Often, employment relationships end with dismissal. How to properly fire an employee? What to do if you are fired against your wishes? We will consider these questions and many others in this article.

Undesirable employees

  1. agreement of the parties (Article 78 of the Labor Code);
  2. expiration of the employment contract (Article 79 of the Labor Code), except for cases where the employment relationship actually continues and neither party has demanded its termination;
  3. termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code);
  4. termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code);

If everything is clear on the first three points, then the last one causes a huge number of labor disputes.

Dismissal at the initiative of the employer is usually called dismissal “under article”, although there is no such concept officially in the Labor Code, and is most often used by unscrupulous managers to get rid of unwanted employees.

How does this happen? Most likely, you will first be asked to resign “of your own free will,” and if you refuse, they will be threatened with dismissal “under the article.” In most cases, the employee agrees to the first option in order to avoid conflicts and an unpleasant entry in the work book. But is the employer's threat really that significant? Is it really that easy to fire someone “under article”? Let's turn to the legislation.

According to the Labor Code, an employer can terminate an employment relationship in the following cases:

  1. due to an unsatisfactory test result (Article 71 of the Labor Code);
  2. liquidation of an organization or termination of activities by an individual entrepreneur (clause 1, part 1, article 8);
  3. reducing the number or staff of employees of an organization, individual entrepreneur (clause 2, part 1, article 8);
    Attention: About dismissal due to staff reduction (as well as during liquidation of the organization), the employer is obliged to notify the employees of the enterprise against receipt 2 months in advance and, at the same time, bring to the attention of the local employment service authority information about the upcoming dismissal of each specific employee, indicating his profession, specialty, qualifications and wages; inform the trade union body about this in writing, and if mass dismissal is expected - three months before the upcoming events.
    Certain categories of employees have a priority right to retain their jobs, all other things being equal: family citizens - if there are two or more disabled family members; workers who are the only breadwinners in the family and other categories - disabled people of the Great Patriotic War, etc. (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”) . According to Art. 179 of the Labor Code of the Russian Federation, when the number or staff of employees is reduced, the priority right to remain at work is given to employees with higher labor productivity and qualifications.
  4. inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by the results of certification (clause 3, part 1, article 81);
    Attention: According to Part 2 of Article 81 of the Labor Code, certification must be carried out in the manner established by labor legislation or other regulatory legal acts; or in the manner established in the local regulatory act of the organization, but in fact the certification procedure is not regulated by law (with the exception of certain categories of workers - library workers, aviation workers, rescuers, heads of unitary enterprises, etc.). So most organizations are guided only by local regulations. The results of the certification for each employee are formalized in a corresponding conclusion, which gives the employer the right to terminate the employment contract on his own initiative. It is also worth noting that dismissal on this basis is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower paid job), which the employee can carry out taking into account his state of health. At the same time, the employer is obliged to offer the employee all vacancies that meet the specified requirements that he has in the given locality (Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”) .
  5. change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant) (clause 4, part 1, article 81);
    Attention: The Plenum of the Supreme Court of the Russian Federation reduces the change of owner of an organization's property mainly to a change in the form of ownership (from state to private and vice versa; during privatization and nationalization, as well as from federal to property of constituent entities of the Russian Federation or municipal and vice versa). The new owner has the opportunity (but is not obligated) to exercise the right to dismiss the specified categories of management employees within a period of up to three months from the moment ownership rights arise. If the new owner decides to terminate the employment relationship, in accordance with Art. 181 of the Labor Code, he is obliged to pay compensation to the dismissed employee (not less than three average monthly salaries). In fact, this does not take into account that the new owner may not be the direct employer (Article 20 of the Labor Code), therefore this norm should not be interpreted literally.
  6. repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (clause 5, part 1, article 8);
    Attention: Such dismissal is considered disciplinary action. The employer must ask the employee for a written explanation before imposing a penalty. If such an explanation is not provided within two working days, then a corresponding act is drawn up. Lack of explanation is not an obstacle to applying disciplinary action. It is important to remember that disciplinary sanction is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees; but no later than six months from the date of the commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission. These deadlines do not include the time of criminal proceedings. For each disciplinary offense, only one disciplinary sanction can be applied.
  7. a single gross violation of labor duties by an employee (subparagraphs “a”, “b”, “c”, “d”, “e” clause 6, part 1, article 81):
    a. absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ;
    b. the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
    c. disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
    d. committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
    e. violation of labor safety requirements by an employee established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences;
  8. commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer (clause 7, part 1, article 81);
  9. the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81);
  10. making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81);
  11. a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81);
  12. the employee submits false documents to the employer when concluding an employment contract (clause 11, part 1, article 81);
    Attention: Documents on education (if the work requires special skills), work experience, and identity documents (passport) can be considered forged documents.
  13. provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization (clause 13, part 1, article 81);
  14. in connection with the conviction of an employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force (clause 4, part 1, article 83);
  15. in connection with the expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry a weapon, other special right), if this makes it impossible for the employee to fulfill his duties under the employment contract (clause 9 part 1 article 83);
  16. in connection with a violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (clause 11, part 1, article 77);
  17. in other cases established by this Code and other federal laws (clause 14, part 1, article 81).

