The procedure for dismissal at the employee's own request - reasons, sample application and calculation procedure. What are the grounds for dismissal of an employee?

Leaving work is a serious event in a person's life, since it is directly related to the problem of his livelihood. That is why the legislator exhaustively regulates the issue of dismissal of employees.

Depending on who insists on terminating the employment contract, Distinguish between dismissal at the initiative of the employee and dismissal at the initiative of the administration.

Besides The Labor Code specifies lots of grounds for dismissal of an employee, both dependent and independent parties, which include the following :

agreement of the parties. The employee and the employer may at any time agree to terminate the employment relationship. Cancellation of this agreement is again possible only with the mutual consent of the administration and the employee;

expiration employment contract. This ground applies to seasonal, temporary workers or those with whom fixed-term contract. If upon the expiration of the term of the contract, none of the parties requires its termination, then the contract is considered extended for an indefinite period;

transfer of an employee with his consent to another enterprise or transfer to an elective position;

refusal of an employee to transfer to work due to a change in essential working conditions;

conscription or admission of an employee to military service;

the entry into force of a court verdict, by which a punishment is imposed on the employee, excluding the possibility of continuing this work.

reinstatement of an employee who previously performed this work;

other.

The transfer of an enterprise from the subordination of one body to another, or a change of ownership, or reorganization (merger, accession, separation, division, transformation) does not terminate labor relations, unless there has been a reduction in the number or staff of employees.

Dismissal at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation)

Based on the principle of freedom of labor and the inalienable right of everyone to choose a place of work, an employee has the right to terminate an indefinite employment contract at any time. The only condition that the law puts forward is employee dutynotify the administration of your departure two weeks in advance. This period is necessary for the administration to find a replacement for the employee, and for the employee so that he can once again weigh the pros and cons of his decision, as well as find a new job himself. The warning must be given in in writing. After two weeks, the employee has the right to stop work, and the administration is obliged to issue him work book and do the calculation.

If the desire of the employee is caused by any valid circumstances (admission to the institute, the birth of a child, the deterioration of the psychological climate in the team, etc.), the employment contract is terminated at the time specified by the employee.

If an employee stops working before the end of two weeks, he may be fired for absenteeism. The employee has the right to withdraw the letter of resignation before the expiration of this period, if the employee is not invited to his place in the order of transfer.

If, after the expiration of the warning period, the issuance of a dismissal order was not followed, and the employee continues to work, dismissal is possible if he re-confirms his application, otherwise the employment contract is considered extended.

There are cases when the administration puts the employee in such conditions when he is forced to apply for resignation from work. If the employee begins to challenge such a dismissal in court, then the court will rule in his favor: the employee must submit a voluntary resignation application. The very reasons for such dismissal are of no particular importance.

Can employee ahead of schedule terminate fixed-term employment contract ! The law grants such a right to an employee onlywith good reason (illness, violation of labor laws by the administration, etc.). If the initiator is the employer, then he must notify in writing three days in advance.

For terminationtemporary and seasonal employment contracts the employee must also notify the administrationfor three days.

In general, it should be noted that the legislator is sympathetic to both parties to the employment contract and tries not to infringe on the interests of either side.

Dismissal at the initiative of the administration (Article 81 of the Labor Code)

It is possible only on the grounds specified in the law. Yes, this is understandable: workers must be guaranteed against any surprises. In Art. 81 of the Labor Code indicates mainly the reasons for dismissal of a personal nature, although there are also production reasons (liquidation of an enterprise, reduction in the number of employees, etc.).

Before dismissing an employee under Art. 81 of the Labor Code, the employer is obliged to fulfill a number of conditions, depending on which paragraph of this article applies.

Paragraph 1 of Art. 81 TK. Company liquidation or termination of employment by the employer - an individual. The market economy, in contrast to the administrative-command, is characterized by a special dynamism. Here the determining factor is the profit received as a result of the sale of goods and services produced. The consumer for whom they are produced has very variable needs. That is why goods and services that were previously in demand may turn out to be useless to anyone (and, accordingly, the activity of the enterprise), if the manufacturer could not look a little ahead and restructure production in advance. Of course, as a result of this, the people employed in this enterprise will suffer. They will have to be fired in connection with the liquidation of the enterprise. However, the legislator seeks to soften this blow for them, setting the followingorder layoffs:

the employer has a dutywarn on the dismissal of each person dismissed against receipt, and not less thanfor two months;

if the employee agrees, then he can be fired andwithout warning butin In this case, compensation must be paid ;

the liquidation of an enterprise is always associated with mass layoffs and therefore the legislator requires the employer 3a three months to warn the trade union committee about this;

the employer is obliged take the necessary measures to mitigate the situation and at the same time he is obliged take into account the opinion of the trade union committee;

pay employeesseverance pay at the rate ofaverage monthly earnings ;

6) earnings are saved (by decision of the employment service) andduring the third month if the employee is not employed by her within a two-week period.

As you can see, the legislator is trying very responsibly to resolve a situation that is negative for employees, although if we are talking about a favorite job, then this will be just little consolation.

Paragraph 2 of Art. 81 TK. Reducing the number or staff of employees . In a market economy, this situation is again not uncommon, since there is competition that forces the enterprise to constantly reorganize. Often this reason is used to reduce the number of employees and free from excess labor. Legal practice has significantly expanded the cases of dismissal. paragraph 2 of Art. 81 TK. This includes the abolition of one or more staff positions, and a decrease in the volume of work, and a decrease in the wage fund (since employers cannot, at their discretion, reduce the wages established in the employment contract, and this automatically leads to a reduction in the number of employees), and automation of production reducing the need for labor, etc.

The dismissal will be legal if the followingterms.

Occursreal, real downsizing , not imaginary. The courts should carefully investigate this and, in particular, get acquainted with the orders to reduce staff units, the staff list, data on the reduction of the wage fund, changes in the nature of production, technology, etc. .

Dismissing this employeecaused by the interests of production, and not because he did not please someone.

Dismisseddoes not have the benefits of staying at work. The preferential right to stay at work with a reduction in staff is granted to an employee with higher labor productivity and qualifications, in a word, with the best business qualities . But if in this regard the workers are equal, then are taken into accountpersonal and family circumstances :

having two or more dependents;

the absence in the family of other persons with independent earnings;

labor injury or occupational disease received at this enterprise;

disability due to the Second World War and military operations;

advanced training on the job in the direction of the employer;

others (provided by the collective agreement).

4. Administrationdoes not have the opportunity to transfer to another job that matches the qualifications of the employee or if herefused to translate.

Order layoffs also regulated by law:

the employer has a duty warn on the dismissal of each person dismissed against receipt, and not less than for two months;

if the employee agrees, then he can be fired and without warning , but in this case, you need to pay compensation earnings for at least two months ;

notify the union in writing about the upcoming reduction in two months and if it is of a massive nature, then no later than for three months;

dismissal from taking into account the motivated opinion of the trade union committee;

pay employeesseverance pay at the rate ofaverage monthly earnings ;

earnings are saved (by decision of the employment service) andduring the third month if the employee is not employed by her within a two-week period.

In a word, the reduction of staff or the number of employees is an event that is not only painful psychologically, but also quite difficult legally.

Paragraph 3 of Art. 81 TK. Job inconsistency or performed work. Only two reasons can be grounds for dismissal for non-compliance:

health status;

insufficient qualification.

And although there is often nothing to reproach the employee for (there is no fault of his), you can fire him, if these circumstances prevent the continuation of work. This takes place, for example, when replacing units and the inability of the employee to master them, with a decrease in the driver's vision, a general decrease in working capacity due to age, injury and etc. Unsatisfactory performance for the indicated reasons of work may be indicated by non-fulfillment of production standards, systematic marriage in work, failure to meet deadlines and etc. However, if partial disability, even confirmed by a medical document, does not affect the quality of work, the dismissal will be illegal.

