What are the reasons for dismissing an employee? Dismissal - possible grounds, comments, special situations and solutions

Often, an employer threatens to fire a negligent employee under an article, although legally the term “dismissal under an article” does not exist. Any dismissal, in principle, occurs under one or another article of the Labor Code of the Russian Federation, but some articles of the Labor Code may negatively affect the further employment of the employee. Article 81 of the Labor Code clearly defines the reasons why an employer can dismiss an employee.

Now there will be fewer of us...

Paragraph 4 of this article states that the manager, his deputies and the chief accountant can be fired when the owner of the organization changes. In this situation, only the above-mentioned persons can be fired. The new owner does not have the right to fire ordinary employees under this article.

When an organization is liquidated, everyone is subject to dismissal, this will even affect pregnant women and young mothers.

When downsizing or downsizing, there are several groups of people who have the exclusive right not to lose their jobs. These people include breadwinners and people with long, uninterrupted work experience at a given enterprise, institution, or organization.

Inconsistency...

Another reason for dismissal is specified in paragraph 3 of Art. 81 of the Labor Code: “Inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.”

To identify the incompetence of an employee, a special certification commission must be created, which, as a rule, includes the deputy director of the organization, a representative of the personnel department and the immediate supervisor of the subject. A special order is issued regarding its implementation. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible to complete, for example, in terms of deadlines, you can write a complaint to the labor inspectorate and challenge the results of the certification in court. A final report is drawn up on the results of the certification.

Dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer. This can be either a vacant position or work corresponding to the employee’s qualifications, or a vacant lower position or lower-paid work that the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. If the employee refuses in writing all offers made to him, the employer may fire him.

Failure to comply...

An employee can also be fired for failure to perform official duties. So, according to paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the reason for dismissal may be “Repeated failure by an employee to fulfill work duties without good reason, if he has disciplinary action».

The employee’s failure to comply must be repeated and without good reason. Moreover, a disciplinary sanction must already have been imposed on the employee.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is failure to comply or improper execution by an employee through his fault of the labor duties assigned to him. Disciplinary action is allowed only in the form of:

comments, reprimand or dismissal for appropriate reasons.

To dismiss an employee on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation, failure to fulfill labor duties must be:

a) repeated;

b) without good reason.

If there are valid reasons, the employee must state them in in writing. And at the same time, the employee must already have a disciplinary sanction formalized accordingly.

Ivanov, late again!

Another reason for dismissal, as stated in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is “Single gross violation of labor duties by an employee.”

Absenteeism is considered absence from the workplace without good reason during the entire working day (shift), regardless of its duration. The most important valid reason is sick leave. If after returning to work you do not provide sick leave, then the employer may give you absenteeism.

If you had other extenuating circumstances, they must be stated in writing. Management decides how valid your reasons are.

If you need to be absent from work, write a statement in two copies, on which your management puts its “I do not object” resolution, date and signature. The first copy is with your superiors, keep the second one with you.

It's different when you're late.. “A single gross violation is also considered absence from the workplace without good reason for more than four hours in a row during a working day (shift).” That is, if you are an hour late for work, you cannot be fired on this point. However, for repeated lateness, a disciplinary sanction can be imposed and subsequently dismissed under clause 5 of Art. 81, as for repeated failure by an employee to fulfill his work duties without good reason.

Theft and embezzlement

Perhaps the most indisputable reason for dismissals is contained in subparagraph D, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation “Commitment at the place of work of theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses.”

It is already clear from the text of the law that in order to dismiss an employee on this basis, a court decision or a resolution of an authorized official is necessary, i.e., an investigation must be conducted. However, in practice, an employee may be asked not to make noise, which in various circumstances can affect both the reputation of the employee himself (even if he is not guilty of anything) and the reputation of the organization itself. And here the choice is yours.

Unsuitability

Professional incompetence is a lack of conformity professional qualities employee of the position held. In other words, if an employee cannot cope with his duties, or copes below the established average level, such an employee may be professionally unsuitable for this position. What to do if you were fired for?

Be careful!

In fact, there are many more reasons for dismissing an employee than those listed above. A complete list of grounds for dismissal is contained in Art. 81 of the Labor Code, which you need to know by heart.

The Labor Code also provides that termination of an employment contract at the initiative of the employer may occur in other cases provided for in the employment contract with the head of the organization and members of the collegial executive body organizations. And in each case, checks must be carried out to determine the legality of your dismissal. Thus, before signing an employment contract, carefully study it so as not to get unexpected “surprises”.

