Timing of dismissal from work. Why can you be fired from your job? How long does it take to notify the employer of dismissal?

Firing an employee is not that easy. The Labor Code contains Article 81 for this purpose, “Termination of an employment contract at the initiative of the employer.” But for some cases a commission will be needed, for others - reliable evidence of violations. It is labor-intensive and time-consuming.

It’s easier to return your work record with the wording “dismissed at your own request.” According to the Labor Code, the boss is obliged to offer some fired workers a new position. This will not work if the employment contract says that the person left on his own initiative.

Reasons for dismissal at the initiative of the employer may be as follows:

Labor mismatch

The law says that you can be fired for inadequacy of the position held (Labor Code of the Russian Federation, Article 81, paragraph 3). To do this, the boss needs to develop a plan: how and where to test the employee, and by what criteria to evaluate his answer. The next step is to assemble a certification commission. It should include the deputy director of the company, an employee of the human resources department, a representative of the trade union and the immediate supervisor of the person being certified. The commission offers a task adequate to the employee’s position.

After certification, the commission votes whether you are suitable for the position or not. For example, if a designer does not have a specialized education, but has knowledge and skills in this field, the commission will offer to send him to courses or transfer him to a position more suitable in terms of qualification level.

If you have not passed the certification, you still cannot be fired immediately. First, the manager must offer a position that matches your professional level from those currently available in the company. When you refuse all options in writing, that’s it, you can fire. The law also allows you to challenge the certification result in court. If the certification procedure is violated, the court will declare the dismissal illegal and the position will be returned.

It is illegal to certify pregnant women and those who have worked in a position for less than two years. After maternity or child care leave, two years must also pass before certification. Important: this is stated in the Order of the Ministry of Education and Science of the Russian Federation dated May 30, 2015 N 293, but there are no such conditions in the Labor Code.

What to do: update professional skills. A valuable employee who has excellent knowledge of the business is better protected from dismissal than an employee with outdated knowledge and work methods.

Arbitrage practice: Igor Petrovich (name changed. - Note ed.) worked in the library and was in good standing with colleagues and management. He lacked the title of “Veteran of Labor” for one and a half years of experience. Therefore, the pensioner continued to work, despite his advanced age.

After the next certification, Igor Petrovich was offered to move to another position, with a demotion. The commission considered that the employee’s experience and skills do not correspond to the position held. The pensioner was outraged and refused. Igor Petrovich was fired. Then he went to court and demanded reinstatement and compensation.

Members of the commission also spoke in court. They said that Igor Petrovich, unfortunately, does not know how to work with a computer. And most of the responsibilities for his position now revolve around this skill. Igor Petrovich’s colleagues said that he is a very responsible and active employee, that he has many certificates and gratitude.

The court did not support the pensioner. Formally, the certification passed without violations, but the employee was unable to comply with the requirements of the commission. He refused another position. The dismissal was recognized as legal.

Lateness, absenteeism

You won't be able to fire someone for being late on its own. But the boss can impose disciplinary action. For example, a remark or reprimand. And for a new penalty - order dismissal (Labor Code of the Russian Federation, Article 81, paragraph 5). According to the law, this is called “repeated failure by an employee to fulfill his job duties without good reason.”

If an employee goes to court, they will look at the dates of penalties. An impeccable work reputation at first, and then several reprimands in a short period of time will raise questions about the legality of dismissal. The court will side with the employee, deciding that the manager did not give him a chance to improve.

Absenteeism is when an employee is not at work for more than 4 hours in a row or he missed an entire shift, and there is no certificate of illness or other explanation. For absenteeism you can be fired under the same article as for being late.

General rules: before reprimanding you, your boss must find out the reason for your tardiness or absenteeism. You have two days to explain everything in writing. If there are no valid reasons, a disciplinary sanction will be issued. This is an order or instruction that the employee must sign within three days.

What to do: maintain discipline, always formalize sick leave or vacation at your own expense.

Important: if an employee was fired for being late, you need to check whether there were other cases of tardiness in the company at the same time. If so, then dismissing one person is labor discrimination and a reason to go to court.

Arbitrage practice: Kostya got a job as a storekeeper at the company. I worked for a year and asked to go on vacation. I brought a statement, but the boss ignored it. A month later, Kostya again wrote an application for leave. The result was the same.

One day Kostya woke up in the morning and decided that this was no longer possible. He drank coffee and went to the park with his favorite book. Kostya did not go to work that day. The boss immediately drew up a report stating that the employee was absent from the workplace. Kostya refused to write an explanatory note and sign the act. A week later the dismissal order was ready. And then there was a trial.

The court declared the dismissal illegal, since the employee has the right to vacation for the first year of work already 6 months after taking office. With written consent, you can postpone your vacation to the next year. But Kostya did not sign such documents and did not agree to postpone the vacation.