The discrepancy should prove administration, but the court always finds out whether the administration itself provided normal working conditions (serviceability of equipment, timely delivery of materials, safe and healthy working conditions, etc.). The novelty contained in the Labor Code of the Russian Federation is that the administration must now prove the fact of non-compliance publicly, that is, during certification, and not only to the court, where the dissatisfied will go to complain.

Cannot be fired for non-compliance:

in the absence of a diploma of special education, if it is not required by law, and the employee copes with the work;

the worker has been declared disabled and has been granted a pension, but he does a good job. However, if workers have special health requirements due to the nature of their work (for example, employees of catering units, children's institutions, transport, air traffic controllers, etc.), the quality factor of work performance does not matter.

Before dismissal on this basis employer will have to do the following terms :

1) insufficient qualifications revealed during the certification may serve as a basis for dismissal, provided that a member of the trade union committee was a member of the attestation commission;

2) if the qualification of the employee is insufficient, then the employer is obliged ask the opinion of the trade union committee and take it into account upon dismissal (in relation to an employee - a member of a trade union);

3)necessarysuggest a translation to another job available to the employer;

4)if the discrepancy is caused by a state of health, then the employee must be issued upon dismissalseverance pay equal to two weeks' wages.

Paragraph 4 of Art. 81 TK. Change of ownership of the organization's property . This event, which is quite ordinary in a market economy, can become crucial for the top management of the organization's personnel, because the effectiveness of the organization's work directly depends on the managers. And if the new owner is not sure that the existing composition of managers will be able to fulfill the tasks assigned to them, then he can dismiss them under paragraph 4 of Art. 81.

The legislator establishes only two restrictions or terms , under which dismissal would be legal:

dismissal is possible only in relation to a very narrow circle of subjects:the head of the organization, his deputies and the chief accountant . It is these persons in any organization who make important management decisions on which its stable and effective activities depend. Managers of lower levels, firstly, do not make such fundamental decisions for the life of the organization, and secondly, their activities are controlled and corrected by top managers;

the new owner is obliged to the said employees in case of dismissal to pay severance pay in the amount ofat least three average monthly earnings . The increased severance pay is due to the fact that it is not so easy for skilled workers to find work at all. In addition, their recruitment is sometimes lengthy, which is associated with the collection and verification by the employer of a large amount of information in relation to senior managers. Sometimes these employees have to participate in the competition for managerial positions, which, of course, delays the process of their employment.

Paragraph 5 of Art. 81 TK. Repeated non-performance without good reason job duties. This is a rather complex ground for dismissal, which can be applied if you have the following conditions :

in the actions of the employee is seenguilt in non-performance or improper performance of their labor duties (intentional or negligent);

there arefacts of violation job responsibilities, andrepeated , which allows us to speak about a system of violations and that the employee is by no means one of those who devote themselves to work and root for the enterprise. The nature of the violations can be very different: failure to comply with the orders of the administration, absence from the workplace without good reason for up to four hours, even on the territory of this enterprise, violation of technological rules, refusal to undergo a medical examination (if it is mandatory) or special training and passing exams (if this is a prerequisite for admission to work), etc.;

during the year tothe employee has already been disciplined . This confirms the viciousness of the offender and his unwillingness to improve his behavior;

since the lastmisconduct has not passed more than a month, or six months from the date of its discovery (if the misconduct is hidden), or two years - based on the results of the audit, audit of financial and economic activity or audit;

when deciding whether to dismiss on this basis, one shouldtake into account the severity of the offence. So, for example, being late for work, admitted by an accountant and a worker standing at the conveyor, will have a different degree of severity;

burden of proof (the fact of committing a violation, repeated misconduct, guilt, etc.)lies with the administration;

necessaryget a motivated opinion of the trade union committee and take it into account (if the employee is a union member).

A number of grounds for dismissal at the initiative of the administration, the legislator combined in one paragraph (p. 6) under the term " single gross violation of labor duties, although, in essence, each of them has an independent meaning. These serious violations include: absenteeism, appearance at work in a state of intoxication, disclosure of secrets protected by law, theft, violation of labor protection rules.

Subparagraph “a” of paragraph 6 of Art. 81 TK. Absenteeism . Absenteeism - unreasonable absence from work - a flagrant labor offense. It is clear that the legislator, being in this case completely on the side of the employer, makes it possible to immediately dismiss. Terms layoffs pretty simple:

it is necessary to find out the time during which the employee was absent - it must bemore than four hours in a row And it does not matter whether the employee was on the territory of the organization at that time. It is necessary to prove the fact of his absence from the workplace;

absence from the workplace must beplace without uva living reasons. The law does not define the term good reasons ". It is evaluative, i.e. determined in each specific case. But in practice, these are illness of an employee (even if he did not have a sick leave), illness of a child, transport delays, accidents (water pipe break in the apartment), natural disasters, elevator malfunction, etc. In a word, these should be circumstances that the employee could not foresee and prevent.

Dismissal is also possible with a single absenteeism, even if before that the employee did not have disciplinary actions.

With a long absenteeism, the dismissed person is excluded from the staff of the organization from the first day of absence from work and from that day is considered dismissed, even if the order is issued much later.

Subparagraph "b" p. 6 Art. 81 TK . Appearance on the work in state of intoxication. The application of this foundation, despite its apparent simplicity, is quite difficult, and the reason here is proof of intoxication. Unfortunately, not only alcohol has become widespread recently, but in addition drug and toxic intoxication, which, however, are equated to the first. The most outrageous among the facts of intoxication is, of course, the fact of drinking alcohol at work (on its territory), where often complex mechanisms operate that belong to the category of sources of increased danger.

It is possible to dismiss on this basis even if single offense and regardless of whether the worker continued to work that day or was suspended.

The evidence is:

medical opinion; ,

an act on the employee being in a state of intoxication, signed by the relevant officials and witnesses;

mere testimony;

other evidence.

Witnesses should not just point to the fact of intoxication. It is necessary to give several (at least two) arguments (symptoms) confirming intoxication: breath odor, hyperemia (redness) of the skin (primarily the face), unsteady gait, tremor (trembling) of the hands, euphoria (joyfully excited state) or, it can be, on the contrary, a depressive, aggressive state, dilated pupils, etc.

Since all the symptoms are very relative, one should strive to indicate not one of them, but several at once. And yet, often the testimony of a witness to establish the fact of intoxication is not enough, so it is necessary to strive to send the employee for a medical examination.

Subparagraph “c” of paragraph 6 of Art. 81 TK . Disclosure of legally protected secrets . Dismissal on this basis is a novelty of our labor legislation. It is quite clear that not only the state and the entrepreneur, participating in the competition, need to keep certain information secret. Any employer has his own interests, and he has the right to protect them, including by imposing a ban on the dissemination of certain types of proprietary information.

Several conditions the employer must comply, applying this basis:

disclosures must be categorizedconfidential or secret i.e. those that strangers are forbidden to know. Various kinds of secrets are protected by law: state (for example, the number of missiles in service with the state, their location, etc.), commercial (for example, Pepsi-Cola technology), official (personal data of employees), etc. It is important to have the following here: workermust know in advance that certain information is confidential . In this regard, he must be familiarized against receipt with a legal document clarifying this issue: with normative act(by law, government decree, ministry instructions), by order of the head of the organization containing a list of information constituting a secret, by the Regulations on Trade Secrets - by a corporate act in force in a particular organization, by job description, etc.;

disclosed information became an employeeknown in connection with the performance of their labor duties. So, if a journalist learned from the press about the number of undismantled submarines, or he learned about it from the lips of another person, then he can hardly be fired for disclosing state secrets. However, if he conducted a journalistic investigation into this matter, then his dismissal would be legitimate.