What is written with a pen...

What to do if, in your opinion, there is an illegal entry in the labor record? According to Art. 394 of the Labor Code of the Russian Federation, in cases of dismissal without legal grounds or in violation of the established procedure for dismissal, or illegal transfer to another job, the court, at the request of the employee, may make a decision on recovery in favor of the employee monetary compensation moral damage caused to him by these actions.

Moreover, if the court finds the dismissal illegal, the employee has the right to ask the court to change the wording of the grounds for dismissal to dismissal at his own request. In accordance with clause 33 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 N 225, if there is an entry in the work book about dismissal or transfer to another job that has been declared invalid, the employee, upon his written application, is issued a duplicate work book at his last place of work, into which all entries made in the work book are transferred, with the exception of the entry declared invalid.

Due to the incredibly frequent requests for help regarding dismissal issues, we have compiled the TOP 7 specifically for job seekers important rules– Dismissals under the article. Information was collected during 2013-2015. so that you can confidently communicate with your employer. If we helped you, please express your gratitude in the comments at the bottom of the page. We wish you a peaceful resolution of labor issues with employers. And professional success to your HR colleagues!

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Let's consider what grounds there are for dismissing an employee if the initiator is the employer. Let's 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 rules established by law.

The Labor Code provides for the protection of the rights of employees, which means it is important to understand when a person can be left without work at the will of the employer quite reasonably.

Important aspects

We will determine what the labor relations between the parties are and what articles employers should refer to when expressing a desire to fire their subordinates.

What it is

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

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

Dismissal of an employee is the end of the labor legal relationship between the employee and the employer.

Reasons for termination labor relations can be different - on the initiative of the individual himself, his manager or by mutual agreement.

Procedure for terminating an employment agreement

It is mandatory to provide written notice 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 provide information about all dismissed employees:

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

There are some restrictions for enterprises when terminating legal relations with employees. You cannot fire a person if:

If a company is liquidated, all personnel without exception are subject to dismissal.

Teachers, regardless of whether we are talking about a state, municipal or private institution, work under labor agreements. This means that when dismissing you should rely 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 a contract with a teacher if the parents of students have submitted complaints to the management?

A teacher is fired if:

There are other grounds for terminating employment relations with teaching staff. All of them are spelled out in Art. 77 TK.

Grounds for dismissal of an employee at the initiative of the employer legal entity there is also an inadequacy for the position he occupies.

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

If the employee is not satisfied with such proposals, then the contract is terminated in accordance with clause 3 of Art. 81 of the Labor Code. It is unacceptable to continue working if immoral acts are committed.

What difficulties may arise

Let's look at a few complex cases that may be encountered when an employee is dismissed.

Situation 1

The presence of an unsatisfactory test result for.

Cannot be terminated this basis agreement if:

Situation 2

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

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

Situation 3

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

Situation 4

The person is not suitable for the position due to low qualifications in accordance with the certification report.

Dismissal on this basis is impossible if:

A change in the ownership of company property is not recognized as grounds 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).

Besides, new owner cannot dismiss such persons if more than 3 months have passed since the creation of ownership rights.

These are just general points that are worth paying 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 may arise.

And staff need to carefully re-read the provisions of regulations in order to know how to defend themselves in case of unjustified dismissal.

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Each hired person is free to determine his preferred professional direction, the form of his employment, as well as the desired workload. His right to work freely and not be afraid of the arbitrariness of his leaders is guaranteed labor legislation. It also contains the basic principle of interaction between an employee and his employer: in order to be dismissed at the request of the employer, there must be good reasons, and dismissal at the initiative of the employee is possible simply upon his application.

What may be the grounds for dismissal at the initiative of an employee under the Labor Code of the Russian Federation?

The main norm of the Labor Code of the Russian Federation for an employee seeking to change or leave his place of work is considered to be Art. 80 Labor Code of the Russian Federation. According to her, no employer can refuse to dismiss his employee, of which he was notified in writing at least two weeks in advance. At the same time, a person has the right not to specify the reason for his departure and not to agree to a longer period of work. Only those who have decided to shorten or completely avoid the warning period about the upcoming settlement should inform the employer about the details of the current life circumstances.

