Step-by-step procedure for dismissal for repeated non-fulfillment of labor duties. Step-by-step procedure for dismissal for non-performance of work duties

Dismissal of an employee of the enterprise due to ignoring official duties is a fairly common occurrence. The norms and rules of this procedure are provided for in Art. 81 of the Labor Code of the Russian Federation. How dismissal is carried out for failure to fulfill official duties in accordance with the labor legislation of the Russian Federation, we will describe in the article.

Basic Rules

When hiring an employee, the manager is obliged to provide a job description for review, which clearly describes the main duties that the new employee will perform in his position (Article 68 of the Labor Code of the Russian Federation). It is necessary to familiarize the new employee with his job description before signing the TD, otherwise, in case of disciplinary violations, the employer will not be able to legally impose a penalty, and even more so, dismiss the employee under the article for.

If a severe non-fulfillment of labor duties was revealed, then this is considered a violation labor discipline and may result in appropriate penalties.

The law allows dismissing an employee for this reason only in two cases:

• If ignoring official duties was noticed more than two times.
• If an employee fails to fulfill his direct obligations several times functional responsibilities for no good reason. This fact must be proven.

Punishment for non-fulfilment of labor duties

If an employee violated discipline and did not fulfill his labor duties for the first time, then the employer can only endure or sanction. However, if the neglect of duties is repeated, then the management has the right to dismiss such an employee. There are no clear instructions in the Labor Code regarding valid reasons for non-fulfillment of labor duties - they are determined by the employer in each specific case. But the manager must justify the reason for dismissal with the application of facts and relevant documents, which will be evidence of a violation of labor discipline.

Dismissal staff member by reason of ignoring their official duties should always be at the initiative of the employer. The procedure must be carried out in accordance with the law, otherwise the dismissal may be invalidated in the event of a trial.

We fire correctly

The algorithm for dismissing the violator is as follows:

1. First of all, it is necessary to collect facts documenting violations of labor discipline by the employee at the enterprise. They should be accompanied by excerpts from normative documents organizations.
2. Check the job description with which the employee was previously familiarized. Dismissal for non-fulfillment of labor duties not listed in such will be considered an illegal act.
3. Make sure that the employee is not included in the list of persons who are prohibited from being fired at the initiative of the employer. This may be a pregnant employee or a woman who has children under the age of 3 years (Article 261 of the Labor Code of the Russian Federation).
4. It is necessary to clarify the date of the violation (Article 193 of the Labor Code of the Russian Federation), because the employer can impose a penalty on an employee of the enterprise only within one month from the date of its discovery.
5. It is necessary to have an explanatory note signed by the employee, which will indicate the reasons for the violation.
6. Analyze real reasons violations of labor discipline. Perhaps the immediate supervisor of the employee or working conditions are to blame.
7. Draw up an order for dismissal due to non-fulfillment of official duties, then familiarize the employee with it and get his signature as a sign of consent.
8. Further, the personnel employee is obliged to register the order to dismiss the violator in the registration log and make an appropriate entry in the employee's work book.
9. The completed labor must be issued to the former employee on the day of his dismissal, as well as to make a full settlement with him.

Dismissing an employee due to non-fulfillment of labor duties is not easy, because. the employer can prove a disciplinary violation only if the employee is fully informed and the official documents are in perfect condition. Otherwise, the dismissed employee will be able to challenge his illegal dismissal, and the employer will be subject to administrative liability in accordance with

Guide to personnel issues. Disciplinary action. Remark, reprimand, dismissal The employer may apply disciplinary sanctions in case of non-performance or improper performance by the employee of his duties (Article 192 of the Labor Code of the Russian Federation). Responsibilities must be recorded in the work. Article: Rules for dismissal for repeated non-fulfillment of labor duties (Davydova E.V.) (“Personnel department of a state (municipal) institution”, 2015, N 7) “Personnel department of a state (municipal) institution”, 2015, N 7 Forms of documents.