Subparagraph "g" of paragraph 6 of Art. 81 TK. Theft, embezzlement, destruction or damage to property. AT In principle, this is a relatively simple ground for dismissal. The following must be kept in mind here:

enough to installsingle fact theft (as well as waste, destruction or damage) of property committed by an employee;

the fact of theft can take place both in relation toproperty belonging to the organization, and other property found on its territory (for example, property rented by the employer or owned by other employees on the basis of personal ownership). Such a broad interpretation follows from the meaning of Art. 81 of the Labor Code and is justified: having allowed the theft of other property, it is likely that the perpetrator can subsequently do this in relation to property belonging to the organization. In addition, it is always a blow to the image of the organization;

theft must happen.at the place of work: on the territory of the enterprise or where the employee performs his labor functions (for example, while on a business trip);

the size of the theft does not matter for dismissal. Even petty theft (not exceeding 5 minimum wages) gives the employer the opportunity to part with the employee;

the fact of theft must be established by a court verdict that has entered into force or by a decision of the body that imposed the administrative penalty. It seems that this provision ties the hands of the employer, who is forced to spend considerable effort proving the fact of theft, but it is necessary in order to protect the employee from unlawful dismissal.

Subparagraph "e" of paragraph 6 of Art. 81 TK. Violation of labor protection rules. Several conditions dismissals for this violation are put forward by the legislator. These include:

1) employerpreviously conducted training, briefing:, internship at the workplace and testing knowledge on labor protection, and in the relevant magazinethere is a signature of the employee about this;

2)identified at leastone the fact of violation of labor protection rules;

3)installed fault (intentional or reckless) employee in non-compliance with labor protection requirements, i.e. it was established that, with due regard, the employee could do as required by the rules ( for example, to quickly get to the upper floors of a house under construction, a worker used a cargo crane, ignoring the existing elevator);

4) as a result of violation of labor protection rules there aregrave consequences (accident, accident, catastrophe) or created a real threat the occurrence of such. In our example, the worker, if he survived, then by a lucky chance, since the load on which he perched, rising up, always sways in the process of lifting it.

Paragraph 7 of Art. 81 TK. Loss of trust . This basis for dismissal also existed in the old labor legislation and, in essence, passed into the new one without changes. Here, dismissal can occur only if the following conditions :

it only applies to workersserving monetary or commodity values , i.e., those engaged in their reception, storage, transportation, distribution, etc. (sellers, cashiers, warehouse managers, etc.). It does not matter whether an agreement on full liability has been concluded with them or not. It is important that they were allowed to work with values;

must be installedguilt worker. If the valuables were lost for reasons beyond his control (natural disaster, breaking into the premises by criminals, etc.), his guilt cannot be seen;

must at least prove one specific fact seizure of valuables by this employee, measuring, underweighting buyers, overpricing, loss of valuables (for example, during an audit). It is unacceptable to dismiss on the basis of a common opinion, suspicion of an employee in the loss of values;

the duty to prove such facts and guilt lies with the administration. In relation to the employee and in this case there is a presumption of innocence.

Clause 8 of Art. 81 TK. Committing an immoral act . This is far from being a simple ground for dismissal, and, above all, because of its vagueness and obscurity. The executor must keep in mind the following:

the law does not define what is immoral act. This is an evaluative concept, i.e., determined by linking to a specific situation. However, judicial practice has already developed an approximate list of those. In a word, these are acts that undermine the opinion of others about this person as a respectable person: alcohol abuse, squabbles and fights both at work and at home, committing illegal offenses (petty theft, petty hooliganism), bestiality, etc .;

for dismissal it is enough to commitone discrediting the moral character of an offense;

this ground applies onlyto employees performing educational functions (teachers, teachers, educator of children's institutions, etc.). These workers must have, in addition to the necessary qualifications, an impeccable moral character, not only in the team, at work, but also in everyday life. The fact is that one of the main components of education is the transfer of moral norms that a person must constantly be guided in his life. But if the educator himself shows a bad example in this regard, then the whole process of education is reduced to zero;

the offense committed must beincompatible with the continuation of this work . This is decided on a case-by-case basis. For example, if a kindergarten teacher breeds gossip and squabbles in a team (he speaks badly about his colleagues, and besides, lies), then preschool children are unlikely to be aware of these facts. If the teacher, in the presence of schoolchildren, does not skimp on such an assessment in relation to his colleagues, then this may serve as a basis for dismissal under paragraph 8 of Art. 81 TK.

Paragraph 9 of Art. 81 TK. Making a decision that entailed a violation of the safety of the organization's property. This is a new ground for dismissal, and it applies to special subjects:

they can only behead of the organization (branch, representative office), his deputies and chief accountant. It is these persons who have the right to make decisions regarding the movement of property;

the solution must beunreasonable i.e. accepted without taking into account all the circumstances, hastily, a solution not worked out to the end or worked out without the involvement of specialists in this matter. This concept, even after its explanation, still remains evaluative, since it can be clarified only when tied to a specific situation. So, for example, in order to show a smaller share of the profit according to the documents, a decision is made to produce by agreement With any company transfers money to its account for supposedly performed services;

3) must take place anda negative result associated with the implementation of an unreasonable decision: loss of property, its misuse or other damage to the property of the organization;

Paragraph 10 of Art. 81 TK. One-time gross violation of labor duties . The difference between this paragraph and paragraph 6 of Art. 81 of the Labor Code, formulating the same basis, consists of:

in the subject of the offence. Here, only the top management of the organization (branch, representative office) is envisaged as such:chief and his deputies ;

in the nature of the offences. In relation to employees, a complete list of gross violations of their labor duties is provided for (mean, “a” - “e”, paragraph 6 of article 81). This cannot be done with regard to the leaders of the organization: they have to take many big decisions. At the same time, they must be guided by the law, corporate acts, their job description, labor contract, orders of the owner, etc.;

even one gross violation of labor duties gives the opportunity for dismissal. The risk of allowing another gross violation of their labor duties is too great.

Paragraph 11 of Art. 81 TK. Providing false documents or knowingly false information. Previously, this basis was not singled out separately. Now the legislator is focusing on it. It seems that his thoughts on this matter are as follows: in the market economy is dominated by private property; entrepreneurs who do not want to go bankrupt by hiring workers must be confident in them, and for this they must have a sufficient understanding of the workers. Providing false documents (information) at the conclusion of an employment contract deprives them of the opportunity to make the right personnel decision.

Paragraph 12 of Art. 81 TK. Termination of access to state secrets . Here, upon dismissal, only one condition: if the work performed requires access to state secrets.

Paragraph 13 of Art. 81 TK. The grounds for dismissal provided for in employment contract . By establishing this clause, the legislator legalized what had been the case for a long time, namely:

other grounds for dismissal may be specified in the employment contract at the initiative of the administration, in addition to those listed in the Labor Code (for example, the organization’s failure to achieve a certain level of profitability, the lack of annual product renewal, a decrease in the number of customers (product market share), and others;

this can only be done forheads of the organization or members of the collegial executive body (directorates, boards, etc.).). It is they who have special responsibilities associated with making decisions that determine the viability of the organization.

Summing up, it can be noted that dismissal at the initiative of the administration has become more complicated than in the past, because our life has become more difficult. And at the same time, the legislator is still trying to keep this process under control, not allowing the administration to self-govern in this very painful matter.

Grounds for dismissal under the Labor Code of the Russian Federation quite numerous. Our material outlines the essential features of the common grounds. After reading the article, you will get an idea of ​​​​the application of the norms of the Labor Code of the Russian Federation in relation to retiring employees in different situations.