Special norms of the Labor Code regulating the procedure for dismissal at the initiative of an employee relate to particulars:

• extended period of service for managers, Art. 280 Labor Code of the Russian Federation;
• deferment of dismissal until the end of the vacation, art. 127 Labor Code of the Russian Federation;
• opportunities to change your mind, art. 64 Labor Code of the Russian Federation.

Conventionally, the employee’s desire can also be called the option of terminating the employment contract by agreement with the employer, Art. 78 Labor Code of the Russian Federation.

Reasons for voluntary dismissal

The law does not prohibit the manager from asking the employee the reasons that prompted him to write a statement of his own free will. But at the same time, if the person himself does not agree to disclose them, the employer cannot insist or put forward additional conditions. Every working specialist must understand that, on his personal initiative, an employment contract of any type can be terminated: fixed-term, open-ended, seasonal, or while replacing an absent employee. Moreover, you can write a resignation letter at the employee’s initiative even the next day after signing the employment contract.

An employee who has given two weeks' notice of dismissal is not required to explain the reason or give additional explanations regarding his resignation.

On a sick leave

The general procedure for dismissal at the initiative of an employee involves advance notification of management of his intentions. But during the 14 days allotted for this, many events can happen that can affect the timing and dates, and sometimes even the desire to leave. In particular, often during the working period the employee who wrote the application goes on sick leave. If the period of incapacity for work ends quite quickly, then the HR department does not have problems with dismissal and transfer of documents. More difficulties are associated with the fact that the employee does not recover by the scheduled payment date.

The firm conviction that dismissal during vacation or sick leave is prohibited makes the personnel officer think about the correctness of his own actions. In fact, it is impossible to terminate an employment relationship with an unhealthy employee solely on the basis of the employer’s wishes, Art. 81 Labor Code of the Russian Federation. If the desire to pay off arises from the employee himself, then formalize the dismissal of the employee on the basis of Art. 80 of the Labor Code of the Russian Federation is necessary within the planned or specified time frame. At the same time, the employer remains obligated to pay him for his sick time, pay the required paychecks and hand over the work the next day after recovery.

For health

If an employee’s incapacity for work becomes systematic and prevents him from working fully, then he may refuse to continue working so as not to wear out his already deteriorating health. You need to understand that we are not talking about establishing disability or inadmissibility to work for medical reasons, because then the contract will be terminated for reasons beyond the control of the parties, Art. 83 Labor Code of the Russian Federation.

For those who do not feel the strength to continue their labor activity in the position held, there is legal basis not only to pay off at the employee’s initiative, but also to dismiss the employee on the same day. The same article allows you to leave quickly. 80 of the Labor Code of the Russian Federation, which states that a valid reason for refusing to work is considered to be the inability to no longer perform one’s labor functions.

The right to assess the seriousness and validity of the grounds listed by the employee is reserved to the employer.

By early dismissal

When a native enterprise begins to experience economic or organizational difficulties, it often sacrifices part of the team and announces a reduction in personnel or staff. It is difficult to imagine that most of them really wanted to look for new job, but even in this case it is possible to convey your own will to management.

Is it possible to change your mind about quitting?

It so happens that a person makes a decision to leave in the heat of the moment, but in fact, he did not plan to change his life so radically. The Labor Code allows an employee to change his mind and withdraw his application without consequences if he managed to change his intentions before the date of dismissal.

Those who have chosen payment after using their vacation and have already managed to go on vacation are deprived of this opportunity, Art. 127 Labor Code of the Russian Federation. Those whose place has already been accepted also fall into this group. new employee, and he entered on the terms of a transfer from another company, Art. 64 Labor Code of the Russian Federation.

IN work history Anything can happen to every person, and changing jobs is not such an exceptional event. To ensure that parting with your previous employer does not turn out to be unpleasant memories, the employee must, firstly, clearly understand what he is entitled to, and secondly, remember the obligations that remain with him.

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

When planning to apply for a new job, candidates usually write a short description-presentation about themselves. It includes personal data, information about education, work experience, additional information and the desired position in the new place. Sometimes, although this is not required, the reason for dismissal is indicated on the resume. There is no need to invent what to write if you still want to indicate the reason for leaving. The best option, copy what is written in the work book.

Why is a resume written?

The employer will not accept a new employee until he thoroughly finds out everything about his professional and personal qualities. Therefore, when starting to look for a new place of work, you need to tell us briefly about yourself, the most important thing so that the employer gets an idea of ​​you as an employee.

