How to fire an employee: options for terminating an employment contract and the procedure for dismissal. Can I be fired - legal advice? Do they have the right to fire me? article
Can you be fired from your job if you have a minor child?
This question worries many working mothers, because now it’s not so easy to find a new place.
Employees with small children have certain labor protections that provide them with strong legal protection. However, there are a number of cases when even they are not able to protect a woman from dismissal.
In accordance with Art. 261 of the Labor Code of the Russian Federation, the reason for the legal dismissal of an employee raising a child under 18 years of age may be:
- Dissemination of secret or classified information;
- Theft, embezzlement of property belonging to the enterprise, or committing actions that led to financial losses.
It should also be noted that an employer cannot fire an employee during a period of vacation or temporary disability. The only exception is the liquidation or dissolution of the organization.
All other actions are illegal and can be appealed in court no later than 1 month from the date of dismissal (Article 392 of the Labor Code of the Russian Federation).
When initiating the dismissal of an employee, the head of the enterprise is obliged to submit documents that confirm the validity of the termination of cooperation.
Can a single mother with a minor child be laid off? Russian legislation (Article 261 of the Labor Code of the Russian Federation) prohibits “reducing” subordinates if:
- They independently raise a child under 14 years of age;
- The family has several children under 18 years of age.
If a woman with a minor child has been laid off, but another employee who does not have such benefits has retained her job, she can seek help from judicial or supervisory authorities.
Since we are talking about a violation of labor laws, the woman will not only be reinstated in her job, but will also receive a salary for the days on which she was absent.
If the layoff has not yet occurred, but the employee has already been warned about it, she can defend her rights in the labor inspectorate.
If the dismissal does take place, an appeal to the labor inspectorate will testify in favor of the victim.
In addition, the labor inspector will be obliged to provide her with full legal assistance.
When a staff reduction occurs due to the cessation of work of an enterprise, the employer is obliged to provide the dismissed employee raising a minor child with an alternative vacancy that will correspond to his qualifications and salary.
If such options are not available, the employer may offer a position with a lower salary level. If there is no such job or the person refuses the offered vacancy, the company terminates the employment contract.
At the same time, it pays the following compensation to the laid-off employee:
On a note! Sometimes, in order to retain more jobs, the enterprise establishes part-time work. But don’t be fooled – this is a forced measure that only lasts for six months.
If a woman intends to terminate the employment contract of her own free will, she must notify the employer of this within 14 days (Article 80 of the Labor Code of the Russian Federation).
By accommodating the mother, management can dismiss her without working for 2 weeks if she has minor children.
On a note! When resigning at her own request, a woman can ask that the following entry be made in her work book: “dismissed due to caring for a child under 14 years of age.”
This is a completely justified requirement, which gives the right to benefits when registering with the Employment Center.
The nuances of dismissal of women with minor children
Restrictions on dismissal of women largely depend on the age of the child - the younger he is, the greater the degree of protection she has.
For workers caring for children under 3 years of age, there are a number of guarantees.
On the basis of Article 256 of the Labor Code of the Russian Federation, their position is retained even with staff reductions and other personnel changes (the only exceptions are serious offenses or guilty actions).
In addition, such workers have the right to interrupt their vacation early, apply for part-time work and work from home while maintaining their salary (Article 256 of the Labor Code of the Russian Federation).
Children under 14 years old
Based on Art. 261 of the Labor Code of the Russian Federation, the dismissal of a mother raising a child from 3 to 14 years old is allowed only in special cases (for example, for immoral behavior).
In addition, such workers may demand a reduction in responsibilities and the establishment of a part-time work shift/week.
Mother of a disabled child
According to Art. 261 of the Labor Code of the Russian Federation, an employer does not have the right to dismiss the mother of a disabled child until he turns 18 years old.
Termination of an employment contract is possible only if the enterprise is liquidated or the woman commits serious offenses.
Can a woman with two minor children be fired??
According to the law (Article 179 of the Labor Code of the Russian Federation), an employee raising two or more children has a significant advantage over her colleagues:
- She is not subject to staff reduction even when the children are already 18 years old, but have not yet managed to get a job;
- She cannot be fired if she is the only breadwinner in the family (the father is not employed).