General and special grounds for dismissal of an employee

Under the general grounds for termination of employment (dismissal) should be understood as the grounds applicable to any person who is in an employment relationship (regardless of belonging to any category of employees). All of them are indicated in Part 1 of Art. 77 of the Labor Code of the Russian Federation and are described in detail in other norms of the code.

In contrast to the general ones, there are special grounds for dismissal for certain categories of workers. Some of them are established by the Labor Code of the Russian Federation (for homeworkers, remote workers, managers), some - by other laws (for civil servants, elected workers). Thus, one of the special grounds for dismissal for civil servants is a violation of the restrictions imposed on them in connection with their status (for example, engaging in entrepreneurial activities).

Mutual consent to termination of employment

The parties to labor relations may terminate relations at any time, having come to an appropriate agreed decision (Article 78 of the Labor Code of the Russian Federation). The specific date of dismissal is determined by agreement (may even coincide with the date of signing the agreement).

Let us designate the features of dismissal in this case:

1. With a proposal to dismiss on the basis under consideration, both the employee and the employer can apply, and vice versa. The other side only agrees with the proposed option or refuses it.
2. In practice, such a dismissal is formalized by a bilateral document - an agreement. However, this is not mandatory, as there is no corresponding requirement in the law. The employee can apply to the management with a request to dismiss him by agreement of the parties, and the employer can issue an administrative document on dismissal on the terms proposed by the employee.
3. Most important condition dismissals by agreement - reaching an unequivocal agreement on the grounds for the dismissal and its term. This was pointed out by the Ministry of Labor of Russia in one of its letters - dated April 10, 2014 No. 14-2 / ​​OOG-1347.
4. Upon dismissal by mutual agreement, it is allowed to transfer compensations (severance benefits), but only those that are established in the contract - collective or labor (part 4 of article 178 of the Labor Code of the Russian Federation). However, one should take into account the prohibition on the payment of such compensation to the head of the organization (Article 349.3 of the Labor Code).
5. By agreement of the parties, it is impossible to change the terms of calculation in connection with the dismissal, since no exceptions to Art. 140 of the Labor Code does not provide.

Expiration of the employment agreement

To be dismissed for such a reason (Article 79 of the Labor Code of the Russian Federation), the employee must be notified that the contract will soon expire. This must be done in advance - at least 3 calendar days. Notification involves the preparation of a separate document (warning, notice) and handing it to the employee against receipt.

A fixed-term contract that terminates with the entry into work of the person who is replacing the current employee cannot be terminated if this event has not occurred. This means that if, for example, the term of the decree of the main employee has come to an end, but he has not appeared at work, then it is impossible to dismiss a temporary employee. A feature of this case is also that the termination of the contract due to the return to work of the main employee does not need to be warned 3 days in advance.

IMPORTANT! It is considered that a fixed-term contract continues to be valid if neither the employee nor the employer, at the time of its termination, has filed a demand for its termination. In this case, the contract becomes indefinite.

According to part 5 of Art. 81 of the Labor Code of the Russian Federation, it is impossible to dismiss employees who are on sick leave only on grounds related to the will of the employer. Dismissal due to the expiration of the employment agreement does not apply to those - it means that it is possible to dismiss an employee during sick leave on this basis.

Termination of an employment contract at the initiative of the employee

Any employee is endowed with the right to refuse labor relations of his own free will (Article 80 of the Labor Code of the Russian Federation). To do this, he needs:

1. Express your will in writing (by sending your own handwritten and signed resignation letter, filling out an employer's form, etc.).
2. Notify the management of the intention to leave work at least 2 calendar weeks before the planned date of leaving (by sending the above statement to the employer in person or by mail).

The employer should definitely pay attention to the following:

1. The application must unequivocally establish the reason for the dismissal, i.e. the employee’s desire to stop working for this employer. At the same time, no information contained in the document should indicate a forced dismissal.
2. It should be clear from the application which day will be final. So, from the wording of the form “I ask you to fire me from January 24”, it is not clear whether the 23rd or the 24th will be such a day. In this case, the employer needs to take action, that is, ask the employee to re-write the application. The exclusion of the preposition "from" before the date will bring clarity, since the number indicated in the example 24 in this case will be the day of dismissal (the final day of work).
3. If the application does not contain the date of dismissal, then it is recommended to dismiss the employee no earlier and no later last day termination notice period.
4. Up to the moment of dismissal, the worker can change his mind and withdraw his application. At the same time, the employer must stop the dismissal measures if another person has not already been invited to this position.

IMPORTANT! It is not necessary for an employee to work for 2 weeks in the sense of “actually being at the workplace” after submitting an application. He may be at this time on vacation or on sick leave. In addition, there are circumstances under which an employee does not have to notify about dismissal in advance (part 3 of article 80 of the Labor Code of the Russian Federation): a desire to retire, transfer of a spouse to work in another region, etc.

Grounds for dismissal at the initiative of the employer

TC contains quite a large number of grounds for breaking off labor relations, united by a common feature - the initiative of the employer (clause 4, part 1, article 77 of the Labor Code of the Russian Federation). Let's list them:

1. An employee who has not passed the probationary period is subject to dismissal under Part 1 of Art. 71 of the Labor Code of the Russian Federation.
2. Closure of an organization, branch (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). According to part 4 of this article, in the event of the closure of a separate subdivision, this ground must also be applied. However, we are only talking about branches (representative offices) that are located in a different area, that is, different from the territory where the parent organization is located. Otherwise, the dismissal is carried out by reduction, which means the need to offer the dismissed another job (if there are vacancies).
3. Reduction of staff, number of employees (clause 2, part 1, article 81 of the Labor Code of the Russian Federation).
4. The qualifications established by the certification commission are too low for this work (clause 3, part 1, article 81 of the Labor Code of the Russian Federation).
5. Change of the owner of the property mass of the company. Such a circumstance may be grounds for dismissal strictly defined categories of employees: managers, their deputies and chief accountants (clause 4, part 1, article 81 of the Labor Code of the Russian Federation).
6. Dismissal associated with negative actions of an employee. This should include the grounds specified in paragraphs. 5-11 hours 1 tbsp. 81 of the Labor Code: repeated and gross violations of official duties, actions that led to the loss of trust in the management, immoral acts, etc.
7. Other special grounds that may be established by an employment contract or the Labor Code of the Russian Federation for certain categories of employees (clauses 13-14, part 1, article 81 of the Labor Code of the Russian Federation).

Transfer to another company

The transfer means a change of the employer's side in the relationship and is one of the reasons for dismissal (clause 5, part 1, article 77 of the Labor Code of the Russian Federation). It can be done in the following ways:

1. By filing an employee's statement of intent to quit by way of transfer to another company. At the same time, he must attach a letter of application of the appropriate content, coming from the new employer.
2. By giving the employee a positive response to the employer's offer to transfer.

The features of this grounds for dismissal are as follows:

• the transfer requires the will of 3 subjects: the old employer, the employee and the new employer;
• the new employer does not have the right to refuse to apply for a job to an employee whom he invited in writing and who has already quit by transfer (part 4 of article 64 of the Labor Code of the Russian Federation);
• not installed for transferred employees probation(part 4 of article 70 of the Labor Code of the Russian Federation).

Entry into elected office

To start the dismissal procedure in connection with the start of elective work or entry into an elective position (clause 5, part 1, article 77 of the Labor Code), a documentary basis is required, which is usually the act of election. At the same time, unlike a transfer, dismissal does not require the consent of the employer. Moreover, he has an obligation to terminate the employment contract with the employee.

Dismissal on this basis is possible upon election to any elective position, since the law does not contain any clarifications on this matter. This may be the position of a head in a commercial structure, a deputy, a member of an elected body of a trade union, etc.