This is why a resume is created, a small one business card applicant, self-advertising, which contains information about education, work experience, personal data. The question about the reasons for dismissal is always asked during a personal meeting with the employer, therefore it is better to briefly explain in your resume what was the reason for the dismissal.

What are the most common reasons for dismissal listed on resumes?

It’s not difficult to guess what questions a recruiter will ask during an interview, since everyone can imagine themselves in the employer’s place. What you would like to know about your future employee is what a potential employer will want to know about you. He will ask you the question of why you left your previous job immediately after you tell about yourself.

Therefore, in your resume, indicate the reason for dismissal that is in your employment record and think over a plan for answering auxiliary questions regarding the details of the dismissal.

Let's assume the dismissal was voluntary. This is a general formulation. Most likely, this streamlined, faceless phrase will not say anything to the person reading the resume. Therefore, indicating the grounds for dismissal " own wish", add a few details explaining in more detail the reasons for leaving your job for your resume. Examples:

Some facts

When indicating the reason for dismissal in your resume, do not forget that a serious and experienced employer, when applying for a job, will be able to clarify this issue by calling former leader. In this regard, you should not invent situations in which you were forced to leave your previous company. To avoid an awkward situation, you need to learn how to correctly explain the reasons for your dismissal.

1. The return from this position turned out to be less than expected, although the work as a whole was successful, there were no complaints from the authorities.
2. A limited range of responsibilities did not provide the opportunity to learn new things, raise professional levels, and develop skills.
3. Inattention to rational proposals for improving the organization of work, misunderstanding on the part of management reduced the desire to work.

If an entry is made in the work book that the basis for dismissal was disciplinary offense, indicate evasive wording in your resume, without reference to the article of the Labor Code of the Russian Federation, and prepare to explain in more detail during a personal meeting.

How to state the reason for dismissal

Your resume should be written in such a way as to interest a HR specialist not only in the information it contains, but also in the way the information is presented.

The formulation of the reason for leaving a job for a resume should be brief, specific, truthful, and competent.

• Brevity. Indicate the reason for dismissal in almost the same words as the entry in the employment record. If there is any negative point in the recording, do not copy it, omit it if this will not prejudice the general understanding of the meaning of the reason for dismissal. It is better to present your version during the interview.
• Truthfulness. Remember, deception will be revealed sooner or later. Don't write lies, but come up with evasive wording. When you meet, try to honestly explain what mistake you made. The employer will appreciate an honest confession, which will look better than an awkward lie. Besides, telling the truth also requires willpower, which means you have it. It's small, but a plus.
• Specificity. Try not to write general phrases and formulations or unnecessary information. Firstly, it’s hard to read, and secondly, you may get the impression that you don’t know how to present information clearly and clearly.
• Literacy. A document drawn up with errors will make a negative impression and raise doubts about the candidate’s professionalism.

List of neutral reasons for dismissal

Additional Information

It is necessary to understand that a reference from a previous place of work may be required. On this moment this phenomenon is very popular, so it is better to leave without scandals. If you tell a new manager that the position in which you worked has ceased to exist, you need to be prepared to prove this data. Besides, positive feedback from your previous job is a huge advantage when joining a new company.

As a rule, you don’t really want to talk about the real reason for dismissal. And if the reason for leaving is not one, but several, you can choose one of them, the most neutral. It turns out that you didn’t lie and didn’t voice what you didn’t want to say.

The most popular neutral reasons for leaving:

1. There was a desire to change the type of occupation, the nature of work.
2. There is a desire for career growth, you want to implement it. Add why they prevented you from advancing at your previous job.
3. Not satisfied with the salary. Some people don’t talk about money for fear of seeming too materialistic. This reason is at your discretion. By and large, everyone needs money, looking for a place with a higher income is normal. Explain a little why your previous salary suddenly wasn’t enough (a new addition to the family, you need to save up to buy an apartment, etc.).
4. The company was reorganized, new management came in, and the nature of the work changed.
5. Moving to another area, it became inconvenient to get there, travel time was taken up unreasonably.
6. The company has changed its location and this area is very inconvenient.

It will not be difficult to select a suitable reason for dismissal if the work record book does not specifically indicate an unseemly reason for dismissal (absenteeism, drunkenness). work time and etc.).

If the dismissal was under an article, you need to explain why such an act became possible, find mitigating reasons, ending the story with a message about how you regret and repent of the offense committed.