Single mothers
Is it possible to fire a single mother with a minor child from her job? In accordance with Article 261 of the Labor Code of the Russian Federation, she cannot be dismissed until the latter turns 14 years old.
All of the above guarantees are valid only until the child turns 18 years old.
As you can see, our state has created all the conditions so that employees with small children do not worry about unjustified loss of work and feel protected.
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Can you be fired from your job? Is there protection against dismissal?
You may be fired from work? Is there protection against illegal dismissals? How to achieve dismissals by agreement of the parties or reinstatement?
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Our labor lawyers describe five possible situations in which an employee may find himself in a time of crisis, and what mistakes he may make that lead to a violation of his rights.
Dismissal from work. Option one
Employer's actions: the management of the enterprise comes with persistent recommendations for all employees to submit an application with a request to resign at their own request. In this case, there may be threats of dismissal for absenteeism, professional unsuitability, etc.
Employee actions: panicking and believing, may be fired from work with a bad performance record that does not allow him to get a job in another place, a person goes to his superiors with a letter of resignation “of his own free will.”
As a result, there is no severance pay; there is no time to look for a new job. Earnings are lost when looking for a new job due to lack of time. For some time, sometimes quite a long time, there has been a clear lack of money in the family, which often results in family quarrels.
Lawyer's advice: do not rush to write an application, because someone is dependent on you, and there is no way you can find yourself without the means to live. If you asked to resign of their own free will, and you don’t have a penny in your “rainy day nest egg”, then do not consent to such a dismissal. To be able to safely look for a job, you can quit with enough money in reserve to last for a while. Having decided to get rid of you for a far-fetched reason, the employer risks getting into trouble in return: if you go to court, there is a very high probability that you will have to pay for forced absence, based on your average earnings.
In practice, legal proceedings are based on the fact that the initiator of termination of the employment agreement is an employee of the company when the resignation letter was written of his own free will. But if it is claimed that pressure was exerted on him and he was forced to write a statement, the person himself must provide evidence of this to the court. It will be the duty of judicial officers to verify this circumstance.
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Thus, if you feel pressure from your employer and receive various kinds of threats, try to record it on a voice recorder. Ask people who may have been present to testify to these facts at the appropriate time. Do not delete phone numbers and other contact information of former colleagues: often a person simply cannot find colleagues who witnessed forced dismissal. To challenge dismissal “at one's own request”, 30 days are allotted from the moment you receive a copy of the order and labor report.
In addition, you have the legal right, according to Article 80 of the Labor Code of Russia, to withdraw your application within the next two weeks from the time it was submitted. If you decide to withdraw your application, you should do so in writing. There must be two copies, one of which (with a mark of receipt by the employer) keep with you.
Dismissal from work. Option two
Employer's actions: the bosses offer to “rest” at their own expense, that is, you are required to write a letter of resignation without pay. Often, ready-made forms are simply handed out, where you need to indicate your data, number and sign.
Employee actions: follows the lead, at the same time hoping that “obedience” will be his protection. The majority of the team writes statements.
As a result, there is no money, you can’t find a temporary part-time job (if you find one, the pay is probably lower). Thus, by writing an application, you leave your family without a livelihood for some time.
However, “vacationers” have the legal opportunity to withdraw a written application at any time, which distinguishes him from someone who asked to resign voluntarily, and he went for it. In case of withdrawal of the application, the employer is obliged to pay wages or may fire you from your job after two months due to staff reduction and pay severance pay.
Lawyer's advice: not profitable, especially if there is no opportunity to earn extra money somewhere. At the same time, continuity of work experience has lost its relevance and does not affect pensions. It’s just that the employer really doesn’t want to pay severance pay and compensate for unused regular vacation. The law does not limit vacation time “at your own expense.” Most likely, the employer hopes that you will find another job, tired of waiting and lack of money, and write a statement “of your own free will” to get your work permit. Thus, it is not beneficial for you to write a vacation application. If you have already signed one, then write a counter letter about the refusal of leave and begin your duties.