Change in company structure or subordination

Some employees (managers, their deputies and chief accountants) can be fired unilaterally by employers. This becomes possible in the event of a change in the owner of the company's property mass (clause 4, part 1, article 81 of the Labor Code of the Russian Federation). Other employees cannot be fired for this reason.

Any employee under such circumstances, on the contrary, has the right to refuse to work further, and the employer will be obliged to terminate the employment contract with him. Employees have the same right in the event of a change in the subordination of a legal entity or its reorganization.

Relevant circumstances must be confirmed:

• change of ownership - a document evidencing the transfer of rights;
• change of jurisdiction - by an act-order of the executive body;
• reorganization - an extract from the Unified State Register of Legal Entities.

The procedure for dismissal on these grounds is not regulated in detail by the Labor Code of the Russian Federation. It seems that the employer, based on the principles of labor law, warns employees in advance about upcoming changes and their consequences, and also sets a deadline for expressing their opinion on the termination of employment.

Changing the terms of an employment contract

By general rule any changes in the conditions of employment relations are possible only by mutual agreement parties (Article 72 of the Labor Code of the Russian Federation). However, there is an exception: the employer can change such conditions on his own initiative if the changes were caused by a change in organizational or technological working conditions (Article 74 of the Labor Code). An employee who does not agree with the innovations has the right to refuse to work further and may be dismissed under paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation.

IMPORTANT! An employer should not abuse the right to change working conditions and force objectionable employees to quit. In the event of a litigation, all documents substantiating the need and the actual change in working conditions will be subjected to a thorough check. In the absence of real changes, the dismissal will be declared illegal (determination of the Moscow City Court dated 07/06/2010 in case No. 33-19889).

For dismissal in this case, you must:

1. Notify the employee in advance of the upcoming changes (2 months or more in advance).
2. Fix the refusal to continue working in the new conditions (receive a statement from the employee or a corresponding note in the notification).
3. In writing, offer possible vacancies in accordance with Part 3 of Art. 74 TK.
4. Record the refusal of the employee from the proposed vacancies.

Medical contraindications to work

In Art. 73 of the Labor Code of the Russian Federation establishes the obligation of the employer to transfer the employee to another job if the latter has contraindications to the current one (must be confirmed by a medical opinion). If the legal procedure was fully followed, but the employee refused to be transferred, or suitable job was not at all, then dismiss him under paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation is possible, because this does not contradict the law. Dismissal is carried out in the interests of the employee and does not violate his rights - this is the position of the Constitutional Court of the Russian Federation (determination of July 14, 2011 No. 887-О-О).

Dismissal is carried out in the presence of one of the following grounds:

• a medical opinion issued by an authorized entity (MSEK or KEK), according to which there are contraindications to current work for a period of more than 4 months (including permanent ones);
• proposals for other available work (written), to which there are no contraindications, with an explanation of the consequences of refusing to translate;
• fixing the employee's refusal to transfer in the transfer proposal or by drawing up a separate document by the employee.

Relocation of the employer to another locality

It may happen that the employer decides to change the place of deployment, but not all workers at the same time agree to move because of work. In this case, if the employee does not wish to be transferred to another locality, he can be fired.

The Labor Code of the Russian Federation does not regulate in detail the procedure for dismissal on this basis, however, it seems that the employee’s refusal to transfer must be in writing. It should be noted that the area in the Labor Code of the Russian Federation means the territory within the boundaries of the settlement.

Circumstances beyond the control of the parties

The Labor Code of the Russian Federation has a group grounds for dismissal, united by such a sign as the absence of the will to break the employment relationship on the part of the employer or employee. All of them are listed in Part 1 of Art. 83 of the Labor Code of the Russian Federation. These include, for example, conscription into the army, the death of an employee, hostilities or serving a sentence by a court verdict.

For dismissal on some of these grounds in Part 2 of Art. 83 of the Labor Code of the Russian Federation establishes a condition on the impossibility of transferring to another job located in the given area and suitable for the employee, taking into account his skills and health indicators (including lower paid). In this case, we can talk, for example, about the termination of access to state secrets or the restoration of a person who previously worked in this position (by a court decision).

Violations of the norms of the Labor Code of the Russian Federation when hiring, leading to dismissal

The last of the general grounds for terminating relations between an employee and an employer is a violation of the procedure for their registration, if it prevents further work(clause 11, part 1, article 77 of the Labor Code of the Russian Federation). Such violations are given in Part 1 of Art. 84 of the Labor Code of the Russian Federation, although they may be established by other laws.

Such violations are:

• employment of a person deprived of the right to engage in certain activities (for example, pedagogical) by a court verdict;
• employment despite restrictions on certain categories of persons (for example, the appointment of a person with a criminal record to the position of a judge) and some other circumstances.

These violations can be committed both through the fault of the employer and the fault of the employee. Possible consequences for each of these cases, Parts 2-3 of Art. 84 of the Labor Code of the Russian Federation.

So, if the employee is to blame, he is not paid anything and no other work is offered. If the employer is guilty of violations, then he is obliged:

• make an offer to perform other work that is available;
• pay the employee upon dismissal the average salary for 1 month (severance pay).

What to do if, after dismissal, the grounds for him have disappeared?

Some of the grounds for dismissal may disappear during the process of its registration. So, an employee can last hour last day of work, change your mind about quitting and cancel your application. The signed order in this case (even if the employee is already familiar with it) will not be sufficient grounds for dismissing the employee. AT similar situations, when the employee has not yet been fired, the employer should cancel the dismissal order with another order.

The situation is much more complicated when the circumstances that caused the dismissal disappeared after the employee had already been dismissed. This can happen, for example, if the employer canceled the reduction or liquidation of the company. The Labor Code of the Russian Federation does not contain any norms for such a case. On the date of dismissal, the relevant grounds for dismissal there were, therefore, the automatic reinstatement of those laid off without their consent seems to be wrong. Restoration is possible by virtue of a court decision, an order from the labor inspectorate, or a voluntary reinstatement by the employer of such employees. The best option for the employer can be called a voluntary offer to the dismissed to be reinstated at work.

As you can see, each of the general grounds for ending an employment relationship has features that the employer must take into account when applying them. Violation of the norms of the Labor Code of the Russian Federation related to dismissal, in practice, leads to the most unfavorable consequences for the employer.

Among the main reasons for terminating the employment relationship between the employee and the employer, there are both objective and subjective. Objective, are indicated in the norms of the current labor legislation, as general legal grounds. Subjective reasons for dismissal relate, rather, to interpersonal relationships that have been formed in the course of work between the employee and his colleagues, or between him and his immediate superiors. In addition, an employee may want to change qualifications, place of residence, etc.

But the law gives us clear instructions about legal grounds to terminate the employment contract. And, regardless of personal issues, upon dismissal, one should choose the wording for the reason for dismissal, in accordance with the Labor Code. Exist as reasons to fire negligent employee on the part of the enterprise where he works, and the desire of the employee to leave his position. Consider the legal grounds for dismissal.

Termination of employment

In accordance with the norms of the law regulating labor relations, they cease to be valid in such cases:

• at the request of the employee to leave his position;
• on initiation of dismissal by the employer;
• upon reaching an agreement between the employee and the enterprise on the end of joint work;
• if a temporary fixed-term employment contract was concluded between the parties, and its term has come to an end, while neither of the parties has expressed a desire to continue it, backing it up with an appropriate action;
• when formalizing the procedure for transferring an employee to another employer at his request or consent;
• transfer of an employee to an elected position;
• if the employee refuses to continue the contract, in the event of a change in the form of ownership of the organization, or the form of management, the owner of the property;
• when changing the terms of the contract with which the subordinate does not agree;
• reasons for dismissal of an employee for medical reasons - if there is a medical ban on continuing to work in this position, and the employer simply cannot offer another suitable one, or the employee himself refused the proposed position;
• in the event of a change in the location of the enterprise due to moving to another area, from which this specialist refused;
• there are circumstances that do not depend on the will of the parties (and we will consider them below);
• in case of violation of the norms of labor legislation at the stage of concluding labor relations, if such violations exclude the possibility of further cooperation.