Applying disciplinary sanctions to an employee

Job responsibilities of the employee and punishment for their non-fulfillment

Punishment for dereliction of duty

Improper performance of labor duties

The penalties listed in Art.

A reprimand for failure to perform duties is an effective measure of influence on violators of labor discipline. In order to establish the procedure for the performance of official functions by an employee, the employer has in its arsenal such documents as an employment contract, job description, internal labor regulations and other local regulations. In fact, for one reason or another, an employee often violates the provisions approved by the organization. Depending on the nature, severity and frequency of violations, the manager has the right to apply an appropriate disciplinary sanction. The article will consider the procedure, as well as give a sample order for a reprimand.

The procedure for applying the penalty

Rules for the application of one or another disciplinary action described in Art. 193 Labor Code of the Russian Federation, according to which any punitive measure is accompanied by the issuance of an appropriate order. By law, before classifying an action as a misdemeanour, an employer must seek an explanation from the employee who committed it. Refusal to give an explanation is fixed by drawing up an act and, according to Art. 193 of the Labor Code of the Russian Federation, cannot prevent the application of disciplinary measures. Deadline for submission explanatory note does not exceed two business days. In addition, the Labor Code provides for other terms for the application of penalties:

• no more than one month after the discovery of the violation;
• no more than six months after the commission of the violation;
• no more than two years after the discovery of misconduct based on the results of the audit by the auditor or auditor.

It is important to remember that, in accordance with the Labor Code of the Russian Federation, only one punishment can be imposed for one specific violation (Article 193 of the Labor Code of the Russian Federation).

Reprimand as a disciplinary sanction

In Art. 192 Labor Code of the Russian Federation this concept is mentioned as one of the types of punishment along with reprimand and dismissal on appropriate grounds. However, the legislative act does not give a clear definition of this term and does not explain its difference from the remark. In practice, it is generally accepted that a reprimand is assigned for a violation of moderate severity. Sometimes the heads of organizations or personnel officers operate with such a concept as a strict reprimand. This is probably done to enhance the effect of punishment on a psychological level, since. this term is not related to the Labor Code and is officially applied, for example, to employees in the armed forces of the Russian Federation.

The application of penalties, according to the law, is formalized by an order, which is submitted for signature to the employee within three working days (Article 193 of the Labor Code of the Russian Federation). The following is an example of a reprimand for improper performance of official duties.

sample order

Consequences for the worker

During the discussion of violations of discipline and types of punishment, the question inevitably arises: does a reprimand received at work have consequences? Contrary to popular belief, information about the censure cannot be recorded in the work book, which means it does not become known to another employer. This is evidenced by Art. 66 Labor Code of the Russian Federation. A reprimand with entry in a personal file at the level of documents implies, as mentioned above, the issuance of an order. In addition, the HR officer may (but is not required to) record given fact in the personal card of the offender. In fact, the presence of such a penalty may act as a factor in the subsequent dismissal. P. 5 Art. 81 of the Labor Code of the Russian Federation states that the employer has the right to terminate the employment relationship with the employee in the presence of the fact of "repeated non-fulfillment of duties by the employee, if he has a disciplinary sanction." In this case, an entry is made in the work book with a link to the above article of the Labor Code.

When the conflict between the employee and the employer enters an acute phase, one can hear a promise to issue a dismissal for the obstinate specialist under the article for failure to perform official duties. From the correctness of the preparation of personnel documents will depend on how easily the manager can cope with the task.

Basic provisions

Calculation at the initiative of the employer is one of the most complex procedures in labor legislation. It is not in vain that it contains 14 clauses listing the grounds for terminating the contract with an employee without his consent.

Dismissal of an employee for failure to perform official duties, if you follow paragraph 5 of Art. 81 of the Labor Code, is possible only if there is at least one penalty applied to the employee no later than a year ago, Art. 194 of the Labor Code of the Russian Federation. There may be more such orders in relation to a candidate for calculation, since the legislation does not oblige the employer to apply the most severe punishment immediately, but only gives him such a right, Art. 192 of the Labor Code of the Russian Federation.

