to the dismissed.

The basis for initiating the procedure for dismissal of employees on the grounds provided for in paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation is the decision to liquidate the enterprise, taken in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (the body of the enterprise with appropriate powers), or by the court.

Employees must be warned by the employer about the upcoming liquidation in strict accordance with the requirements of the article of the Labor Code of the Russian Federation. Such a warning should:

be personal;

be brought to the attention of each employee in writing and against signature - no later than 2 months before the expected date of dismissal.

At the same time, with the written consent of the employee, it is allowed to dismiss him before the expiration of the specified period with the simultaneous payment of additional compensation to him in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. However, employees should be aware that they have the right to apply to the employer with relevant statements.

Obviously, the employer should inform employees about this in advance.

It should be clarified that for certain categories of employees, the notice period for the upcoming dismissal due to the liquidation of the enterprise may be reduced. For example, in accordance with Article 292 of the Labor Code of the Russian Federation, such a warning must be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and in relation to seasonal workers, this period, according to Article 296 of the Labor Code of the Russian Federation, must be at least seven days. The dismissal of an employee in connection with the liquidation of the enterprise, as in the previously considered cases, is formalized by an order (instruction) to terminate the employment contract, the contents of which are announced to the dismissed person against signature. Based on the order (instruction), other necessary documents are drawn up.

In the event of termination of employment contracts in connection with the liquidation of the enterprise, laid-off employees are paid a severance pay in the amount of their average monthly earnings in accordance with Article 178 of the Labor Code of the Russian Federation. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

At the same time, employees who have concluded an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract concluded earlier with this employee. Seasonal workers are paid this allowance in the amount of two weeks of average earnings.

Summing up the paragraph, we note that upon termination of the activities of a branch, representative office (another separate structural unit) of an enterprise located in another locality, the head organizes the termination of employment contracts with employees of the relevant structural units according to the rules provided for in cases of liquidation of the enterprise. Relevant orders are also issued on the dismissal of these workers.

Early termination of an employment contract due to a reduction in the number (staff) of employees of an enterprise (individual entrepreneur)

Let us clarify that the dismissal of an employee to reduce the number implies a decrease in the number of units in the relevant specialty (position, profession), for example, due to a decrease in the volume of work performed and the wage fund. When reducing the number, first the vacant units in this specialty are reduced, and then, if necessary, the occupied "live" workers. In turn, the dismissal of an employee to reduce staff involves the liquidation of his position. It is significant that the total number of employees in this case may not decrease, since new units can be simultaneously introduced into the staffing table.

Depending on the reasons and goals, the reduction in the number or staff of the enterprise may be more or less significant. The decision to reduce the number or staff (to carry out relevant measures) comes into force from the moment the head of the enterprise issues an order to put into effect a new staffing table (with the obligatory indication of the date of its entry into force).

However, before issuing the relevant order, the employer must organize work aimed at ensuring the legality of changes due to a reduction in the number or staff of the enterprise.

1. The absence of the employee's preferential rights to ensure that, in the conditions of reduction, the workplace (position) is retained for him. 2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the written consent of the latter to the transfer). 3. The refusal of the employee to give written consent to the transfer to another job offered to him by the employer (taking into account the state of health and qualifications of the employee). 4. Warning the employee about the upcoming dismissal in the manner prescribed by law. If the employee is a member of the trade union organization of the enterprise, then the decision to dismiss the employee on the grounds provided for in clause 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer, taking into account the reasoned opinion of the relevant trade union body in accordance with Article 373 of the Labor Code of the Russian Federation (see below). Such an opinion may be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee.

When deciding on the dismissal of an employee, the employer must, in addition, be guided by Article 179 of the Labor Code of the Russian Federation, which establishes preferential rights for certain categories of employees to leave them at work with a reduction in the number or staff.

As follows from this article, when reducing the number or staff, the priority right to remain at work is granted to "employees with higher labor productivity and qualifications." With documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to a reduction in the number or staff, the priority right to continue working is enjoyed by:

family workers who do not have other self-employed workers in their families;

employees who received a labor injury (occupational disease) during the period of work with this employer;

workers - invalids of the Great Patriotic War (combat operations for the defense of the Fatherland);

employees who improve their skills in the direction determined by the employer, without interruption from work;

employees who are spouses of military personnel (in state organizations, military units);

employees from among citizens previously dismissed from military service, as well as members of their families at work, where they entered for the first time after dismissal from military service;

workers - single mothers of military personnel who are conscripted for military service;

workers from among the persons who received or suffered radiation sickness and other diseases associated with radiation exposure (exposed to radiation exposure).