It turns out that the boss violated Kostya’s right to vacation. And he boycotted this decision by absenteeism. The court sided with Kostya, reinstated him in his position and awarded compensation.

Disclosure of secrets

Commercial and official secrets are protected by law. When you sign non-disclosure papers, you accept responsibility for the safety of this information.

Important: your salary, the number of employees in the company, information about vacancies are not a commercial secret. This is what it says in No. 98-FZ “On Trade Secrets”. And the law on personal data allows you to tell without restrictions how much you receive. Because you independently manage your personal data. At the same time, someone else’s salary is the personal data of another person. If, due to your position, you have access to such information, you signed a non-disclosure document and spilled the beans, then you can be fired for disclosing other people’s data.

If desired, the boss can prohibit talking about the amount of salary outside the organization. Then he must draw up an internal document where the salary data will have the status of an official secret. It is impossible to prohibit discussing your salary with your boss or colleagues. This is illegal and such an order can be challenged in court.

To fire someone for disclosing official secrets, you need evidence. For example, an employment contract signed by an employee, which lists everything that the company considers confidential information.

What to do: study the employment contract and find out what information cannot be discussed with colleagues and friends.

Who can't be fired

Pregnant women are not fired for any of these reasons. But the boss can issue a reprimand and record a violation. Those who are on leave - at their own expense or on maternity leave - can only be fired when they return to work. This cannot be done in hindsight.

There are also medical reasons for dismissal. If an employee cannot go to work for 4 months, the position is retained. When the period of medical restrictions on work is more than 4 months, the boss has the right to issue a dismissal order (Labor Code of the Russian Federation, Article 73). Or offer a position that matches the employee’s health capabilities. It is impossible to fire someone who is on sick leave.

Arbitrage practice: Sofya Ivanovna (name changed, - Note ed.) worked in the Council of People's Deputies. One day the structure of the apparatus was revised. Her position was reduced and another one was introduced - head of organizational and personnel issues. The boss called Sofya Ivanovna for a conversation and invited her to resign “of her own free will.” And he did not offer to take a new position corresponding to experience and knowledge. She refused.

Due to her personality, Sofya Ivanovna had a hard time with problems at work and even ended up in the hospital. While on sick leave, she received the first official notice from her employer that her position was being cut.

I'm being pushed to quit. What to do?

Defend yourself. If the manager has no comments about your work and work discipline, formally the truth is on your side. Personal complaints from colleagues are not a reason for dismissal. If you feel pressure from one of your employees, write a report addressed to your boss. Tell us who is hindering your work and how, and ask them to look into the situation.

File a claim. Describe the problem in free form. Explain in detail how you see her solution. Indicate what you will do if the situation is resolved in a way that is undesirable for you (go to court, write to the labor inspectorate). Send the claim by registered mail to the manager at your company address. You need notification that the recipient has received the letter. If the case goes to court, this document will protect your interests.

You will need

• - Labor Code of the Russian Federation;
• - consultation with an experienced personnel officer;
• - Labour Inspectorate;
• - reports on work, testimonies of colleagues.

Instructions

First, you need to figure out how a dismissal can be formalized. The wording, laws, articles are different, and there are nuances. So, you can be fired “by”, “by agreement of the parties”, “in connection with staff reduction”, “in connection with the liquidation of the enterprise”, “under Article 81 of the Labor Code”. Each of these cases has its own subtleties.

If you are offered to resign voluntarily, the employer expects to get rid of you with little loss, that is, not to pay you what you are owed. “Dismissal at will” is a formulation that suits all employers without exception. Of course, they pay exactly as much as you work when you quit. If the employee does not want to sign the statement, he may be offered “dismissal under the article.”

If you intend to, offer the employer dismissal “by agreement of the parties” and write down your terms in the agreement. In the conversation, you can hint that you know how difficult it is to fire a person “under the article”, and what strong evidence your employer must have. It’s great if you belong to a preferential category of citizens: you are pregnant, raising a child alone, or if you are a mother of many children. Then it is almost impossible to fire you.

If the employer does not agree to these conditions, you should remember whether there were any violations or miscalculations in your work history over the last month or two. What you should pay special attention to: you must not be late, your absence must be documented appropriately, and the performance of your duties must clearly comply with the employment contract you signed. Do not sign papers without looking; when going on a business trip, get a travel certificate.

If you are fired due to staff reduction (clause 2 of Article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer is obliged to notify you of dismissal in advance, offer you another job, identify beneficiaries, report the layoff to the employment service and pay you severance pay in the amount of several salaries upon dismissal.