Job responsibilities can be contained not only in the instructions, but also in the internal labor regulations or the regulation on labor discipline, art. 68 of the Labor Code of the Russian Federation.

What are the grounds for dismissal?

When applying for a job, each employee, even before signing an employment contract, must be familiar with the job description, art. 68 of the Labor Code of the Russian Federation. However, this does not mean that the duties of a new employee are limited only by this paper and there can be no legal claims against him on other grounds. Based on the provisions of Art. 21 of the Labor Code of the Russian Federation, the reason for dismissal under the article for failure to perform official duties, if this happens repeatedly and intentionally (clause 5 of article 81 of the Labor Code) may be:

It may seem to someone that a specialist risks being fired only if he does not adhere to the job description. This is far from true, because Labor Code obliges employees to comply with the requirements of all local acts of the company, with which he was acquainted in writing.

How and who determines that an employee is not coping with his duties?

The initiator of proceedings against an employee who neglects his work functions can be practically any member of the team. It is enough to write a report or addressed to the head, and he will be obliged to respond to it. Another question, on what the result of its consideration will depend:

• how justified the claims against the employee and whether there is evidence;
• whether the author of the note, due to his qualifications, can objectively evaluate the work of another specialist;
• what damage has been done to the company, and whether it is comparable to the previous merits and value of an individual professional;
• what caused the misconduct;
• how the head of the enterprise relates to the situation.

In practice, the assessment of the quality of the work of subordinates can be given by their immediate superiors, the quality control service, employees responsible for safety at work, or the head of the company himself.

Dismissal procedure

The very process of dismissal of an employee for non-fulfillment of official duties must take place with strict observance by the administration of certain steps:

1. Receipt of information about violations in work.
2. documenting the situation.
3. Demanding an explanation from the offender.
4. Checking the personal file for the presence of a record of outstanding collection.
5. Deciding on the degree of guilt and the severity of the consequences of the misconduct. Often this happens collectively or taking into account the opinion of a special commission or trade union (no later than a month from the moment the violation was discovered).
6. Issuing an order to choose the most severe form of punishment - dismissal.
7. Acquaintance with the order of the employee himself.
8. Carrying out the procedure for calculating, issuing personnel documentation and material payments.

Failure to comply with the dismissal procedure will entail its recognition as illegal, as well as material costs, administrative and even criminal liability of the employer.

Documentation

To ensure that the dismissal is not considered biased or unreasonable, the employer should provide an evidence base. In court or during a prosecutor's check, documentary evidence will be required:

• acts of violation of discipline;
• testimony from employees or customer complaints;
• inventory results;
• recordings from surveillance cameras;
• opinion of outside experts;
• other documents confirming the position of the management.

There is no legally fixed form of fixing non-fulfillment of duties. The main thing is that the collected papers serve as sufficient evidence of the guilt of the dismissed employee and his intentional behavior.

Getting an explanation from an employee

No matter how the misconduct of the employee looks in the eyes of his manager, it cannot be unequivocally qualified as unforgivable only on the basis of a memorandum, without explaining the reasons for such behavior. This is directly stated in article 193 of the Labor Code of the Russian Federation.

It is better to inform the employer in writing about your desire to hear the arguments of the employee. A person is given two working days to explain his behavior. Only after the expiration of the allotted time or an acted refusal to write an explanatory note, the commission or the head personally can decide on the application of disciplinary measures. It must be announced no later than one month from the date of fixing the violation or non-fulfillment of labor duties.

Even if the employee refused to provide explanations, it is better to wait two days before issuing the order. This will serve good service in court, because it will be evidence that the management gave the person time to collect his thoughts and mitigate the consequences.