2. Bringing to the attention of the specified employees the lists of vacant positions (in person, in writing, against signature and taking into account the date of the alleged dismissal of an employee in case of disagreement with the transfer).

3. Consideration of written statements of employees on consent (disagreement) with the transfer to other positions.

4. Issuance of orders (instructions) on the transfer of employees who have expressed their consent to this, to other positions, as well as orders (instructions) on the dismissal of those employees who, for one reason or another, cannot be transferred to other positions that are not subject to reduction. In accordance with Article 178 of the Labor Code of the Russian Federation, in case of early termination of an employment contract due to a reduction in the number (staff) of an enterprise, the dismissed are paid a severance pay in the amount of the average monthly earnings. For the period of employment, they retain their average earnings, but not more than two months from the date of dismissal (including severance pay).

Early termination of the employment contract due to the inconsistency of the employee with the position (work performed) due to insufficient qualifications, confirmed by the results of certification

Let's move on to considering the procedure for early termination of an employment contract due to the inconsistency of the employee with the position held (work performed) due to insufficient qualifications, confirmed by the results of certification (clause 3 of part one of article 81 of the Labor Code of the Russian Federation).

Having received at its disposal duly executed documents confirming the fact that the level of qualification of the employee does not correspond to the work (labor function) entrusted to him in accordance with the concluded employment contract - in the general case, the minutes of the meeting of the certification commission - the employer must, as provided for by the new version of part three of Article 81 of the Labor Code RF, to offer the employee another job available to him, which the latter can perform taking into account the state of health and qualifications.

We emphasize that the documents used as justification should clearly indicate the discrepancy between the skill level of the employee and the work performed by him. The absence of proper wording in the documents does not give the employer the right to dismiss the employee on the grounds under consideration.

In the absence of such work, as well as in the absence of the written consent of the employee to the transfer, the latter is subject to dismissal on the grounds provided for in paragraph 3 of the first part of Article 81 of the Labor Code of the Russian Federation. The decision to dismiss on the specified grounds of employees - members of a trade union organization must be made by the employer after considering the reasoned opinion of the relevant trade union body, as provided for in Article 373 of the Labor Code of the Russian Federation. For this purpose, the employer sends to the relevant trade union body a draft order (instruction) on the dismissal of the employee, as well as copies of the documents that are the basis for making this decision. For its part, the trade union body is obliged to consider this issue by informing the employer in writing of its reasoned opinion within seven working days from the date of receipt of the draft order and copies of documents.

In case of disagreement of the trade union body with the proposed decision of the employer, additional consultations may be held between them within three working days, the results of which must be recorded in the minutes. The right to make a final decision after the expiration of the above terms belongs to the employer.

The decision to dismiss on the basis under consideration may be appealed by the employee (his authorized representative) to the appropriate state inspection labor (GIT). The GIT, within ten days from the date of receipt of the complaint (application), must consider the legality of the dismissal and, if it is recognized as illegal, sends the employer a binding order to reinstate the employee at work with payment for forced absenteeism. Simultaneously with consideration in the GIT, the issue of the legality of dismissal can be appealed by the employee (his authorized representative) and in court. In turn, the employer has the right to appeal to the court the order of the GIT in compliance with the procedure established in this regard.

If the trade union body agrees with the decision of the employer, and also in cases where such consent is not required, the order (instruction) on dismissal is issued by the employer after receiving from the employee in writing a refusal to transfer or on the basis of documents confirming the absence of vacant positions at the enterprise to which - subject to the foregoing - the employee could be transferred. On the basis of the order (instruction) on dismissal, other necessary documents are drawn up.

Early termination of the employment contract in connection with the change of the owner of the property of the enterprise

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with a change in the owner of the property of an enterprise (clause 4 of the first part of article 81 of the Labor Code of the Russian Federation). It should be emphasized that dismissal on this basis (at the initiative of the employer) is allowed only in relation to employees from among the managers, deputy heads and chief accountant of the enterprise.