If you want to be fired upon liquidation of the enterprise, you must also be notified of this no later than 2 months before the dismissal. You have every right to resign early, having received your salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties occurs in accordance with Article 77 of the Labor Code of the Russian Federation, paragraph 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with your employer. A written agreement is concluded that states when you will be fired and what monetary compensation you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You can be fired if the owner of the enterprise changes (Article 81, paragraph 4) if you are the general director, deputy general director or chief accountant. You may be fired for inadequacy for the position held (Article 81, paragraph 3). Then they should assemble an certification commission for you, which will come up with a test task for you. Even if you fail to cope with it, they cannot fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under clause 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your job duties. Remember, in order to be fired, the violations must be regular and without good reason. In addition, you must have formal disciplinary action.

You may also be threatened with dismissal for absenteeism or tardiness under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is only possible if you did not provide any documents explaining why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles under which you can be fired are “Theft and Embezzlement” and “Loss of Trust.” They are associated with documented violations of financially responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you do get fired, you have every right to continue to fight. Within a month from the date of dismissal, you can sue your employer. You also need to contact the labor inspectorate and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

note

1. If you do not come to work, be sure to confirm the validity of the reason for your absence.

2. Read your employment contract and job descriptions again.

3. Don't be afraid to stand up for your rights.

Helpful advice

If you feel that clouds are gathering, document every step and decision you make.
- Avoid disciplinary action.
- Avoid being late.

Sources:

• How to competently fire an employee?

It's always unpleasant to lose a job. And it doesn’t matter for what reasons this happened. Someone gets laid off, someone is fired for some professional or job inconsistency, someone submits a letter of resignation themselves. But time passes, and the search for another job begins.

You will need

• - summary;
• - covering letter

Instructions

Resist the temptation to constantly feel sorry for yourself. And don't let the guilt of losing your job overwhelm you. This happens to almost everyone. Even if you are not sure that this is always a fair decision on the part of the authorities. But let such thoughts remain in your head only for a short time. This is already in the past. The next step is to find a new place. You need to take this event very responsibly. Simply put, the search for a new job itself needs to be turned into a kind of work.

Think about your priorities and areas of desired work. You may need to broaden your search beyond just your previous major's profile. Based on your experience, education,... If you can't find a permanent job, a good solution is to get a temporary one.

Prepare. If you've never created one, seek professional help or look at examples online. A well-written resume that reflects all your professional skills can be a decisive factor in accepting a new position. If possible, take a cover letter or references from your previous job. You can agree with your work team to recommend you as a specialist if the need arises.

Look for work through labor exchanges, employment newspapers, Internet sites, employment services, and also take advantage of personal connections and acquaintances. If you're stuck, don't waste time: try to learn something new. Go study and learn the basics of another specialty.

If you were fired for any violation of labor discipline or administrative misconduct, this may have a negative impact on getting a new job. But at the interview you can explain in more detail the reasons for the situation that has arisen. You shouldn't talk about this in advance. It is quite possible that it is in your new job that you will be able to show all your talents and abilities.

Video on the topic

Sources:

• Job search site

Due to the inadequacy of the position held, do not be self-flagellation, analyze your work in the organization, perhaps you were lazy a lot, wasted time, treated your work carelessly. Understand the reasons that caused such an attitude towards work; perhaps you chose an unsuitable field of activity, or you were not satisfied with the organization of work in the company. Take this into account when searching for a job in the future, ask questions that interest you immediately during the interview, so that the situation does not repeat itself next time. If you do not agree with the reason why you were fired, go to court. But the employer cannot fire you without good reason. After your dismissal, rest for a few days and put your thoughts in order. If possible, contact us to better understand yourself. As soon as you have rested, start looking for a new job: write a resume, post it on employment sites, study the labor market, respond to vacancies that interest you. Perhaps dismissal from your current job will serve as an impetus to radically change your field of activity, take care of your health or business. In such a situation, it is very important not to withdraw into yourself, but to choose a goal and gradually achieve it.

Reinstatement after voluntary dismissal is one of the most likely consequences of violating the procedure for terminating an employment contract established by the Labor Code of the Russian Federation. In the material below, we will consider the procedure for challenging dismissal and judicial practice in such cases.

Forced or illegal dismissal - a regulatory framework for challenging

Constitution of the Russian Federation in Art. 37 recognized the right of every citizen to work and free disposal of his abilities. Guided by Art. 77 of the Labor Code of the Russian Federation, an employee may at any time voluntarily, of his own free will, terminate his employment relationship with the employer in the manner prescribed by law. In addition to the Labor Code, there are other regulatory acts complementing it that regulate labor activity and the dismissal of certain categories of workers:

• Law “On the State Civil Service of the Russian Federation” dated July 27, 2004 No. 79-FZ,
• explanatory documents of the Plenums of the Supreme Court of the Russian Federation, Rostrud, etc.