If you were under pressure and you can prove it, you can go to court. The employer, by court decision, will have to pay you the average salary for the time you were illegally suspended from work. Contact us at Legal Rights. in labor law will help you decide on such an important step.
8-921-904-34-26 lawyer for labor disputes in St. Petersburg
Dismissal from work. Option three
Employer's actions: the probationary period ends in two weeks and then the management declares serious complaints about the performance of your duties, and the best way out is voluntary dismissal. You are told that if you refuse, you will be dismissed as having failed the test. With such a “wolf ticket” you can hardly expect to find a good job. The employer motivates his offer by his reluctance to include negative notes in your work record. And in general, your bosses treat you “wonderfully.”
Employee actions: scared to get damaged work book, you submit your resignation letter and, of course, receive the go-ahead to leave the organization.
As a result, there is no money, I need to look for a new job. One advantage that distinguishes it from a permanent employee who quit voluntarily is that the trainee in such a situation is less susceptible to stress, believing that he was unlucky with this job and will find another one. And he goes on a search, although not always successfully.
Legal advice: Article 71 of the Russian Labor Code determines that the employer must have a certain motivation for dismissing an employee who has not passed the test. In this case, the employee must receive a written warning from the employer about his dismissal on this basis. The employer must prove the need for dismissal.
If you have been unfairly dismissed or you realize that you will soon be may be fired from work, we need to act urgently! Within a month from the date of dismissal, you can apply to the judicial authorities for your reinstatement in your position, compensation for moral damage and payment of average earnings during forced absence. In the absence of violations of labor discipline, unfulfilled work, etc., the likelihood of your claim being satisfied is very high.
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Don’t be alarmed by negative entries in your employment record: everyone knows that in times of crisis an employer often breaks the law, “ asking to resign voluntarily" When settling for a new job, be able to clearly explain the problem with your dismissal.
You need to know that even with a probationary period, you have the same rights to receive severance pay as other employees: notification of dismissal no later than 60 days before it and severance pay.
If you held out and finally forced management to act within the law by dismissing you due to staff reductions, you are guaranteed income for five months. Having received a warning, you work for two months and receive a salary; when dismissing you, the company pays you severance pay at the level of average earnings. If you fail to find a job, your average earnings will remain the same for the second month after your dismissal. Register with the employment service within two weeks after dismissal; as an unemployed person, you will average earnings are paid for the third month after dismissal.
Dismissal from work. Option four
Employer's actions: management insists on dismissal by agreement parties: a crisis is at hand. As compensation - double salary. They prove to you that the offer is very profitable and is valid for a limited time. If it doesn’t happen, they promise to fire you either for absenteeism or for being unsuitable for your position.
Employee actions: signing a document on dismissal by agreement- an obvious mistake. It is clear that “if there is no fish, there is no cancer,” but the funds will run out, and what next?
As a result, having come to your senses, you regret your momentary weakness - after all, you can’t always find a decent job in 2 months. Time flies quickly, money flies even faster. And if you consider that one of the promised salaries in any case would have been for unused vacation.
Legal advice: it is difficult to challenge what is concluded according to your will. To avoid disappointments, read the package of documents before signing the agreement, ask for time to think, and consult with your loved ones.
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If you have the slightest doubt, do not rush to sign the document, find out all the nuances of the issue. If the company has a “debt” - vacation pay, any other funds, it is necessary to insist that this be stipulated separately in the agreement. Then a situation will not arise when the employer declares that everything has already been taken into account in the compensation.
Dismissal from work. Option five
Employer's actions: creates all the conditions for you to bring your own statement “on a silver platter”. One complex task follows another, with unrealistic deadlines for completion. Failure to cope will result in dismissal for non-compliance, failure to fulfill duties, etc.
Employee actions: tries to prove that there is no way to carry out the order or refuses to carry out the order, rightly believing that it is unreasonable.
The result is sad: a reprimand is issued, and after a week or two - a new task, no better than the previous one. History repeats itself and now they are showing you a draft order about your dismissal for non-compliance. Not wanting to get a bad record on your employment record, you leave “of your own free will.”