Earlier, we mentioned Article 75 of the Labor Code of the Russian Federation, according to which, when the owner of the property of an enterprise changes, the new owner has the right to terminate the employment contract with the head of the enterprise, his deputies and the chief accountant no later than three months from the date of his ownership. At the same time, the change of the owner of the property of the enterprise does not give the new owner the right to terminate employment contracts in relation to other categories of employees of the enterprise.

Thus, if the new owner considers it necessary to terminate the employment contracts concluded earlier with the head of the enterprise, his deputies and the chief accountant, then he should do this in compliance with the following requirements:

1. An employee subject to dismissal on the grounds provided for in paragraph 4 of the first part of Article 81 of the Labor Code of the Russian Federation must be warned about the upcoming early termination of the employment contract no later than two weeks before the expected date of dismissal.

2. A notice of dismissal must be made in writing, be personal in nature and brought to the attention of the employee against signature.

3. The warning must be sent to the employee, taking into account the maximum length of time allotted to the new owner of the enterprise for deciding whether or not to dismiss the previously hired workers of the categories mentioned above.

4. The decision on the early termination of the employment contract shall enter into force regardless of whether or not the employee to be dismissed agrees with this decision of the new owner of the enterprise.

5. Upon dismissal, the employee - the former head of the enterprise (deputy head, chief accountant) is paid financial compensation in the amount of at least three monthly average earnings (Article 181 of the Labor Code of the Russian Federation), while the amount of compensation should not be deducted from the amount of money for unworked vacation days by the dismissed person (Article 137 of the Labor Code of the Russian Federation). The new owner may (but is not obliged to) offer employees who are subject to dismissal on the basis in question, another job available at the enterprise. It is up to the employee to decide whether or not to agree with this proposal, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues an appropriate order (instruction) on the dismissal of an employee. On the basis of the order (instruction) on dismissal, other necessary documents are drawn up.

The same right, however, can be used by other employees of the enterprise, and not just those listed in paragraph 4 of the first part of Article 81 of the Labor Code of the Russian Federation. However, we emphasize again that the latter situation is fundamentally different from that described in this paragraph, since the initiative for early termination of the employment contract on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation belongs to the employee, not the employer.

Early termination of the employment contract due to repeated non-fulfillment by the employee without good reason of labor duties

Now let's dwell on the early termination of the employment contract due to the employee's repeated failure to fulfill labor duties without good reason (clause 5 of part one of article 81 of the Labor Code of the Russian Federation), which - we emphasize this especially - is allowed only if this employee has a disciplinary sanction . In practice, the above means that an employee who is first noticed in non-fulfillment of labor duties without valid reasons cannot be immediately dismissed by the employer, except in cases where such non-fulfillment is associated with a gross violation by this employee of his labor duties. It goes without saying that the relevant circumstances that are significant for ensuring the legality of the early termination of an employment contract on the grounds provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation must be documented. Relevant documents may include:

duly executed order (instruction) on disciplinary punishment of the employee with a note on familiarization of the employee with its content;

documents confirming that labor duties were not fulfilled by this employee in the absence of good reasons;

other documents directly related to the circumstances under consideration (confirming that these circumstances took place).

It should also be recalled that, in accordance with Article 192 of the Labor Code of the Russian Federation, the dismissal of an employee on the prescribed grounds, in turn, is also a disciplinary sanction. The general procedure for applying disciplinary sanctions is determined by Article 193 of the Labor Code of the Russian Federation.

When dismissing an employee - a member of a trade union organization of an enterprise - on the grounds provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues an appropriate order (instruction), on the basis of which other necessary documents are drawn up.

Early termination of the employment contract in connection with a single gross violation of labor duties by the employee

absenteeism - i.e. the absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its (its) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a "point 6);

established by the commission (authorized) for labor protection violation by the employee of labor protection requirements - if the violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of their occurrence (subparagraph "e" of paragraph 6).

a medical report on the results of the examination of an employee who appeared at work in a state of alcoholic (narcotic or other toxic) intoxication;

conclusions based on the results of the investigation (in necessary cases - with the application of the materials of the investigation) of the fact of violation by the employee of labor protection requirements, which entailed grave consequences or knowingly created a real threat of such consequences.