Reasons that should not be voiced

Any employer wants to see a non-conflict, balanced, pleasant person nearby. Reasons for dismissal that cannot be disclosed under any circumstances:

1. Hostile relationships, conflicts in the team. The envy of colleagues who in every possible way stole talent and hindered growth. Communication skills and stress resistance are welcomed by any employer. If you don’t have it, as evidenced by squabbles at work that led to dismissal, this will put a big minus on you as a candidate, despite your good knowledge of the matter.
2. Worse bosses who didn't value you. You can’t openly blame your bosses for leaving. Just describe its shortcomings, supporting your reasoning with arguments. This should not look like a sweeping accusation.
3. Didn't get promoted. Such a reason may prompt the reader of the resume to think, was there a reason for the promotion? Perhaps you have not yet reached the level of leadership.
4. Permanent overtime work. The new employer may also be recruiting workers to work extra hours. If overtime is not critical for you, don't mention that you don't like overtime.
5. Personal reasons: going on sick leave, being under investigation, divorce, etc.
6. The system of the enterprise's work with personnel. They were regularly forced to improve their qualifications, undergo special trainings, courses, etc.
7. Payment of wages in violation of established rules.

Thus, in order not to find yourself in disgrace with your future employer at the stage of submitting your resume, think carefully about how to submit the reason for dismissal, without straying far from the truth and at the same time, preserving your chances as a job seeker.

You need to carefully prepare your answers regarding your departure from your previous job. Otherwise, even if an applicant comes for an interview and then cannot explain the situation and the reasons for dismissal, he may simply be refused the job.

List of eligible reasons

When thinking about what reason for dismissal to indicate in the resume and how to present it as successfully as possible, link the wording with the content of the entry in the work book (if it is left). If there is no work record, in this case you can act freely and choose a reason without harming your reputation. So, you decided to leave your previous position because:

1. Do you want to grow, develop, reach new heights, achieve great results, including in material terms.
2. There was a closure, liquidation of an enterprise, department, site, and a reduction in staff due to the reorganization of the organization.
3. Transferring your spouse to another location, you followed him and quit your previous job.
4. I stopped arranging my work schedule. Two general days off per week are required, not rotating ones.
5. The employer violated the terms of the employment contract.

When choosing reasons for dismissal, remember that they should explain the departure and help form a positive impression of you as a future employee.

Conclusion

Let's talk about how to write the reason for dismissal on a resume in order to avoid false information if the reason for dismissal is one that cannot be written on a resume under any circumstances.

Indicate a neutral wording, for example, you do not see eye to eye on organizational issues, but during a personal meeting, be able to convince that the unseemly offense was caused by a fatal combination of circumstances.

If the resume is filled out not on a form with questions developed by this particular employer, but in free form, you don’t have to include a clause about the reasons for dismissal. At an interview in person, it will be better to explain the situation with the job change, especially if you had to leave not because of the best article of the Labor Code.

Don't include words like "always, never, hate, nothing, mistake, problem, failure" in your resume. Psychologists do not recommend using words with a negative meaning. Replace them with synonyms. For example, not “mistake”, but “valuable lesson”.

Ask questions in the comments to the article and get an expert answer

Grounds for dismissal Labor Code RF quite numerous. Our material outlines the essential features of the general principles. 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 resigning employees in different situations.

General and special grounds for dismissing an employee

General grounds for termination of employment (dismissal) should be understood as grounds applicable to any person 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 officials). Thus, one of the special grounds for dismissal for civil servants is violation of restrictions imposed on them in connection with their status (for example, engaging in entrepreneurial activity).

Mutual consent to terminate the employment relationship

The parties to the labor relationship can terminate the relationship at any time by coming 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 outline the features of dismissal in this case:

1. Both the employee and the employer can submit a proposal for dismissal on the grounds under consideration, and vice versa. The second party only agrees with the proposed option or refuses it.
2. In practice, such dismissal is formalized by a bilateral document - an agreement. However, this is not necessary, since there is no corresponding requirement in the law. An employee can apply to 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. The most important condition for dismissal by agreement is reaching an unambiguous agreement on the grounds for dismissal and its duration. The Ministry of Labor of Russia indicated this in one of its letters - dated April 10, 2014 No. 14-2/OOG-1347.
4. Upon dismissal by mutual agreement, the transfer of compensation (severance pay) is allowed, but only those established in the agreement - collective or labor (Part 4 of Article 178 of the Labor Code of the Russian Federation). However, one must take into account the ban 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 payment in connection with dismissal, since there are no exceptions to Art. 140 of the Labor Code does not provide for it.