Lawyer's advice: when facing dismissal, it is better not to refuse to carry out the most bizarre tasks of your superiors. When applying to the courts, you will have to prove that the performance of the task of your superiors did not fit within the scope of your official duties. This is often difficult to do because the instructions regarding your responsibilities can be quite vague.
Which line of action should I choose?
Already fired or may be fired from work? Try to do as much as possible. For the necessary data, contact other departments, but only with a written request, in which you note the urgency of completion, so as not to miss the deadlines set by your superiors.
If the task is formulated incorrectly, do not hesitate to contact your manager for clarification of details in writing. At this time, it is worth considering ways to solve the problem. Report on the progress of work every day - write a report in duplicate. Ask your boss to sign the copy you keep; if he refuses, send the report by mail with notification. Your task is to prove that the task was not completed at the designated time due to objective reasons, and not your laziness. This way you get insurance against overlay penalties or dismissal, and if this does happen, you can go to court to resolve the dispute.
A prudent manager will not fire you under the article, because otherwise he will have to pay for your forced absences. They will try to “resolve” the situation peacefully: maybe they will make an offer or even leave you alone. Do not forget that a problem that cannot be solved is posed to force you to refuse to solve it. Then the employer will be on top, so don’t give him this chance.
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8-921-904-34-26 lawyer for labor disputes in St. Petersburg
Reinstatement
The plaintiff was fired from his job. He believes the dismissal was unfair. The requirement is to be reinstated at work and receive compensation for forced absence.
Issues of dismissal and reduction are relevant for both parties to the employment agreement. Violation of legislative norms by an employee or employer in the field of formalizing the procedure for severing employment relations may cause difficulties in the employee’s further employment, as well as his financial losses due to incomplete payments. For violation of the law, the employer may be subject to administrative or criminal liability, the consequences of which may include legal proceedings and accrued financial penalties. It is important for both parties to the agreement to know for what reason an employee can be fired from work legally?
Possible reasons for dismissal
The list of all circumstances that cause the severance of labor relations is considered in the Labor Code of the Russian Federation. An employee may be dismissed upon expiration of the agreement, by agreement between the subjects of legal relations, as a result of a transfer to another employer, as well as at the request of the employee or on the initiative of the head of the business entity due to certain reasons. Termination of an employment contract is relevant if an employee refuses to work for a transfer to another region, as well as to another workplace due to health reasons or in connection with reorganization measures in the company or force majeure circumstances.
The dismissal of an employee at the initiative of the employer is relevant if he violates the provisions of labor legislation, which excludes the possibility of further cooperation between the parties. The agreement can be terminated due to the employee’s inadequacy for the position held, as well as due to his failure to fulfill his job duties without good reason. The dismissal of an employee is formalized in case of violation of labor regulations, labor safety rules and when committing immoral acts, including the use of alcohol or drugs in the workplace. Fake documents provided to the employer during employment are grounds to consider the employment contract invalid.
Why can you get fired?
Termination of an employment contract for any reason is carried out under one or another article of the Labor Code of the Russian Federation. From a legal point of view, there is no concept of “dismissal under an article.” However, in practice, it is applicable when cooperation is terminated at the initiative of the employer due to gross violations by the employee.
How to dismiss an employee for violation of discipline
In the concept of many employers, violations of labor discipline include various actions of employees associated with their behavior. However, you cannot be fired for all offenses. Being late, not following the work and rest schedule, unscheduled breaks, talking with other employees or smoking are not considered serious violations that could cause the termination of agreements.
The head of a business entity can dismiss an employee only for:
- performing official duties while intoxicated;
- absenteeism;
- absence from work for more than four hours;
- theft of property or its embezzlement;
- disclosure of information classified as a trade secret.
Each violation must not only be identified by the head of the company, but also documented. In the absence of papers substantiating the reason for the dismissal of a negligent employee, the employer’s decision can be challenged in court. In such a situation, by a court decision, he will have to pay compensation for wages to the employee, the damage caused to him and cover the costs of record keeping.