However, in practice, there are often various violations of this procedure that make dismissal illegal, starting from purely procedural issues (for example, indicating the wrong date of dismissal in an order) and ending with forcing employees to terminate the employment contract under pain of dismissal under the article (that is, forced dismissal) . In such cases, the provisions of Chapter 60 of the Labor Code of the Russian Federation, which is entirely devoted to the resolution of labor disputes, and the Code of Civil Procedure of the Russian Federation are applied regarding the procedure for considering the case in court.

How to challenge voluntary dismissal?

Challenging any illegal dismissal, including termination of an employment contract at the request of the employee, occurs in the manner prescribed by Ch. 60 Labor Code of the Russian Federation. So, according to Art. 381, the parties to a labor dispute can be not only actual employees and the employer, but also persons who were previously in an employment relationship, which means that one can be fully guided by the above chapter of the Labor Code of the Russian Federation even after dismissal. At the same time, Art. 391 established an exclusively judicial procedure for considering cases of reinstatement of an illegally dismissed employee.

Challenging the termination of employment relations with certain categories of employees may be regulated by separate regulations that do not contradict the Labor Code of the Russian Federation. For example, paragraph 14 of Art. 70 of Law No. 79-FZ determined that the dismissal of a civil servant is contested in court, regardless of the grounds for termination of the contract.

In Art. 22 of the Code of Civil Procedure of the Russian Federation and the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts...” dated March 17, 2004 No. 2, the jurisdiction and jurisdiction of such cases is clarified: their consideration falls within the competence of district (city) courts of general jurisdiction. When filing a statement of claim, the plaintiff is exempt from paying state duty on the basis of Art. 393 of the Labor Code of the Russian Federation and clause 1 of Art. 333.36 Tax Code of the Russian Federation.

Art. 392 of the Labor Code of the Russian Federation gives the employee a month to appeal to the court to challenge dismissal at his own request. The period begins to run from the date of receipt of a copy of the order of dismissal at one’s own request or the work record book. The same article allows for the restoration of the statute of limitations in such cases. For example, this is possible if the employee was in a hospital for treatment, was called up for military training, etc. Simply put, if there are good reasons, the plaintiff may be given another month to protect his violated right.

Pre-trial settlement

The law does not provide for mandatory pre-trial settlement of disputes regarding illegal dismissal at will, but sometimes such measures can give a positive result and help avoid lengthy litigation. In particular, an employee can write a letter to the employer demanding reinstatement, justifying the illegality of dismissal at his own request, and also contact the State Labor Inspectorate. The inspection itself cannot reinstate an illegally or involuntarily dismissed employee, nor change the grounds for dismissal specified in the work book, but its employees may well provide legal assistance or conduct a conversation with the employer.

Legal consequences of challenging illegal dismissal

If the fact of illegal dismissal at one’s own request is recognized, in accordance with Art. 394 Labor Code of the Russian Federation:

• the employee, by court decision, is reinstated in his previous position at his previous place of work;
• the dismissed person is paid monetary compensation for the entire period of forced absence, calculated on the basis of average earnings in accordance with clause 4 of the regulation on the specifics of calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922;
• in some cases, the employee is also compensated for moral damage;
• An entry is made in the employee’s work book stating another reason for dismissal if the organization was liquidated.

Such decisions are subject to immediate execution on the basis of Art. 396 Labor Code of the Russian Federation. Otherwise, the employee must be compensated for the entire delay in execution of the decision in the form of average earnings for the additional time of forced absence.

What is illegal dismissal?

As one of the grounds for termination of an employment contract and termination of relations with the employer, Art. 77 and 80 of the Labor Code of the Russian Federation determined the employee’s own initiative. The procedure for expressing such an initiative has also been determined.

So, on the basis of Art. 80 of the Labor Code of the Russian Federation, the law “On Electronic Signature” dated 04/06/2011 No. 63-FZ, the explanations of Rostrud in the letter “On the procedure for dismissal...” dated 09/05/2006 No. 1551-6 and some other acts, we can conclude what conditions are mandatory must be observed in order to avoid challenging the legality of dismissal at will. That is, conditions, if violated, we can safely say that termination of the employment contract is illegal.

In particular, we are talking about the form and content of the resignation letter. A resignation letter is a document that must be certified by the employee’s signature. The signature can be either handwritten or, on the basis of Art. 6 of Law No. 63-FZ, electronic. The application can be submitted personally to an employee of the HR department, in the form of a postal item or an email sent by corporate mail. No verbal assurances shall be considered legal grounds for dismissal.

The wording of the expression of will itself is no less important. It must be clear and unambiguous. “I ask you to fire me”, “I ask you to terminate my employment contract” - these expressions clearly express the essence of the statement. Otherwise, the employee may later claim that he simply wanted to take administrative leave or transfer to another position.