All of the above documents must be properly completed. In addition, it is necessary to draw the attention of readers to the fact that, as in the case considered in the framework of the previous paragraph, dismissal on the grounds provided for in paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, in the implementation of the early termination procedure termination of the employment contract, the employer is obliged to adhere to the procedure for applying a disciplinary sanction, determined by Article 193 of the Labor Code of the Russian Federation.

So, despite the fact that subparagraph "a" of paragraph 6 clearly defines what should be considered absenteeism, when making a final decision to dismiss an employee on an appropriate basis, the employer should first pay attention to some other circumstances. For example, a suspension of work due to a delay in the payment of wages for more than 15 days cannot be qualified as absenteeism, provided that the employee informed the employer in writing in advance of his intention (see in this regard, Article 142 of the Labor Code of the Russian Federation) . The employee has the right to refuse to perform work (labor function) that is not stipulated by the employment contract concluded with him and, therefore, may, in this regard, be absent from the workplace on legal grounds (see in this regard, Article 60 of the Labor Code of the Russian Federation).

The fact that an employee appeared at work in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6) can be confirmed not only by a medical report, but also by a properly executed act. The employer is obliged to remove this employee from performing work (Article 76 of the Labor Code of the Russian Federation), i.e. do not allow him to the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).

In the event that the employee was not suspended from work, the responsibility for the possible consequences of the performance of work duties by him in a state of intoxication lies with the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this disappear. However, this does not deprive the employer of the right to dismiss the employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, the subsequent medical report does not confirm the fact of his intoxication, then the employer has no right to continue to refuse the employee admission to the workplace to perform the work entrusted to him in accordance with the employment contract (labor function). ).

The dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph "c" of paragraph 6) is allowed if the following circumstances occur:

1. An employment contract (either a corresponding agreement to it, or an additional contract in relation to the employment contract - for example, provided for by the Instruction on the procedure for admitting officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation of October 28, 1995 No. 1050), contains a condition on the inadmissibility of disclosure by the employee of information constituting a secret protected by law.

3. The fact that an employee disclosed relevant information - for example, personal data of another employee - is documented. The most indisputable from a legal point of view (among the grounds provided for in the subparagraphs of paragraph 6) is the early termination of an employment contract with an employee found guilty of committing at the place of work theft (including small) property of others, its embezzlement or deliberate destruction (damage) established by a court verdict that has entered into legal force or a decision of a judge, body or official authorized to apply administrative penalties (subparagraph "d" of paragraph 6). In this case, the employer is guided by documents issued in the prescribed manner by authorized bodies.

It is also necessary to draw the attention of readers to the legal subtlety regarding the choice of grounds for the dismissal of an employee. A person guilty of committing unlawful acts in relation to someone else's property at the place of work is subject to dismissal on the grounds provided for in subparagraph "d" of paragraph 6, only if the court verdict that has entered into force indicates that the employee has been sentenced to punishment that does not exclude the possibility of continuing employee of the work assigned to him in accordance with the employment contract. This circumstance must be taken into account when issuing a dismissal order and, in particular, when making appropriate entries in the work book.

And, finally, on the early termination of the employment contract on the grounds provided for in subparagraph "e" of paragraph 6. Dismissal on the specified basis of an employee who violated labor protection requirements, which had serious consequences or knowingly created a threat of such consequences, is allowed if:

1. The employee, in the prescribed manner, was familiarized with the requirements for labor protection (see in this regard, Article 225 of the Labor Code of the Russian Federation). 2. The employer has provided the employee with labor safety and conditions that meet the requirements of labor protection and hygiene. 3. Violation by the employee of these requirements really entailed grave consequences or created a real threat to their occurrence. 4. The circumstances listed above are documented - by a properly executed act on an accident at work, an expert opinion issued by an authorized body, a decision of a state inspector for labor protection, etc. The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract in connection with the commission of guilty actions by an employee directly serving monetary or commodity values

In accordance with paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract ahead of schedule in connection with the commission of guilty actions by an employee directly servicing monetary or commodity values, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. P. In general, the dismissal of an employee on the specified grounds is allowed provided that:

the fact of committing guilty acts by the employee is appropriately recorded in the documents; the commission of guilty acts gives the employer grounds for the loss of confidence in this employee.