Dismissal for being under the influence of alcohol at work
Each legislative section interpreting the reason for dismissal has hidden nuances that make it possible to challenge the decision of the head of the company. It is difficult to convict an employee of absenteeism or absence from work for a specified period of time if the employment contract does not contain information about the exact place of work and the specific time period identified as work. The employer's claims may acquire an unfounded status if the employee provides a certificate of temporary disability, the validity period of which covers the time the person is absent from the workplace.
If the head of the organization considers the employee’s actions in the area of his behavior unacceptable, for which it is impossible to fire him immediately after the violation is discovered, then he needs to establish the fact of the event and document it.
A commission created by an order for the enterprise may be involved in the procedure. Its representatives record the identified event in the form of an act. The document is the reason for requiring an explanatory note from the employee and drawing up an order to issue a warning, reprimand or reprimand. If a violation is detected again, the procedure is repeated and the employee is severely reprimanded. After committing a third offense, the employer has the right to legally dismiss the offender.
The law gives the employer the right to terminate the employment relationship with the employee unilaterally, but this right is limited. There is a list of reasons, i.e. situations in which the employer has the right to dismiss an employee (Article 81 of the Labor Code of the Russian Federation):
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism, i.e. absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift);
b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional 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 safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
13) in other cases established by law.
IMPORTANT!This list of grounds is exhaustive and cannot be expanded. Those. the employer cannot provide in local regulations additional grounds for termination of an employment contract, and they cannot be included in employment contracts.
If the employment contract provides for additional grounds for termination of the employment contract compared to the law, such conditions will be invalid. The exception is employment contracts concluded with the head of the organization and members of the collegial executive body.
The law establishes a direct ban on the dismissal of an employee at the initiative of the employer for any reason (except for the case of liquidation of the organization or termination of activities by an individual entrepreneur) during the period of temporary disability and while on vacation. Since the legislation does not indicate what specific leave we are talking about, we can conclude that the ban applies to the period the employee is on annual paid leave, as well as educational leave, parental leave, unpaid leave, etc. .
As for temporary disability, this guarantee can only be used by the employee if he has informed the employer of his disability.
Dismissal due to liquidation of an organization or termination of activities by an individual entrepreneur; dismissal due to a reduction in the number or staff of employees of an organization or individual entrepreneur
Reason for dismissal:
Liquidation of a legal entity is its termination without the transfer of rights and obligations by way of succession to other persons. The basis for dismissal in such a situation will be the decision to liquidate the legal entity by the owners (founders, shareholders). With the adoption of such a decision, the liquidation procedure begins and the employer has grounds to dismiss the employee.
The basis for dismissal due to a reduction in the number or staff of employees is the employer’s decision to reduce a staff unit or position. Please note that the employer is free to decide this issue and has the right to staff its staff at its own discretion. Therefore, the employer has the right to reduce the position held by the employee at any time. An exception is the situation that arises when the owner of the organization’s property changes, when the law establishes temporary restrictions on when the employer has the right to reduce the number of employees or staff. When the owner of an organization's property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership (Article 75 of the Labor Code of the Russian Federation).
It is also important to remember that renaming a position or reducing a position in one structural unit while simultaneously introducing a similar position in another is not a reduction.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of an organization (Article 81 of the Labor Code of the Russian Federation).
Dismissal procedure:
The law establishes the procedure that an employer must follow when dismissing an employee on the grounds in question.
Firstly, if we are talking about dismissal due to a reduction in the number or staff, before making a decision to dismiss a specific employee, the employer is obliged to make sure that the employee does not have a preferential right to remain at work. Preemption is taken into account in cases where a decision is made to eliminate one of several identical positions, and it must be decided which of the employees occupying these positions should be dismissed. At the same time, the preferential right to remain at work is given to employees with higher labor productivity and qualifications. With equal labor productivity and qualifications, preference in remaining at work is given to family members - if there are two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is their constant and main source of livelihood); persons in whose family there are no other independent workers; employees who received a work injury or occupational disease while working for this employer; disabled people of the Great Patriotic War and disabled people fighting in defense of the Fatherland; employees who improve their qualifications in the direction of the employer without interruption from work (Article 179 of the Labor Code of the Russian Federation).