It is unlawful to dismiss an employee during the period of his incapacity and during vacation (Part 3 of Article 81 of the Labor Code of the Russian Federation), as well as the dismissal of pregnant women, with the exception of dismissal during the liquidation of an organization (Part 1 of Article 261 of the Labor Code of the Russian Federation).

It is important to remember that the organization is obliged to pay severance pay in the amount of average monthly earnings when dismissing employees for health reasons or certification results, during liquidation, as well as when reducing the number or staff of the organization.

If you have been subject to an illegal dismissal procedure at the initiative of your employer, you should contact the district court at the legal address of the organization and write a statement within a month. After proving the wrongfulness/illegality of dismissal in court, the decision will be in your favor - the company will be obliged to pay the necessary compensation.

Common cases of reinstatement

The largest number of court decisions in favor of reinstatement of an employee dismissed at the initiative of the employer is associated with the discovery of a violation of the dismissal procedure provided for by law. For example:

  1. the dismissal was made for several different reasons at once;
  2. the dismissal was carried out contrary to the norms of the Labor Code, which prohibit the dismissal of employees on certain grounds, if they can be transferred to another job, as well as dismissal at the initiative of the employer during the period of vacation or temporary disability (Article 81 of the Labor Code of the Russian Federation);
  3. dismissal due to a reduction in the number or staff of employees was carried out without taking into account the rules establishing the preferential right to remain at work (Article 179 of the Labor Code of the Russian Federation);
  4. the dismissal was carried out without the participation of an elected representative trade union body of workers, if such is recognized as mandatory (Article 82 of the Labor Code of the Russian Federation);
  5. the employee was dismissed without complying with the requirements for warning upon dismissal due to the expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation);
  6. dismissal of a pregnant woman at the initiative of the employer, with the exception of cases of liquidation of the organization, as well as in connection with the expiration of a fixed-term employment contract before her right to maternity leave (Article 261 of the Labor Code of the Russian Federation);
  7. dismissal of a woman with a child under 3 years of age, a single mother with a child under 14 years of age (disabled child under 18 years of age), other persons raising children without a mother, on grounds not related to the employee’s guilty behavior, with the exception of the complete liquidation of the organization or termination of activity by the employer - an individual, as well as in connection with the inconsistency of the employee with the position held or the work performed for health reasons (Article 261 of the Labor Code of the Russian Federation);
  8. dismissal of an employee under the age of 18 at the initiative of the employer (except for cases of liquidation of the organization), carried out without the consent of the state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). This applies both to cases where the dismissal is carried out contrary to the opinion of these bodies, and to cases where the employer did not contact these bodies at all;
  9. dismissal of certain categories of workers contrary to prohibitions and restrictions (i.e. without compliance with the guarantees established for them), in particular, dismissal of a trade union member under clause 2; subp. "b" clause 3; clause 5 art. 81 of the Labor Code without taking into account the reasoned opinion of the elected trade union body (Article 373 of the Labor Code of the Russian Federation), as well as the dismissal on the specified grounds of the heads of elected trade union collegial bodies and their deputies who are not released from their main work, without the prior consent of the corresponding higher elected trade union body (Article 374 of the Labor Code of the Russian Federation) and former heads of elected trade union bodies and their deputies for 2 years after the end of their term of office (Article 376 of the Labor Code of the Russian Federation);
  10. dismissal at the initiative of the employer of employee representatives during the period of collective bargaining without the prior consent of the body that authorized their representation, with the exception of cases of dismissal for disciplinary violations (Article 39 of the Labor Code of the Russian Federation), as well as dismissal of employee representatives participating in the resolution of a collective labor dispute, without preliminary consent of the body that authorized them to represent (Article 405).