We emphasize again that the documents appearing as evidence of the employee's guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving grounds for the loss of confidence in relation to an employee (taking into account the above), is actually more extensive than it can be. appear at first glance. Thus, the law enforcement practice of recent years indicates that as such circumstances, employers may take into account:

circumstances indicating the employee’s negligent attitude to his labor duties, which in turn gives the employee grounds for loss of confidence, including: receiving and issuing money without proper registration, storing keys to premises with material (monetary) values in an inappropriate place, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in an improper condition, making it possible to steal (loss) them, etc.;

circumstances indicating the use by the employee of the property entrusted to him for direct maintenance for personal purposes.

It should also be emphasized that, in accordance with the provision of the Labor Code under consideration, no distinction is made regarding whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. - the basis for early termination of the employment contract lies in the very fact of the commission of guilty actions by one or another employee and its corresponding (documentary) confirmation. It is also immaterial whether an agreement on full liability was previously concluded with the guilty employee or not. Finally, it does not matter whether the work, which involved the direct maintenance of material (monetary) values by the guilty worker, was the main one or the latter performed it part-time.

Summing up, we note that in order to make a decision on the dismissal of the guilty employee in connection with the loss of confidence in the employer, as a rule, the documents listed above are sufficient, i.e. such a decision may also be made in the absence of a court verdict that has entered into legal force, as provided for by subparagraph "d" of paragraph 6 (see earlier). However, in the event that the fact that an employee committed guilty actions (theft, bribery, other mercenary offenses) is established in the manner prescribed by law, the guilty person may be dismissed due to loss of confidence and if the commission of such actions is not related to the performance of work on servicing material (monetary) values.

The latest changes to Article 81 of the Labor Code were made by Federal Law No. 231-FZ of December 3, 2012 "On Amendments to Certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law "On control over the compliance of expenses of persons replacing public office, and other persons to their incomes" and, according to Federal Law No. 273-FZ "On Combating Corruption", this ground for dismissal can be applied to certain categories of civil servants. The norms of paragraph 7.1 of the first part of Article 81 apply to civil servants (Article 59.2 Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation"), employees of the Ministry of Internal Affairs (clause 4 of Article 82 of the Federal Law of November 30, 2011 No. 342-FZ "On Service in the Internal Affairs Bodies affairs of the Russian Federation and in amending certain legislative acts of the Russian Federation"), bodies of the Prosecutor's Office of the Russian Federation (Article 41.9 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation"), the Investigative Committee (Article 30.2 Federal Law of December 28, 2010 No. 403-FZ "On the Investigative Committee of the Russian Federation"), the customs authorities of the Russian Federation (Article 7.1, paragraph 10 of Article 48 Federal Law of July 21, 1997 No. 114-FZ "On Service in customs authorities Russian Federation"), employees of state-owned companies and corporations (Decree of the Government of the Russian Federation of August 21, 2012 No. 841), heads of federal state institutions (Decree of the Government of the Russian Federation of March 13, 2013 No. 208).

Early termination of an employment contract in connection with the commission by an employee performing educational functions of an immoral offense

At the same time, on the indicated grounds, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work (labor function) not related to the education of wards, may not be dismissed. Accordingly, early termination of employment contracts with employees from the administration of institutions (institutions), as well as with technical (servicing) personnel in connection with the commission of immoral misconduct by them is not allowed.

If an immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then dismissal on the grounds provided for in paragraph 8 of part one of Article 81 of the Labor Code of the Russian Federation is allowed within one year, calculated from the date when the employer became aware of the misconduct of the employee.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract in connection with the adoption of an unreasonable decision by the employee, which entailed a violation of the safety of property, its illegal use or other damage to the property of the enterprise