Secondly, when the decision to dismiss a specific employee is made, the employer is obliged to warn the employee about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of the organization's employees personally and against signature at least two months before the dismissal (Article 180 of the Labor Code of the Russian Federation) .
Thirdly, when carrying out measures to reduce the number or staff of an organization’s employees, the employer is obliged to offer the employee another available job (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can perform taking into account his condition. health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract (Articles 81, 180 of the Labor Code of the Russian Federation).
If you have reason to believe that not all available vacancies are being offered to you, especially in a situation where the employer is simultaneously hiring for vacancies that for one reason or another were not offered to you, this fact must be recorded. Advertisements from newspapers and audio recordings of conversations with the employer are suitable. You can also ask someone you know to try to apply for a vacancy that was not offered to you, and to notarize the page of the job website on which the vacancy announcement was posted.
Fourthly, if the employee is a member of a trade union, and the matter concerns dismissal due to a reduction in numbers or staff, then the employer is obliged to request a reasoned opinion from the primary trade union organization. The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization. During the specified period, periods of temporary incapacity for work of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted (Article 373 of the Labor Code of the Russian Federation).
So, the dismissal of an employee for the reasons under consideration will be legal if:
- the employer has decided to liquidate the organization, reduce numbers or staff;
- took into account the employee’s preferential right to remain at work;
- notified the employee of the upcoming dismissal in person or against signature at least two months in advance;
- the employee refused to be transferred to the vacant positions offered to him, or there are no vacant positions;
- the employer dismisses an employee who is a member of a trade union within a month from the date of receipt of the reasoned opinion of the trade union body.
Upon termination of an employment contract due to the liquidation of the organization or reduction in the number or staff of the organization's employees, the dismissed employee is paid severance pay in the amount of average monthly earnings, and he also retains the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (with credit severance pay).
In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the employment service body, provided that within two weeks after the dismissal the employee applied to this body and was not employed by it (Article 178 of the Labor Code of the Russian Federation).
In practice, this means that upon dismissal, the employee is paid severance pay in the amount of average earnings. Within two weeks from the date of dismissal, it is strongly recommended to register with the employment authorities, which will give the employee the right to subsequently claim to receive average earnings for the third month. If, after two months from the date of dismissal, the employee is not employed, then the employer is obliged to pay him the second average salary. If the employee was registered with the employment authorities within the above period and was not employed, then, according to a decision made by the employment authority, after the third month the employer will be obliged to pay the employee the third average salary.
Please note that the employer, with the written consent of the employee, has the right to terminate the employment contract with him before the expiration of the notice period by paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice period.
In addition to the payments described above, upon dismissal, an employee has the right to receive a final payment from the employer, i.e. wages for hours worked and compensation for unused vacation.
IMPORTANT!Since dismissal on these grounds is accompanied by the provision of guarantees and compensation to the employee, most often employees are interested in whether it is possible to oblige the employer to dismiss them precisely on this basis. Unfortunately, it is impossible to oblige the employer to do this, since dismissal on this basis is the right, and not the obligation, of the employer.
Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.
Reason for dismissal:
The basis for dismissal in this situation is the conclusion of the certification commission that the employee is unsuitable for the position held.
The procedure for conducting certification is established by labor legislation or local regulations of the employer (Article 81 of the Labor Code of the Russian Federation).
When conducting certification, which may serve as a basis for the dismissal of an employee who is a member of a trade union, a representative of the elected body of the corresponding primary trade union organization must be included in the certification commission (Article 82 of the Labor Code of the Russian Federation).
Carrying out certification of employees requires the employer to have a mass of local regulations that provide for the certification procedure, qualification requirements for the positions for which employees are assessed, the availability of employee assessment protocols, etc. That is why, in practice, dismissals on this basis are quite rare, although threats of such dismissal are quite common.
Dismissal procedure:
After the employer receives the conclusion of the certification commission that the employee is unsuitable for the position held, the employer is obliged to offer the employee another available job (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his condition. health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract (Articles 81, 180 of the Labor Code of the Russian Federation).