Rights and obligations

It is also important to note that the obligation to prove the existence of a legal basis, for example, in case of dismissal for absenteeism, and to comply with the established procedure for terminating an employment contract rests with the employer. But the judge places the responsibility of proving the valid reasons for absence from work on the employee.

Thus, according to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”) the general legal principle of the inadmissibility of abuse of rights, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal a temporary disability during his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of the organization (not lower than the shop and equivalent to it), not released from the main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, accordingly, with the prior consent of a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee.

Dismissal for drunkenness

What should an employer know in order to properly fire a drunkard? First of all, the employer’s procedure when an employee appears at the workplace in a state of alcoholic (drug/toxic) intoxication:

  1. Suspend an employee from work based on the order of the manager (no wages are accrued);
  2. Draw up an act on this fact, indicating the date and time of preparation, a description of the external signs of intoxication, and the signatures of several witnesses and the manager. If possible, obtain an explanation from the employee for what is happening or record a refusal to provide an explanation;
  3. Send the employee for a medical examination to a licensed narcologist;
  4. Receive written explanations from the employee when he comes to his senses, or draw up an act signed by witnesses refusing to provide explanations;
  5. Issue a dismissal order, familiarize the employee with it against signature within three days and give a copy.

Important details:

  1. union consent is not required unless a minor is being fired. In this case, it is necessary to obtain the consent of the state labor inspectorate and the commission for minors;
  2. You cannot fire a pregnant woman while intoxicated;
  3. You cannot fire an employee who is intoxicated if he shows up at work after hours;
  4. accidental intoxication (for example, toxic intoxication associated with toxic substances present in the workplace) cannot be grounds for dismissal.

conclusions

Thus, based on judicial practice and current legislation, dismissal “under the article” may be lawful if the employer complies with all formalities. Otherwise, it is necessary to go to court to reinstate the employee and collect wages or change the entry in the work book. If an employer, through threats of dismissal “under the article”, induces an employee to leave “of his own free will,” it is important to seek legal assistance in a timely manner in order to correctly defend his rights. Practice shows that when resolving labor disputes, court decisions are mostly made in favor of the employee. But in any case, it is better for the employee not to be brought to such a situation, while updating his resume on HeadHunter - hh.ua, and, in the event of conflict situations, always be prepared to change jobs.

Link

Recently, Russian insurance companies have adopted Western practices of insurance against job loss. In most cases, such insurance is not provided voluntarily, but at the insistence of banks, on a par with life insurance when issuing a loan. Depending on the concluded insurance contract, the risk of dismissal at the initiative of both the employer and the employee is covered.

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.

Most HR specialists, when hiring a new employee, study his work record. If an employee was fired from his previous place of work under the article, he may have serious problems with employment. Dismissal under an article is like a stigma that characterizes an employee as unreliable and, therefore, undesirable in the company. Someone, having received an unsightly employment record, despairs and thinks that they will no longer be able to find a good job. But a lot here depends on the field in which a person works, and on the specific employer, and on the applicant himself. What to do in such a situation, how to look for a new job, what to say at an interview?