Issuance of a disciplinary order

As soon as all the preparatory points are met, the personnel department can prepare an edition of the order to impose a disciplinary sanction or dismissal of an employee for failure to perform official duties (if such an offense is not the first in his career, paragraph 5 of article 81 of the Labor Code).

When signing such an order, the director must take into account the severity of the consequences of the violation, the degree of personal guilt of the employee and the circumstances of the case. Based on this, in the text of the document, instead, a remark can be announced, Art. 192 of the Labor Code of the Russian Federation.

If the situation repeats, the fact that there is any type of penalty in the specialist’s personal file threatens him with immediate settlement. In this case, the employer may refer to the systematic neglect of duties.

Download a sample order for non-performance of official duties.

Further actions

If the dismissal of an employee for failure to perform official duties was the result of the arbitrariness of the head, the most right action the employee will apply for the protection of their rights. Several bodies can help the employee at once: the labor inspectorate, the trade union, the prosecutor's office. The conclusions of these bodies can cool the anger of the authorities or serve as an argument for the court. It is important to remember that issues of illegal dismissal are allowed to be considered directly in court, bypassing other instances, Art. 391 of the Labor Code of the Russian Federation.

If the unfairly dismissed employee nevertheless decided to start with the labor inspectorate or the prosecutor's office, then he must remember the time limit for applying to the court. It is not worth delaying filing a claim, since the Labor Code of the Russian Federation allocates only a month for appealing from the date of termination of the contract or delivery of labor, art. 392 of the Labor Code of the Russian Federation.

You can demand in court both reinstatement and correction of the wording in the dismissal order. If the process of parting with the employer caused moral or physical harm, then this can be included in the claims. For persuasiveness, you can add: a doctor's opinion, bills for treatment or receipts for the purchase of medicines. It is important to remember that deterioration must be associated with management action. Bills from a beautician, plastic surgeon or dentist will not be accepted.

Dismissal, in accordance with paragraph 5 of Art. 81 of the Labor Code does not restrict the employee in the right to receive all financial payments guaranteed to him by law on the day of calculation, Art. 140 TK.

Due payments

Even if the employer dared to leave in work book a record of a "bad" article for termination employment contract, he cannot curtail the employee's rights to legally guaranteed payments:

• salary for the days and shifts worked in the current month;
• compensation for unused days all types of holidays;
• overspending of personal funds spent in the execution of instructions from the management (accountable amounts);
• additional accruals for the summarized accounting of working hours or work on weekends, as well as bonuses for overfulfillment of planned indicators or production standards, if they are established in the local acts of the enterprise.

The only thing that can be deprived of an employee is a bonus for conscientious work, if such is stated in the collective agreement or the provision on bonuses, since after reprimands there will be no reason to consider his work exemplary.

Consequences for the employee

After the threat of dismissal of an employee for failure to perform official duties was embodied in the form of an entry in the work book, the employee has two ways:

• appeal against the actions of the employer;
• Stock up on letters of recommendation from previous employers to find a new job.

If you challenge the validity of the application of paragraph 5 of Art. 81 of the Labor Code, the specialist cannot or does not want to, then it will be very difficult to find a job with such a label in the labor force. Only impeccable references from other employers, as well as the presence of thanks and encouragement in the appropriate section of the book, will help overcome prejudice.

An attempt (at the next employment) to blame the former bosses for the conflict can provoke a backlash. It is necessary to disclose details only as a last resort, when it is impossible to avoid this conversation.

Employer liability for wrongful dismissal

Unfounded and undocumented confidence in the right to dismiss employees for own will, is fraught with significant costs for the employer, as well as the personal responsibility of the manager and the enterprise. (here about in detail about what to do if you). In the worst case, a court decision in favor of the employee may result in the following problems for the employer:

• the obligation to immediately reinstate the dismissed person;
• payment for the period of forced absenteeism (since the course of the trial can be quite long, the amount of compensation will grow every day);
• possible if the judge considers the employee's arguments convincing (its size is also determined by the court and depends on the seriousness of the documentary support and the testimony of witnesses);
• an administrative penalty for the director (from a fine of up to 5 thousand rubles to suspension from employment leadership positions for up to three years for repeated misconduct, art. 5.27 of the Code of Administrative Offenses of the Russian Federation);
• the imposition of financial sanctions on legal entities. person - in this case, the amount of recovery will vary between 30-70 thousand rubles.