At the same time, in addition to the main reasons for dismissal, there are special ones regulated by laws and regulations. For example, legal regulation the dismissal of judges and prosecutors, civil servants, the military, is carried out by special laws that apply only to them. Now let's look at the main reasons in more detail.

Voluntary dismissal

This is perhaps the simplest and favorite wording for personnel officers. And such a dismissal is made easier and documents need to be collected less. And no one will challenge such a dismissal. Often, it is precisely this reason for dismissal that is an incentive for the employer to “pressure” the subordinate so that he himself writes a statement, threatening to be dismissed under the article or other negative consequences for the latter. Lawyers advise not to follow the lead, despite such threats, and to stay at their place of work, because such an employee will not receive any compensation or severance pay upon dismissal, but to find new job, is not always possible immediately.

If the desire to leave is valid and motivated, the employee must submit a statement of his intention to leave the enterprise. You just need to notify about this two weeks before the fact of dismissal. Failure to comply with this requirement, most often, turns into negative consequences for the employee, because he can be fired under the article for absenteeism, in case of unauthorized leaving the workplace.

Sometimes it is allowed to terminate the employment relationship, without the obligatory fourteen-day working off, but there must be good reasons for this. So, let's consider what are the valid reasons for dismissal for own will, in the event of which, urgent dismissal is allowed:

1. disease close relative or a child in need of care;
2. a husband or wife is sent on a long business trip outside the city (country), or even to a permanent job;
3. upon admission to study;
4. upon retirement.

Some employers take into account not only these reasons, but by agreement, they can allow you to quit the number that the employee indicates in his application. By the way, it is necessary to refer to the validity of the reasons for the early dismissal in the application, and not just verbally.

When the dismissal occurs at the initiative of the employer

The enterprise has the right to part with its employee, against his will, only in those cases that are specified in the Labor Code of the Russian Federation. There are the following reasons for the dismissal of employees at the initiative of the firm, enterprise or organization for which they work:

• The employee did not pass the probationary period, or the results of such a test seemed unsatisfactory to the management of the enterprise;
• In case of termination by the employer of his economic activity (liquidation);
• In the event of a decision to reduce the staff of the organization, which is the order of the competent governing body legal entity;
• Based on the results of an unsatisfactory certification, when there are no vacancies at the enterprise that correspond to the level and qualifications of this specialist;
• Labor relations with the head or chief accountant are terminated when the owner of the company changes;
• In case of numerous violations of labor discipline and work ethics, if the employee already has disciplinary sanctions outstanding;
• If the employee was absent from the workplace for more than four hours in a row, which is qualified by law as absenteeism;
• For distrust of an employee who committed guilty acts that led to the loss of the company's commodity-money values ​​(as a rule, these are the reasons for the dismissal of sellers);
• When appearing or staying at work in drunk;
• When committing a criminal act at the enterprise, for example, theft, embezzlement, which will be established and confirmed by the decision of the competent authorities;
• In the event of a gross violation of the rules and norms of labor protection, when this entailed or could entail grave consequences for other employees of the company or loss, destruction of the organization's property;
• When disclosing trade secrets and / or personal data of another employee;
• If the manager or chief accountant has taken an action or made an unjustified decision that caused damage to the enterprise, its property and material losses.

There are other good reasons for the dismissal of an employee who occupies a key position in the organization, for example, a single gross violation of his labor functions by the head or his deputy is enough to terminate the contract with him.

Circumstances beyond the control of the parties

The Labor Code names the reasons why an employment contract with an employee is terminated either at the initiative of the employer or the employee. Such circumstances are called, independent of the will of the parties:

1. When an illegally dismissed employee is reinstated in his previous position, as a rule, by a court decision;
2. In case of conscription into the army or alternative service;
3. When an employee holds an elective position and has not been elected for a new term;
4. When there is a court verdict against a subordinate, which excludes the possibility of further work at the enterprise;
5. With a complete loss of ability to work, which is confirmed by a medically motivated conclusion;
6. Death of an employee;
7. In case of occurrence of emergency circumstances recognized as such by the Government of the Russian Federation;
8. When applying to an employee an administrative penalty related to a ban on holding a certain position, including disqualification;
9. Termination of a license or special permit for the implementation of certain labor functions, which is issued by an authorized state authority;
10. In case of cancellation of the court decision by which the employee was reinstated.

In accordance with Art. 83 of the Code, such reasons for dismissal of an employee are not considered the will of the employer, and therefore, adhere to a special procedure, which consists in advance notification and such formalities are not needed.

Other cases and reasons for leaving an employee from his position

Separately, I would like to note the dismissal in the order of transfer. This wording of the termination of the employment contract is not very common, since the subordinate, who has found a more attractive job for him, first quits of his own free will, and only then gets a job at a new job. When translating, there are a lot of advantages for the employee himself. Firstly, time is saved for the formalities of terminating the employment contract with the previous employer, and concluding a new one. Secondly, there is no two-week work on same place work and probation on a new one.

The reasons for the dismissal of an employee who does not want to move to another locality with the employer can be characterized as the desire of the employee to quit. But not everything is so simple. If he simply writes an application, after which he stops working in the organization, benefits at the employment center will not apply to him. And with such a wording of dismissal, it is much easier to get a new job than to explain every time why you wanted to leave your previous job.

Labor law protects the interests of both parties to the employment contract. However, the worker, as his most vulnerable side, still has some advantages. So, it will be very difficult for an employer to dismiss an objectionable person, if there are no good reasons for that. The list of grounds for legally terminating an employment relationship is closed and is not subject to broad interpretation. Nevertheless, over the past century, the number of these grounds has more than quadrupled - today there are already 18 of them (we are talking about the grounds contained in Article 81 of the Labor Code of the Russian Federation). And this allows us to say that the legislator has taken into account all possible situations when it is necessary to dismiss an employee. So what are the features of the procedure for dismissing an employee at the initiative of the employer in 2016?

In what cases can an employee be fired at the request of the employer?

It is possible to dismiss an employee unilaterally only on the basis of a closed list of grounds expressly provided for by the Labor Code

The legislative basis for the forced termination of labor relations with a working citizen is the provisions of Art. 81 of the Labor Code of the Russian Federation. The norms contained in it can be conditionally divided into several groups.

Table: reasons for dismissal provided for in Art. 81 TK

Separate grounds for the dismissal of certain categories of employees can be found in other articles of the Labor Code:

1. Art. 71 gives the employer the right to fire an employee who has shown negative results during the test.
2. Art. 278 establishes several special reasons for the dismissal of the head:
   • in connection with his removal from management during bankruptcy;
   • by decision of the founder of a legal entity or its authorized body;
   • in case of non-compliance with the requirements of Art. 145 TK to the limit level of the average wages for leadership positions some state funds, institutions and enterprises;
   • on additional grounds contained in the concluded labor agreement.
3. Art. 307 makes it possible to establish additional grounds for dismissal in the contract if the employer is individual without IP status.
4. Art. 312.5 allows termination of a remote worker contract for reasons specified in the same agreement.
5. Art. 347 gives the employer the right to dismiss an employee of a religious organization on additional grounds contained in the employment agreement concluded with him.
6. Art. 336 set special grounds for completion labor activity teachers:
   • repeated gross violation of the charter of the organization;
   • the use of illegal methods of education;
   • reaching the age limit established by the Labor Code.