When notifying the employer of his dismissal, the employee must indicate the date on which the employment relationship will be terminated. It is important to indicate it correctly. So, despite its popularity, the wording “I’m sorry to dismiss you from…” is not the most correct option, since it can be interpreted in two ways and, as a result, lead to difficulties in determining the date of the employee’s last working day. In this case, the date must be indicated by the employee himself; a manager's visa changing it is obviously illegal, since it violates the meaning of the employee's own will.

Don't know your rights?

What kind of dismissal can be considered forced?

The voluntariness of dismissal at the employee’s own request is the most important condition for recognition of its legality. That is why forced termination of an employment contract is considered a case of illegal dismissal. So, sometimes a statement of one’s own free will is written as a result of hints or open instructions from the employer or threats of dismissal “under the article,” that is, for negative reasons. In this case, the actual circumstances do not correspond to the wording of the dismissal and the employee is left to either challenge the legality of the dismissal or demand a change in the wording. This is especially true for pregnant women who, according to Art. 261 of the Labor Code of the Russian Federation cannot be dismissed at the initiative of the employer, with the exception of cases of liquidation of the enterprise. At the same time, the Labor Code does not prohibit dismissing them at will.

Any form of pressure on an employee to force him to write a letter of resignation, be it outright threats or hints of demotion in position or salary in case of refusal to terminate the employment contract, can become a reason for reinstatement. However, it is worth saying right away that it is extremely difficult to prove forced dismissal if the employee did not initially collect supporting materials, since on the basis of subsection. “a” clause 22 of the above-mentioned resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, the burden of proving forced dismissal rests with the employee.

Challenging illegal and forced voluntary dismissal. Arbitrage practice

Russia is not one of the countries with a case law system, that is, judicial practice is not a source of law. Nevertheless, the position of the courts on the issues of reinstatement of employees illegally dismissed at their own request is very indicative. Having analyzed court decisions in this area, you can find a lot of similar cases and with a high probability predict the prospects of almost any dispute about dismissal, as well as highlight the main types of violations of the procedure for dismissal at will, most often committed by each of the parties, and understand the position of the judges on them.

Violation of the procedure for filing an application at your own request

The first step to terminating the employment relationship at the employee’s initiative is to write a letter of resignation of his own free will. Labor Code of the Russian Federation in Art. 80 indicates that the employer must be notified in writing by the employee of the upcoming dismissal. A verbal warning cannot be considered a basis for terminating an employment contract at will.

This norm was also applied in the appeal ruling of the Moscow City Court dated 06.06.2016 No. 33-22057/2016. The complaint of Glavmosstroy-Region LLC against the decision of the Khamovnichesky District Court of Moscow was considered, which decided to cancel the order of dismissal at the employee’s own request, restore him to his previous position, and also recover from the defendant the average salary for the period of forced absence, compensation for moral damages and legal costs.

According to the defendant's statements, the plaintiff warned him of his dismissal via a telephone call, after which he promised to send a statement by e-mail, which he ultimately did not do. The plaintiff stated that he did not plan to quit and did not write a statement. The appellate court supported the position of the district court and left the decision unchanged.

Separately, it is worth noting cases where an employee is forced to write 2 applications at once during employment: about hiring and about dismissal at his own request with an open date. This practice is illegal, but such facts have to be confirmed by experts.

One of these cases became the basis for the appeal ruling of the Moscow City Court dated June 4, 2012 in case No. 11-8888. The court upheld the decision of the court of first instance to reinstate the employee to his previous place of work, based on the results of a handwriting examination, which confirmed the fact that the date of drawing up the application was not in the employee’s handwriting.

Reinstatement of employees who withdrew applications

Article 80 of the Labor Code of the Russian Federation gives the employee the right to withdraw his resignation at any time until the last day of work. You can even withdraw your application by post (but no later than the end of working hours on the last day of dismissal), and the date of receipt of the application by the employer is not important.

Thus, the Moscow City Court considered case No. 33-252/2016 and issued an appeal ruling dated January 12, 2016 on a complaint against the decision of the court of first instance to refuse to reinstate an employee dismissed at his own request, who sent a telegram to withdraw his application after familiarizing himself with the dismissal order, receipt of payment and end of working hours. The appellate instance dismissed the complaint.

Violations relating to the date of dismissal

Often, the basis for reinstatement of an employee to his previous position is violation of the terms of dismissal. As a general rule, this is 2 weeks from the date of notification to the employer. The exceptions mentioned in Art. 71, 296 and 292 of the Labor Code of the Russian Federation apply to seasonal workers, probationary employees and fixed-term workers with a contract concluded for less than 2 months.

Separately, cases of dismissal without work and dismissal of managers are considered, for which the notice period for dismissal is, according to Art. 280 Labor Code of the Russian Federation, 1 month. Ignoring these features causes the employee to be reinstated or the date of dismissal to be changed with subsequent payment for forced absence.