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 drawing up a separate document (warning, notice) and handing it to the employee against signature.

A fixed-term contract that terminates upon the return to work of the person being replaced by the current employee cannot be terminated if this event does not occur. This means that if, for example, the main employee’s maternity leave has come to an end, but he never shows up for work, then the temporary employee cannot be fired. A special feature of this case is that the main employee does not need to be notified 3 days in advance about the termination of the contract due to the return to work of the main employee.

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 made 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 these - this 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 has the right to refuse employment relations at his own will (Article 80 of the Labor Code of the Russian Federation). To do this he needs:

1. Express your will in writing (by handing over your own written and signed resignation letter, filling out the employer’s form, etc.).
2. Notify management of your intention to leave work at least 2 calendar weeks before the planned date of departure (by delivering the above statement to the employer in person or by mail).

The employer should definitely pay attention to the following:

1. The application must clearly establish the reason for dismissal, i.e. the employee’s desire to stop working for this employer. However, no information contained in the document should indicate forced dismissal.
2. It should be clear from the application which day will be the final one. So, from the wording like “I ask you to fire me on January 24,” it is not clear whether that day will be the 23rd or the 24th. In this case, the employer needs to take action, i.e. ask the employee to re-write the application. The exclusion of the preposition “with” before the date will bring clarity, since the date 24 indicated in the example in this case will be the day of dismissal (the final day of work).
3. If the application does not contain a date of dismissal, then it is recommended to dismiss the employee no earlier and no later. last day deadline for notice of dismissal.
4. Up until the moment of dismissal, the worker can change his mind and withdraw his application. The employer must stop dismissal measures unless another person has already been invited to fill the 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 on vacation or sick leave at this time. In addition, there are circumstances in the presence of which an employee should not notify of dismissal in advance (Part 3 of Article 80 of the Labor Code of the Russian Federation): the desire to retire, the transfer of a spouse to work in another region, etc.

Grounds for dismissal at the initiative of the employer

TK contains quite a large number of grounds for severing labor relations, combined common feature— 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 completed the probationary period is subject to dismissal under Part 1 of Art. 71 Labor Code of the Russian Federation.
2. Closing an organization or 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 closure of a separate division, this basis should also be applied. However we're talking about only about branches (representative offices) that are located in a different area, i.e., different from the territory of the parent organization. Otherwise, dismissal is carried out due to reduction, which means that the dismissed person must be offered 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 job (clause 3, part 1, article 81 of the Labor Code of the Russian Federation).
5. Change of ownership of the company's property mass. Such a circumstance may become grounds for dismissal strictly defined categories of workers: managers, their deputies and chief accountants (clause 4, part 1, article 81 of the Labor Code of the Russian Federation).
6. Dismissal due to negative actions of an employee. This should include the grounds specified in paragraphs. 5-11 hours 1 tbsp. 81 Labor Code: repeated and gross violations of official duties, actions that resulted in loss of trust among management, immoral acts, etc.
7. Other special grounds that may be established by the 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

A transfer means a change in 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 submitting an employee’s statement of intent to resign by transfer to another company. At the same time, he must attach a letter of request with the appropriate content coming from the new employer.
2. By giving the employee a positive response to the employer’s offer of transfer.

The features of this ground for dismissal are as follows:

• To make a transfer, the will of 3 entities is required: the old employer, the employee and the new employer;
• a new employer does not have the right to refuse to hire an employee whom he invited in writing and who has already resigned by transfer (Part 4 of Article 64 of the Labor Code of the Russian Federation);
• a probationary period is not established for transferred employees (part 4 of article 70 of the Labor Code of the Russian Federation).

Entry into elected office

To begin the dismissal procedure in connection with the start of elective work or assumption of 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. However, unlike a transfer, dismissal does not require the consent of the employer. Moreover, he has the obligation to terminate the employment contract with the employee.

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

Changing company structure or reporting lines

Employers can dismiss some employees (managers, their deputies and chief accountants) unilaterally. This becomes possible if the owner of the company’s property mass changes (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 owner - a document evidencing the transfer of rights;
• change of jurisdiction - by act-order of the executive body;
• reorganization - an extract from the Unified State Register of Legal Entities.