It should be noted that the rules for applying the rules on the dismissal of an employee at the will of the employer make it possible to use them far from in any situation, even if the reason for this exists and is officially confirmed. Yes, you can't get fired.

• an employee who is actually absent from the place of work due to illness or official leave - during the entire time of his absence;
• a woman in a position (except in cases of completion of the activities of a legal entity);
• on grounds other than those established by paragraphs 1, 5–8, 10, 11 h.1 Article. 81 and paragraph 2 of article 336 of the Labor Code:
  • mother (father or other person in the absence of the mother) of the child before three years;
  • a single mother (another person in the absence of a mother) of a minor child or a minor child with a disability;
  • the sole breadwinner of a minor disabled child or a child under three years of age, if the family has more than three minor children.

The current legislation is designed for many situations in life. It protects the interests of the employer and production process while respecting the most vulnerable categories of workers and adhering to the principles of fairness in special cases. In practice, the following non-standard situations often arise:

1. The mother or father of a large family, if she or he is the only earner in the family, cannot be forcibly dismissed, provided that the employer’s desire to terminate the contract is not due to the termination of the legal entity’s activities or the guilty actions of the employee. At the same time, the family must have at least one child under three years old and three - up to 14 years old.
2. An employer can dismiss a remote (remote) employee only in situations established by the contract concluded with him. Thus, when drawing up an agreement on hiring a remote employee, it is necessary to carefully consider all possible situations in advance and indicate all possible grounds in the agreement, even if they will duplicate the TC.
3. If an employee is absent due to illness, but a decision has been made to dismiss him for one of the reasons established by Art. 81 (except for paragraph 1 of part 1), it will be possible to dismiss him only upon returning to work.

Termination of the contract for many reasons, providing for the absence of the employee's fault (reduction, liquidation, departure of the head during a change of ownership, etc.), involves compensation payments from the employer.

Video: termination of an employment contract at the initiative of the employer

Features of the dismissal process at the request of the employer

The presence of a large number of diverse grounds for dismissing an employee at the request of the employer does not allow us to talk about a specific algorithm of actions within the procedure that would be suitable for any situation. The dismissal procedure for each individual reason, to one degree or another, has its own characteristics, among them:

1. When terminating contracts with employees due to the liquidation of a legal entity, the employer is obliged to inform each of them no later than two months before the expected date of dismissal. By mutual agreement of the parties, a citizen may leave before the appointed time with payment of compensation. monetary reward in the amount of wages proportional to the unworked period. For temporary and seasonal workers, the notice period has been reduced to two and seven days, respectively.
2. With a reduction in staffing, the process is even more complicated:
   • first of all, the employer must approve the new staffing, by determining the positions to be abolished, taking into account the rules of preferential retention at work (Article 179);
   • 2 months in advance, and in case of mass reduction - three - to warn each employee falling under it (temporary and seasonal employees are warned two and seven days in advance, respectively);
   • within the same period notify the local employment center and the trade union organization;
   • by mutual agreement of the parties, the term of dismissal may be postponed to an earlier date with payment of compensation in the same amount as under similar circumstances in the conditions of liquidation of the organization;
   • to offer the reduced persons a transfer to the available and suitable vacancies for them, in their absence - to notify the employees about this.
3. When dismissing, applied as a disciplinary sanction for a repeated misconduct or a single gross violation, one should remember the terms for applying disciplinary sanctions - no more than six months from the date of commission (with the exception of those misconduct that were discovered by the audit) and no more than a month from the date of discovery. In addition, the following procedure must be observed:
   • fixing the fact of committing a misconduct (drawing up an act, a memorandum of the head of the structural unit addressed to the management);
   • familiarization of the person who committed the offense with the act, requesting explanations from him (in writing). If necessary, fixing his refusal to perform these actions (an act is drawn up on the refusal).

In case of application of other paragraphs of Art. 81 or other articles of the Labor Code upon dismissal at the initiative of the employer, each circumstance that became the basis must be documented (by the minutes of the meeting of the attestation commission, by the decision of the collective governing body of the legal entity, by the decision of the authorized state body, etc.). The drafted document will subsequently serve as the basis for issuing a dismissal order.

Dismissal procedure and basic documents

After the paperwork is completed - the grounds for dismissal in accordance with the reason for the termination of the employment relationship, the employer proceeds directly to the issuance of the order. At this stage, the following sequence of actions should be followed:

1. Issue a dismissal order, indicating the reason with reference to the article of the Labor Code and the grounds (documents confirming the commission of a disciplinary offense, explanatory, etc.).
2. To familiarize the dismissed person with the administrative document, and in case of his refusal to draw up an act about this.
3. Issue the final invoice to the employee.
4. Enter information about the dismissal in the work book.
5. Make notes about the dismissal in the personal file and the employee's personal card.
6. Notify the interested state bodies (service bailiffs, military registration and enlistment office), if necessary.

The main documents that need to be drawn up in the dismissal procedure at the initiative of the employer:

• notification of the reduction or liquidation of the organization;
• a proposal to transfer to a vacant position corresponding to the qualifications of a citizen;
• an act on the commission of a disciplinary offense;
• dismissal order.

Photo gallery: sample paperwork

The order for dismissal for absenteeism as the basis indicates the documents fixing the fact of this misconduct. The act fixing the fact of the misconduct committed by the employee is signed by at least three employees of the organization. The order for dismissal in connection with the liquidation of a legal entity must contain a reference to paragraph 1 of part 1 article 81 of the Labor Code of the Russian Federation The dismissal order is drawn up on the T-8 form. The employer is obliged to notify employees of the liquidation of the organization and the upcoming dismissals in connection with this two months before the event occurs. in the form of a separate document, and is included in the notice of reduction The employee must be familiarized with the notice of reduction against signature

Rules for entering information into the labor

The dismissal note entered by the personnel officer in the work book must contain a link to the article of the Labor Code that served as the basis for the dismissal and a breakdown of the reasons.

Table: an example of filling out a work book

Organization of expenses and compensation: what needs to be paid and how to calculate?

Upon dismissal at the initiative of the employer, the employee must be paid on the last working day:

1. Salary for the unpaid period of work - is calculated based on the monthly salary of the employee in proportion to the number of days worked.
2. Bonuses, bonuses, allowances (if any are established by law, local documents of the employer or labor agreement and are payable taking into account the reason chosen for terminating the relationship) - are calculated in the manner prescribed by law or local legal acts.
3. Compensation for unused vacation in whole or in part - is calculated based on the average salary in proportion to the number of days not taken off.

Severance pay at the end of employment on the grounds under consideration is paid in cases established by the Labor Code:

1. In the event of a reduction in the staffing level or the termination of the activities of a legal entity - in the amount of the average monthly salary (further, in the absence of employment over the next two months, two more average monthly earnings may be paid).
2. Upon dismissal of employees holding managerial positions:
   • when changing the owner of the property of a legal entity - in the amount of a two-week average salary;
   • by decision of the owner or an authorized collective body without the fault of the head - in the amount of three months' average earnings.

Example. Leading specialist T.P. Spetsian should be dismissed due to staff reduction on August 25, 2016. According to the labor agreement, her salary is 20,000 rubles. The regulation on bonuses at the enterprise provides for the payment of a monthly bonus for high labor achievements in the amount of 5% (in the absence of outstanding and outstanding disciplinary sanctions). For the period from August 2015 to July 2016, T.P. Spetsian received an income (minus social payments) in the amount of 250,000 rubles, she was not on vacation or on sick leave. For the working year (from February 13, 2016 to February 12, 2017), T.P. Spetsian is entitled to 28 days of labor leave.