An example of such a decision is the appeal ruling of the Lipetsk District Court dated January 13, 2016 No. 33-59/2016, when the employer dismissed a managerial employee from his position before the expiration of a month, thereby violating his right to work. The panel supported the decision of the court of first instance in terms of payment of material compensation, overturned it in terms of refusing to recognize the illegality of dismissal and obliged the employer not only to change the date of dismissal in the work book, but also to pay for forced absence.

About the application for forced dismissal

Most of the lawsuits challenging illegal dismissal at will are related precisely to coercion to write a statement. The burden of proof in this case falls on the plaintiff, which in itself is quite difficult. You need to collect evidence in advance, for example, write a memo addressed to the manager about coercion - in court it will serve as evidence that the employee was under pressure. Otherwise, the claim will be denied.

Most of the claims in such cases come to the courts from pregnant women. Employers mistakenly believe that they can manage to fire an employee who has informed about pregnancy verbally, i.e., without providing certificates. However, judicial practice shows something slightly different.

So, based on Part 3 of Art. 11 of the Code of Civil Procedure of the Russian Federation and applying the norms of the International Labor Organization Convention No. 183 and Art. 261 of the Labor Code of the Russian Federation, the Moscow City Court issued an appeal ruling dated October 22, 2015 and overturned the decision of the Khoroshevsky District Court of Moscow in case No. 33-35618/2015, which refused to recognize the illegality of the plaintiff’s dismissal, ordered the employer to reinstate a voluntarily dismissed employee who was able submit a certificate of pregnancy only the next day after dismissal.

Another mistake an employer makes is accepting statements written by proxy. TC does not provide such an opportunity.

This position was reflected in the cassation ruling of the Moscow City Court dated February 14, 2013 No. 4g/5-595/13, which upheld the decisions of the courts of the first and second instances, which recognized the illegality of dismissal by proxy. The ruling of the Moscow City Court dated March 4, 2011 in case No. 33-5838 is similar. In addition, the cassation ruling of the St. Petersburg City Court dated November 2, 2011 No. 33-16328/2011 supported the position of the court of first instance, which recognized the dismissal by proxy as forced, since the application for voluntary dismissal was written by the employee’s wife, who feared her husband’s dismissal on defamatory grounds.

In conclusion, it remains to be said that most illegal dismissals at will involve coercion. However, employees, not being able to prove such facts, usually look for other grounds for declaring their dismissal illegal.

Dismissal is a routine job for an experienced HR manager. Some employees leave of their own free will, others at the “request” of the employer. In any case, for each reason there is its own procedure. Strict compliance with it is aimed, on the one hand, at protecting the rights of hired personnel, and on the other, at protecting organizations from unfounded claims of former employees. Let's look at how to fire an employee in compliance with all necessary formalities.

Dismissal options

Labor legislation provides for 3 options for dismissal:

• at the request of the employee;
• at the initiative of the employer;
• by agreement of the parties.

The employee’s own desire is the most common basis for terminating a relationship with the employer:

1. The employee writes a letter of resignation indicating the date.
2. The employer is obliged to satisfy this request.

As a rule, there are no difficulties with registering dismissal at the initiative of an employee. The exception is issues related to mandatory “working out”. The standard is 2 weeks, which the employee continues to work from the moment the application is submitted.

Certain categories of personnel have the right to a reduced period of notice of dismissal. This must always be kept in mind, since the “unexpected” departure of such an employee is not an excuse for an organization that did not manage to pay the resigning employee in time and issue him a work book.

The employer's initiative involves a more complex dismissal process. If this is a reduction in staff or liquidation of a company, the procedure is clearly described in the legislation and does not pose any problems from the point of view of documentary support. The main task here is to notify all interested parties in advance in the manner and within the time limits established by the Labor Code of the Russian Federation.

When it comes to dismissing an employee unilaterally by the organization, the employer’s “freedom” is clearly limited: desire alone is not enough for this. There is a list of reasons for which an employee can be fired, and a special procedure for recording violations for each of them. There are no documented misconduct by the employee - there is no reason for dismissal.

A “compromise” option for terminating the employment relationship is an agreement between the parties. In this case, the employer and employee amicably agree to part ways under certain conditions. Most often it looks like this: the organization is interested in dismissing an employee without the risk that he will change his mind and withdraw the application “on his own.” The employee “bargains” to receive monetary compensation for his care.

Dismissal at the request of an employee

An employee has the right to terminate the employment relationship at any time. To do this he needs:

• fill out an application for resignation of your own free will 2 weeks before leaving;
• work the assigned days;
• complete the transfer of affairs to another employee, if such a procedure is provided in the organization.