1. The employee, in accordance with the employment contract, is empowered to make decisions regarding the disposal of the property of the enterprise (establishing the procedure for disposing of this property) and actually made such decisions in the course of daily activities. 2. The decision taken by the employee and considered by the employer as a circumstance that makes it possible to dismiss the employee on the grounds provided for in clause 9 of the first part of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable. 3. The result of the employee's unjustified decision was a violation of the safety of the property of the enterprise, its illegal use or other damage caused to the property of the enterprise. 4. The circumstances listed above are documented. We add that between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests), a causal relationship should be clearly visible. In other words, the employee must be responsible for the decision made by him personally.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract in connection with a single gross violation by the employee - the head of the enterprise (branch, representative office) (his deputy) of his labor duties

The content of the paragraph under consideration does not define what exactly should be considered as a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list - for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice. Let us clarify that among the gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies, and giving the employer grounds for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation, at present It is customary to attribute, in particular, the following: violation of labor protection rules, violation of the rules for accounting for values, excess of official authority or use of the latter for personal (mercenary) purposes, etc.

Dismissal on the grounds provided for in paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation will be unconditionally legal if:

2. The commission by the employee of the relevant violation actually took place, and this fact is documented in the proper form. Dismissal on this basis will also be legal if the employment contract concluded with the employee specifically states that the commission of such and such actions (refraining from committing them) qualifies as a gross violation and entails the dismissal of the violator on the grounds provided for in paragraph 10 of the first part of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion in the employment contract of the relevant condition should not contradict other provisions of the Labor Code, which provide for the possibility of early termination of the employment contract with the employee - the head of the enterprise (branch, representative office) (his deputy) on other grounds.

It is necessary to draw the attention of readers to the fact that the basis we are considering gives the employer the right, on its own initiative, to terminate the employment contract ahead of schedule with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer himself decides whether to dismiss the violator or wait until another suitable opportunity presents itself for this.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract in connection with the submission by the employee to the employer of false documents at the conclusion of the employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission by an employee to the employer of false documents when concluding an employment contract (clause 11 of part one of article 81 of the Labor Code of the Russian Federation). It should be immediately clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract are defined by Article 65 of the Labor Code of the Russian Federation, and, therefore, the employer’s attempt to accuse the employee of submitting false documents, which the employer did not have the right to insist on, from a legal point of view vision will look untenable.

Thus, in the event that an employee presented a false (relatively speaking, someone else's or fake) work book or a fake passport to the employer, and this fact is appropriately documented - for example, by an act on checking a document that raises doubts, then the employer has the right to prematurely terminate the employment contract with the specified employee on the grounds provided for in paragraph 11 of the first part of Article 81 of the Labor Code of the Russian Federation.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract on the grounds provided for by the employment contract with the employee - the head (members of the collegial executive body) of the enterprise

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of the employment contract in other cases established by law

Let us briefly dwell on the consideration of the procedure for early termination of an employment contract in other cases established by law (clause 14 of the first part of article 81 of the Labor Code of the Russian Federation). Earlier, we have already touched upon certain issues related to the dismissal of employees of an enterprise on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

In this case, however, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on his own initiative, terminating the employment contract with him before the expiration of the latter. In other words, these are situations that allow early dismissal of an employee at the initiative of the employer and are directly provided for by law, with the exception of those considered earlier.

Thus, Article 33 of the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation" gives the employer the right to early terminate an employment contract with an employee - a state civil servant on the grounds. Relevant grounds may be provided for by other laws of the Russian Federation in relation to other categories of employees.

The employer issues an appropriate order (instruction) on the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Terminated at the initiative of the employer. Termination of an employment contract: we act according to the letter of the law

Commentary on Article 81 of the Labor Code of the Russian Federation

Another commentary on Art. 81 of the Labor Code of the Russian Federation

Regulations on the Labor Code of the Russian Federation

Closed list of grounds

Termination initiatives equally eligible for all categories of employees

Foundations

Terms and conditions for termination

Early termination of a fixed-term employment contract at the initiative of the employer

They want to leave of their own accord. Is it worth agreeing? (video)

When termination of an employment contract is not allowed

Payments and compensation

Article 78. Termination of an employment contract by agreement of the parties

Article 79. Termination of a fixed-term employment contract

Article 80

Article 81. Termination of an employment contract at the initiative of the employer

Article 82

Article 83. Termination of an employment contract due to circumstances beyond the control of the parties

Article 84

Article 84.1. General procedure for processing the termination of an employment contract

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