Payroll preparation:

20,000 rubles / 23 working days (total in August) x 19 working days (worked out) = 16,522 rubles.

Surcharge calculation:

20 000 rubles x 5% / 23 working days x 19 working days = 826 rubles. (the calculation is approximate, in a particular situation it will depend on the conditions determined by the document by which it is installed).

Calculation of compensation for non-vacation leave:

1. Number of days: 28 days / 12 months x 6 months (full worked out of the working year) = 14 days.
2. Average daily earnings: 250,000 rubles / 12 months / 29.3 (average number of days in a month) \u003d 711 rubles.
3. Compensation: 14 days x 711 rubles. = 9 954 rubles.

Severance pay calculation:

711 r. x 22 business days (next calendar month- September 2016) = 15,642 rubles.

Employers should strictly observe the deadlines for the payment of the final payment (on the last working day, and in the absence of an employee - no later than the next day after the presentation of the request for payment). Otherwise, you will have to incur liability in the form of a penalty fee (1/300 of the Bank of Russia rate) for each day of delay.

The rights of the employee upon termination of the employment contract at the initiative of the employer

Despite the fact that the unwillingness of an employee dismissed at the will of the employer to terminate the employment contract is unlikely to change the situation in his favor, he is still endowed with a number of rights in the procedure:

1. Accept the offer or refuse the offered vacancies if the termination of the labor agreement is expected to reduce the number of employees at the enterprise.
2. Upon agreement with the employer, receive compensation and leave earlier than two months at the end of the employment relationship due to the liquidation of the legal entity or reduction.
3. Get acquainted with the act of the committed misconduct.
4. Give explanations regarding the circumstances that led to the violation of discipline.
5. Receive assistance in protecting interests from the trade union organization.
6. Apply for protection of rights to the labor inspectorate or the prosecutor's office.
7. Appeal against the unlawful actions of the employer in the judicial authorities.
8. Receive statutory payments within three months subject to unemployment (for those laid off for reduction or liquidation).
9. Receive an employment center allowance after dismissal in the minimum amount - for those dismissed for a disciplinary offense, on a general basis - for everyone else.

Arbitrage practice

Taking into account the unilateral procedure for terminating labor relations, the category of dismissals under consideration is the leader in terms of the number of disputes. Among the most popular violations on the part of the employer, which led to a court decision to recognize the dismissal as inconsistent with the law:

1. When terminating an employment contract for absenteeism and other gross violations:
   • incorrect determination of the time of absence from the workplace;
   • unfair assessment of the reason for absenteeism;
   • non-compliance with the procedural aspects of bringing a person to responsibility (lack of an act, failure to familiarize the employee, lack of an explanatory note, etc.);
   • non-observance of the principle of proportionality of the punishment and the gravity of the offense committed;
   • dismissal of an employee who is prohibited from dismissal on this basis (for example, a pregnant woman);
   • dismissal for being at work in a state of intoxication without an appropriate medical certificate
2. When applying the grounds - a repeated disciplinary offense:
   • lack of repetition;
   • non-compliance with the deadlines for bringing to responsibility;
   • non-compliance with the procedure for bringing to responsibility;
   • inconsistency in the severity of punishment;
   • dismissal of employees not subject to dismissal on such grounds.
3. When terminating an employment agreement to reduce staffing or liquidate a legal entity:
   • absence of actual reduction or liquidation of the legal entity;
   • non-compliance with the rules of preferential abandonment of employees in case of reduction;
   • non-compliance with the procedure for dismissal (untimely warning, failure to offer employees a transfer to existing vacancies, failure to notify the employment center and the trade union organization, etc.);
   • violations related to the liquidation of a branch or representative office (in this case, employees are subject to dismissal only if the organization has completely ceased its activities in the given area);
   • refusal to pay severance pay, violation of the rules for offsetting severance pay.

Modern Russian legislation contains a large number of diverse grounds for terminating an employment relationship with an employee at the will of the employer. Among them are violations of discipline, low level the qualifications of the employee, the reasons associated with the regulation of the regular number of employees and the termination of the activities of a legal entity, the grounds that apply to certain categories of employees. Each of the bases has its own characteristics regarding the procedure for the procedure, employees payments, possible disputes. In order to avoid disputes involving authorized state bodies, and even more so entailing serious material and legal consequences, the employer should strictly follow the letter of the law when carrying out the dismissal procedure.

Consider what are the grounds for dismissing an employee if the employer is the initiator. Let us turn to the provisions of the Labor Code of the Russian Federation for answers.

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Dismissal is a procedure that must be carried out in compliance with all the rules established by law.

The Labor Code provides for the protection of the rights of employees, which means that it is important to understand when a person may be left without work at the will of the employer with good reason.

Important Aspects

Let's define what the labor relations between the parties are and what articles employers refer to when expressing a desire to dismiss their subordinate.

What it is

An employment contract is a document that describes the employment relationship between an employee and an employer. This agreement prescribes a number of rights and obligations of each party.

It is made by agreement of the parties. They are also terminated in accordance with certain rules provided for by law.

The dismissal of an employee is the termination of the employment legal relationship between the employee and the employer.

The reasons for termination of labor relations may be different - at the initiative of the individual, his manager or by mutual agreement.

The procedure for terminating the employment agreement

A written notice must be provided to each dismissed employee 2 months before the "judgment" day.

In this case, representatives of the trade union organization and the local employment service are also required to be notified.

You must submit information about all dismissed employees:

• about the profession;
• specialties;
• qualifications;
• salary, etc.

There are some restrictions for enterprises when terminating legal relations with employees. A person cannot be fired if:

If the company is liquidated, all employees without exception are subject to dismissal.

Teachers, regardless of whether it is a state, municipal or private institution, work according to labor agreements. So, it is worth relying on the provisions of Art. 77 TK.

Video: dismissal at the initiative of the employer

The question is often asked, is it possible to terminate the contract with the teacher if the parents of the students have submitted complaints to the management?

A teacher is fired if:

There are other grounds for terminating an employment relationship with teaching staff. All of them are listed in Art. 77 TK.

The basis for the dismissal of an employee at the initiative of the employer of a legal entity is also a discrepancy with the position he occupies.

The certification rules are provided for by the Federal Law of December 29, 2012 No. 273. The management may not fire teachers.

If the employee is not satisfied with such proposals, then the contract is terminated in accordance with paragraph 3 of Art. 81 Labor Code. It is unacceptable to continue work in case of committing immoral acts.

What difficulties may arise

Let's look at some of the difficult cases that you may encounter when dismissing an employee.

Situation 1

The presence of an unsatisfactory test result for.

The contract cannot be terminated on this basis if:

Situation 2

There is a reduction (paragraph 2 of part 1 of article 81 of the Labor Code). Dismissal prohibited:

• in case of non-compliance with the reduction rules provided for in Art. 81 and ;
• if the employer has not met the conditions established by law (for example, has not received
• consent of the labor inspectorate);
• a person who cannot be fired.

Situation 3

There was a gross violation of labor discipline in the form of absenteeism. The contract cannot be terminated if:

Situation 4

The person does not correspond to the position due to low qualification in accordance with the attestation report.

Dismissal on this basis is not possible if:

The change of ownership of the company's property is not recognized as a basis for dismissal of an employee at the initiative of the employer.

This may be the reason for the dismissal of only managers, deputies and chief accountants (but not branch managers).

In addition, the new owner cannot dismiss such persons if more than 3 months have passed since the moment of ownership.

These are just general points that you should pay attention to. It is advisable for employers to study all the rules that relate to dismissal on his initiative.

Indeed, in case of violation of the provisions of the Labor Code, troubles can arise.

Yes, and the staff needs to carefully reread the provisions of regulations in order to know how to defend themselves in case of unjustified dismissal.

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