It does not matter what contract was concluded when entering the job - fixed-term or indefinite. In any case, the employee’s desire is decisive, and the employer has no legal grounds to interfere with him.

The application is written addressed to the manager with the wording: “I ask you to dismiss me at my own request, “XX” month in words XXXX year”, the current date and signature.

If an employee leaves without working, he must include in the application the reason for dismissal:

• retirement;
• enrollment in studies;
• moving to another area;
• transfer of a spouse to another duty station/abroad;
• violation of the law, terms of the employment contract by the employer.

In such cases, dismissal occurs on the date specified by the applicant. If required, a supporting document (certificate from the institute, transfer order, etc.) must be attached to the application. An employee can leave “one day” without a good reason if the employer meets him and allows him not to work.

Without observing the two-week period, you can dismiss an employee on vacation if he submitted an application before it began or during the vacation, but no later than 14 days before going to work. Then the first working day after vacation will be considered the date of termination of the employment contract.

Employees on a probationary period, signed under a fixed-term employment contract for a period of up to 2 months, and seasonal workers work not the standard 14, but only 3 days.

From the employer's perspective, the procedure for voluntary dismissal looks like this:

• receipt of an application endorsed by the head of the company;
• creating an order;
• making an entry in the work book;
• full settlement with the employee regarding wages;
• preparation of documents necessary for further employment (2-NDFL certificates, certificate of earnings for 2 years and others, at the request of the employee).

Whatever the reason for leaving, the personnel documents will indicate the same reason under which article to dismiss the employee - Art. 77 Labor Code of the Russian Federation. On the day of dismissal, the employee reads the order and receives a work book. Until this moment, a person can change his mind and withdraw the application if a replacement has not yet been invited to take his place, which “cannot be turned back.”

Dismissal by agreement

The agreement of the parties implies a quick and simple dismissal procedure:

1. If the initiative comes from the employee, he submits a letter of resignation to the manager.
2. If an employer “asks” an employee to leave the company, he sends him a written offer.
3. The parties discuss the terms of termination of the employment contract.
4. The organization and the dismissed person sign a bilateral agreement.
5. The HR department issues an order and fills out a work book. The basis for dismissal is clause 1 of Article 77 of the Labor Code of the Russian Federation.

The agreement is the best option for both parties in terms of opportunities and compliance with legal rights. The employer can, by agreement with the employee, dismiss him on any day, even if he is on vacation or sick. A quitter cannot “change his mind” and cancel a signed document unilaterally. The employee is also not offended - during the negotiation process, he has the right to protect his material interests and demand compensation.

Dismissal at the initiative of the organization

The initiative to terminate the employment relationship may come from the employer for purely economic reasons - the need to reduce the number of employees or completely close the organization. In the second case, all personnel are expended; in the first case, the units and positions that are being laid off are expended, with the exception of those categories of employees who cannot be laid off by law.

If it is necessary to get rid of a specific person, as they say, “under the article”, the employer is obliged to prove that the employee is not suitable for the position held or that he has committed misconduct in labor discipline. Most often, dismissal occurs for absenteeism, appearing at work drunk, systematic violations with disciplinary punishment.

To avoid infringement of the rights of personnel, legislators did everything to ensure that a person could not be fired without good reason. It is quite difficult to “prosecute” an employee towards whom his superiors have a personal enmity, although abuse on the part of employers cannot be completely ruled out.

Reduction of staff and liquidation of the company

Reduction has a clearly regulated process for dismissing part of the staff:

1. The decision on reduction made at the enterprise is fixed by order. For the personnel service, this is the basis for starting the notification procedure. The information that is important for employees in this case is the date of reduction and changes in the staffing table.
2. 2 months before the date of layoff, all employees subject to it are notified in writing and signed.
3. The employer is obliged to offer the employee another position if such a possibility exists. A transfer is issued for people who agree to the proposed vacancies. The rest are preparing to retire.
4. The notified employee has the right to leave early without waiting for the layoff date. If a person who has learned about the impending dismissal has found a new job, the employer must let him go freely. Early dismissal does not deprive the employee of compensation for the days remaining before layoff.
5. 2 months before the layoff, management must notify the trade union body, if there is one. In case of mass layoffs of workers - 3 months in advance, and also submit lists to the employment service.
6. A dismissal order is prepared for each employee (form T-8) with reference to the basis document. The order is sent to the person being dismissed for signature.
7. An entry is made in the work book indicating the reason for dismissal - clause 2, part 1 of Art. 81 TK.
8. The full calculation includes: wages, monetary compensation for accumulated vacation days, severance pay in the amount of the average salary.

Dismissal due to staff reduction does not apply to certain categories of employees:

• pregnant women and women on maternity leave;
• single mothers with children under 14 years old, with a disabled child under 18 years old;
• trade union members and workers speaking in negotiations with the employer on behalf of the team.