Only if the employee refuses the offered vacancies or their absence does the employer have the right to dismiss the employee.
Payments due to an employee upon dismissal:
When dismissed on this basis, the law does not provide for the employee’s right to receive severance pay or maintain average earnings for the period of employment. Therefore, the dismissed employee has the right to receive final payment from the employer, i.e. wages for hours worked and compensation for unused vacation.
Committing disciplinary offenses (repeated or one-time gross)
Among the grounds on which an employer has the right to terminate an employment contract with an employee, there are several that can be called “disciplinary”, since they represent a form of disciplinary liability for the employee’s disciplinary offenses. These include:
- dismissal for repeated failure to fulfill job duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
- dismissal for a one-time gross violation of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
- dismissal for committing guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer (Clause 7, Part 1, Article 81 of the Labor Code of the Russian Federation);
- dismissal for an employee performing educational functions committing an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation);
- dismissal of the head of an organization (branch, representative office), his deputies or the chief accountant for making an unfounded decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (Clause 9, Part 1, Article 81 of the Labor Code of the Russian Federation);
- dismissal of the head of the organization (branch, representative office), his deputies for a single gross violation of labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation);
- dismissal of a teaching employee for repeated gross violation of the charter of an educational institution within one year (Article 81; Clause 1 of Article 336 of the Labor Code of the Russian Federation).
Dismissal on the specified grounds has a number of features, since in addition to compliance with the general dismissal procedure provided for by the Labor Code of the Russian Federation, it requires the employer to comply with the procedure for imposing a disciplinary sanction.
If the employee is a member of a trade union, then the employer is obliged to request a reasoned opinion from the primary trade union organization. The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization. During the specified period, periods of temporary incapacity for work of the employee, his stay on vacation and other periods of absence of the employee when he retains his place of work (position) are not counted (Article 373 of the Labor Code of the Russian Federation).
What do you need to know about the dismissal of an employee for repeated failure to fulfill job duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation)?
In this case, we are talking about repetition, which means that you can fire NOT FOR THE FIRST TIME, i.e. An employee cannot be dismissed for the first disciplinary violation, but for the second and subsequent ones it is possible, provided that the employee has previously been subject to disciplinary action. It should be borne in mind that in accordance with Art. 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction the employee is not subject to a new disciplinary sanction, then he is considered to have no disciplinary sanction. Those. if more than a year has passed since the imposition of the previous disciplinary sanction, it cannot be taken into account when deciding the issue of “repeatedness”.
What violations of labor duties are gross from the point of view of the law (clause 6, part 1, article 81 of the Labor Code of the Russian Federation)?
- absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;
- the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
- disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
- committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses;
- violation by an employee of labor protection requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences.
What is truancy?
If the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate the specific workplace of this employee, then in the event of a dispute arising over the issue of where the employee is obliged to be when performing his work duties, it should be assumed that a work place is a place where the employee must be or where he needs to come in connection with his work and which is directly or indirectly under the control of the employer.
There is no clear list of valid reasons in the legislation, so keep in mind that the employer, and then the court, will decide whether a particular reason for your absence from work is valid. According to the Supreme Court of the Russian Federation, dismissal on this basis can be applied, inter alia, for the unauthorized use of vacation days, as well as for the unauthorized taking of vacation (main, additional). It is necessary to take into account that the use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with rest days). 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).
IMPORTANT!Since in practice it is often difficult to determine whether going on vacation and using time off depends on the discretion of the employer or not, it is strongly recommended not to go on vacation without permission, as well as without permission, i.e. without an order from the employer, use time off.
When going to court and the court deems the dismissal illegal, the employee has the right to ask the court to reinstate him or change the wording of the grounds for dismissal to dismissal at his own request (Article 394 of the Labor Code of the Russian Federation). In addition, in cases of this category, it is advisable to demand that the employer be obliged to issue a duplicate work book, in which there would be no record of dismissal for a disciplinary offense (clause 33 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by the Resolution Government of the Russian Federation dated April 16, 2003 No. 225).