Most severely, the courts punish for the illegal dismissal of pregnant women and employees with young children under 3 years old. In these cases, arbitrariness threatens with criminal liability: the leader can be punished in the form of 360 hours of forced labor.

Dismissing an employee for failure to perform official duties, if there are valid grounds and documentary evidence, will not be difficult, but it will take time and attention. Perhaps the duration of this process will serve the employer well and will not allow to expel a good employee in a fit of momentary anger or due to the action of an external stimulus.

Lawyer of the Board of Legal Protection. Specializes in handling cases related to labor disputes. Defense in court, preparation of claims and other regulatory documents to regulatory authorities.

The main types of penalties that can be applied to all categories of employees (wherever they work) are enshrined in Art. 192 of the Labor Code of the Russian Federation. These include:

• comment,
• rebuke,
• dismissal.

In most cases, the employer has the right to decide for himself what kind of punishment to choose for the employee; the only exception is dismissal, since there are certain restrictions on the part of the law. An employee can be dismissed only for certain misconduct, directly listed in the law; but to announce a reprimand to an employee or make a remark is a question, the solution of which is only within the competence of the employer. He can even replace the dismissal with a reprimand if he wants to give the employee another chance.

Reprimand Rules

If the employer wants to reprimand the employee for not fulfilling his duties, then he must adhere to the following algorithm of actions:

1. Fix the fact of non-fulfillment of official duties. For example, draw up an act that would indicate that the employee was absent from the workplace for a certain period, or ask several colleagues to confirm the absence of the employee in writing.
2. Request written explanations from the employee himself. If he does not present them, it will be necessary to draw up an appropriate act.
3. Issue an order to announce a reprimand and familiarize the violator with it under signature. If the employee refuses to sign it, it will also be necessary to draw up an appropriate act.

For example, Ivanov A.A. for the first time violated the rules of the labor schedule, being absent from the workplace for 3 hours. Such a violation in labor legislation belongs to the category of non-fulfillment by an employee of his official duties. You can’t be fired for this, so the director decided to reprimand the employee, issuing it with the following order:

OOO "Start"

ORDER

on the imposition of a disciplinary sanction on an employee in the form of a reprimand

Due to the absence of Ivanov A.A., who holds the position of manager in LLC "Start", at the workplace on May 20, 2018 from 9 a.m. to 12 p.m.,

I ORDER

• reprimand A. A. Ivanov;
• familiarize Ivanov A.A. with this order within 3 days against signature.

Base:

General Director Avramenko A.G.

The employee is familiar with the order (Ivanov A. A)

«___» __________ 2018

The consequences of receiving a reprimand for an employee

The presence of a reprimand may serve as a basis for depriving the bonus, although the Regulation on bonuses, if such is valid in the company, must also be taken into account. However, they cannot cut the salary of an employee who has received a reprimand, as this contradicts the essence of the disciplinary sanction and the law.

The reprimand is valid for a year, after which the employee is considered not to have a disciplinary sanction, although the employer, if desired, can remove the penalty earlier by issuing this action by a separate order. Repeated non-fulfillment by an employee of his official duties in the presence of a valid reprimand may become the basis for the application of a more severe type of penalty - dismissal.

Thus, reprimanding an employee is the realization of the employer's right to punish him for failure to perform his duties. To apply this disciplinary sanction, you must adhere to the procedure established in the Labor Code of the Russian Federation, because otherwise the employee will have reasons to challenge its legitimacy. At the same time, the employer must remember that he has only a month from the date of discovery of the misconduct to announce a reprimand.