When one of several equivalent positions is eliminated, the choice of workers to leave and who to stay falls on the employer. However, even here the authorities are deprived of complete freedom. All other things being equal, preference should be given to the most qualified specialists. If it is difficult to determine which of the workers is “more important,” the legislation gives some of them a priority right to keep their jobs. This:

• persons with 2 or more dependents;
• the only breadwinners in the family;
• received injury or occupational disease from this employer;
• disabled participants in combat operations;
• improving qualifications on the job;
• other categories provided for in the collective agreement.

These workers are the last to be laid off. You cannot fire an employee if he is on sick leave or on vacation. To lay off temporarily disabled people and vacationers, you will have to wait until they return to work.

All these exceptions do not apply if the organization is completely liquidated. The liquidation procedure is practically no different from layoffs, except for one thing: all personnel of the organization are deprived of their jobs, regardless of position, qualifications and social status. Employees who in normal situations have “immunity” from dismissal (pregnant women, single mothers, etc.) do not have any benefits during liquidation. The employer does not offer anyone a transfer to another position, since it is completely ceasing its activities.

Dismissal of labor discipline violators and unfit workers

An employee who systematically violates discipline causes management to understandably want to get rid of him. Labor legislation allows you to dismiss an employee immediately only for a gross disciplinary “crime”:

• absenteeism;
• presence at work in a state of intoxication (alcohol, drugs), confirmed by a medical examination;
• disclosure of information protected by law (state, commercial secret), proven in court;
• theft, embezzlement, material damage to the employer or a third party, recognized by the court;
• violations of labor protection rules with serious consequences;
• loss of confidence for those working with money and commodity values;
• immoral behavior for teaching staff;
• presentation of false documents when applying for a position.

Dismissal for a single gross violation is a disciplinary sanction. The procedure for its registration includes:

1. Detection of violations.
2. Recording the offense (drawing up a report, protocol, examination, conducting a medical examination, etc.).
3. Receiving written explanations from the offending employee.
4. Consideration of the circumstances of the case.
5. Drawing up a dismissal order in the T-8 form, with references to supporting documents (acts, reports, explanatory notes, court decisions, etc.) indicated as the basis.
6. Bringing the order to the employee for signature.
7. Making an entry in the work book indicating the relevant article of the Labor Code of the Russian Federation.

For example, how to fire an employee for absenteeism: if a person is absent from work for the entire day or 4 hours in a row, it is necessary to document this fact and prove that the employee was not there without a good reason.

Until an explanation is received from the “truant”, the “presumption of innocence” applies. The employee could be on leave, vacation, on sick leave, be summoned to court, get into an accident on the way to work, etc.

If the employee has not received any clear explanations or supporting documents (certificate of incapacity for work, subpoena, traffic police report, etc.), the offense is regarded as a gross violation of labor discipline and is qualified under Art. 81 Labor Code of the Russian Federation, part 1, clause 6, subparagraph “a”. This basis will be recorded in the dismissal order and in the work book.

List of documents confirming the legality of such dismissal:

1. Report of absence from work.
2. Explanatory note from the employee or an act of refusal to provide explanations.
3. Order of disciplinary action/dismissal.

If the employer violates this procedure, even if he has good grounds for dismissing the truant, the “offended” employee has every chance to be reinstated through the court.

It is also possible to fire a person for minor violations, but for this he must have several officially issued penalties (warning, reprimand, severe reprimand). Orders confirming “chronic” indiscipline may collectively serve as grounds for severing employment relations.

Another “touchy” question for employers is how to properly fire an employee who, in the opinion of management, is not suitable for the position held. There is no other option other than arranging a certification for an incompetent employee. It is necessary to issue an order, create a certification commission and evaluate a person’s professional suitability based on clearly established criteria. Unsatisfactory certification results are a reason for transferring an employee to another position. Most likely, he will refuse, then you can formalize your dismissal with the wording “due to inadequacy for the position held.” The period within which the employment contract must be terminated is no later than two months after certification.

When disputes arise related to wrongful dismissals, the courts often side with employees. The reason is simple: it is a rare organization that can boast of perfect order in internal regulations and personnel documents. The absence of schedules, job descriptions, provisions on certification and labor regulations, an illiterate employment contract, “missed” steps when initiating dismissal - all this can serve as evidence that the dismissal was carried out in violation of the law.

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 a disciplinary sanction.”

The employee’s failure to comply must be repeated and without good reason. Moreover, the employee must already have been subject to disciplinary action.

According to Article 192 of the Labor Code of the Russian Federation, a disciplinary act is the failure or improper performance 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 put them 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 unsuitability is a discrepancy between the professional qualities of an employee and 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 of the organization. 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 to recover in favor of the employee monetary compensation for 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 important rules especially for job seekers - 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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