The Labor Code of the Russian Federation does not regulate in detail the procedure for dismissal on these grounds. It appears 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 the employment relationship.

Changing the terms of the employment contract

By general rule any changes in the conditions of labor relations are possible only by mutual agreement of the 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 labor 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 clause 7 of Part 1 of Art. 77 Labor Code of the Russian Federation.

IMPORTANT! An employer should not abuse the right to change working conditions and force undesirable employees to quit. In the event of a legal dispute, all documents substantiating the need and actual change in working conditions will be subjected to thorough verification. In the absence of real changes, the dismissal will be declared illegal (decision of the Moscow City Court dated July 6, 2010 in case No. 33-19889).

To be dismissed in this case, you must:

1. Notify the employee about upcoming changes in advance (2 months or more).
2. Record the refusal to continue working under the new conditions (receive a statement from the employee or a corresponding note in the notification).
3. Offer possible vacancies in writing in accordance with Part 3 of Art. 74 TK.
4. Record the employee’s refusal of the offered vacancies.

Medical contraindications for work

In Art. 73 of the Labor Code of the Russian Federation establishes the employer’s obligation to transfer an employee to another job if the latter has contraindications to the current one (must be confirmed by a medical report). If the legal procedure was fully followed, but the employee refused to be transferred or suitable job was not there at all, then fire him under clause 8, part 1, 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 Constitutional Court RF (definition dated July 14, 2011 No. 887-О-О).

Dismissal is carried out if one of the following grounds exists:

• a medical certificate issued by an authorized entity (MSEC or KEC), 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), for which there are no contraindications, with an explanation of the consequences of refusing to translate;
• recording 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 location

It may happen that the employer decides to change the location, but not all workers will agree to move for work. In this case, if the employee does not want to be transferred to another location, he can be fired.

The Labor Code of the Russian Federation does not regulate in detail the procedure for dismissal on this basis, but it seems that the employee’s refusal to transfer must be in writing. It should be noted that by locality in the Labor Code of the Russian Federation we mean the territory within the boundaries of a populated area.

Circumstances beyond the control of the parties

The Labor Code of the Russian Federation has a group grounds for dismissal, united by such a feature as the lack of will to terminate the employment relationship on the part of the employer or employee. All of them are listed in Part 1 of Art. 83 Labor Code of the Russian Federation. These include, for example, conscription into the army, the death of an employee, military action, 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 the condition that it is impossible to transfer to another job located in a given area and suitable for the employee, taking into account his skills and health indicators (including lower paid ones). In this case, we can talk about, for example, termination of access to state secrets or reinstatement of someone who previously worked in this position (by court decision).

Violations of the norms of the Labor Code of the Russian Federation when hiring, resulting in dismissal

The last of the general grounds for terminating the relationship between an employee and an employer is a violation of the procedure for their registration if it interferes with further work (clause 11, part 1, article 77 of the Labor Code of the Russian Federation). Such violations are listed 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:

• hiring a person deprived of the right to engage in certain activities (for example, teaching) by a court verdict;
• hiring despite restrictions on the occupation of certain positions by certain categories of persons (for example, the appointment of a person with a criminal record to the position of 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 Labor Code of the Russian Federation.

So, if the employee is at fault, he is not paid anything and is not offered another job. If the employer is to blame for the violations, then he is obliged to:

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

What to do if, after dismissal, the grounds for dismissal no longer exist?

Some of the grounds for dismissal may disappear during the process of registration. Thus, an employee may change his mind about quitting at the last hour of his last day of work and cancel his application. The signed order in this case (even if the employee has already been familiarized with it) will not be sufficient grounds for dismissing the employee. In such situations, when the employee has not yet been fired, the employer should cancel the dismissal order with another order.

Much the situation is more complicated when the circumstances that caused the dismissal ceased after the employee had already been dismissed. This can happen, for example, if the employer cancels the reduction or liquidation of the company. The Labor Code of the Russian Federation does not contain any rules for such a case. As of the date of dismissal, the corresponding grounds for dismissal existed, therefore the automatic reinstatement of those dismissed without their consent seems incorrect. Reinstatement is possible by virtue of a court decision, an order from the labor inspectorate, or voluntary reinstatement by the employer of such employees. The optimal option for the employer is a voluntary offer to those fired to be reinstated at work.

As you can see, each of the general grounds for terminating 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.