A fatal entry in a labor record can appear for various reasons: a conflict with management, a real violation of labor discipline by an employee, or the employer’s reluctance to let the employee go. But we will not talk about these reasons, since HR specialists usually do not investigate these reasons.

"We will call you back"

Discussions about the abolition of work books in Russia have been going on for a long time, and HR specialists often speak out against the abolition, noting that the existence of work books helps maintain labor discipline. When employees care about their reputation in the labor market, they take their responsibilities much more responsibly. An experienced personnel officer, based on the information available in the labor record, can assess the reliability, discipline of an employee, his potential “dedication” to the organization, and he does not want to lose access to this information.

At the same time, for an employee whose work record shows dismissal due to an article, the search for a new job often turns into an entire epic. If rare and valuable specialists can afford such a record without major consequences for future employment, then everyone else in this situation has a very difficult time. As soon as it becomes known about dismissal under the article, the applicant receives a refusal without consideration or the standard phrase “we will call you back,” which is usually where everything ends. Why is this happening?

An entry in the work book about dismissal under an article, like a bright flashing red button, immediately informs the HR specialist that problems may arise with this employee in the future. The task of the personnel officer is to select the best specialist who best suits the requirements for the position, a specialist with whom unforeseen difficulties will not arise during the work process. Recruitment specialists, as a rule, do not want to take risks. After all, if the hired employee makes the same mistake again, the person who hired him will be held accountable for it.

For this attitude, many accuse HR managers of stereotypical thinking and lack of an individual approach, but they are just fulfilling their task - to make sure that every single cog in the company works properly and stably.

It is worth mentioning that a lot also depends on the area in which the laid-off worker has a job and on the situation on the labor market. It will be easier to find employment in mass-produced professions where there is usually a high staff turnover, but a qualified specialist looking for a job in a profession in which competition is noticeable will have virtually no chance.

How to find a job if you were fired for absenteeism?

It is difficult to give unambiguous advice in this situation. Even on specialized forums of personnel selection specialists, HR managers themselves advise applicants who have been fired due to the article to “lose” their employment and start all over again. Although this is not the only option available, many people take the path of least resistance and do just that. Let us only note that in this case, the accumulated experience reflected in the work book will “burn out.” In addition, you will have to lie to the employer, risking being caught in a lie: if you want to find out where the person actually worked and why he quit, the employer can.

The second option is to look for a job through an acquaintance. With such employment, there are usually no interviews; the employee does not need to compete with other applicants. In this case, you will neither have to get rid of documents nor lie to the employer. When you change jobs, the problem will arise again, but the dismissal under the article will be covered by a new entry, and getting good recommendations for acquaintance will not be difficult.

The third option, the most honest, but also the most difficult, is to look for a job, go to interviews and hope that one day the employer will accept the applicant for who he is. And in this case, a number of questions again arise: what to do so as not to receive refusals at the first contact with the employer, how to behave during an interview, how to explain the reason for dismissal under the article.

Everyone finds their own way out of the situation. Some work outside their specialty, while at the same time looking for a suitable job. One worker gets a job through an acquaintance, covering up the ill-fated entry in the employment record, another gets rid of this employment record altogether, taking risks, the third goes through many interviews.

For the latter, competitiveness in the labor market is a critical issue. You can become more competitive by persistently improving your professional level, or you can simply lower your desired salary. The only thing that is categorically not recommended to do in such a situation is to give up and think that your career is now over. You can always find a way out, it’s just that someone will take a shortcut, choosing a shortcut, and someone will go to the goal for a long time, gaining new experience. The choice always remains with the employee.

Interview difficulties

The first task of the applicant is to ensure that he is invited for an interview. Therefore, the reason for dismissal does not need to be indicated in the resume and, moreover, immediately reported to the employer in a telephone conversation. Each employee has advantages and disadvantages, weaknesses and strengths. It is generally not recommended to talk about your shortcomings during an interview if they are not asked about them.

To increase your chances, if possible, you should try to get an appointment not with the HR department, but directly with the employer, since in this case the approach to you will be more individual.

There is no point in talking about the reasons for recording your employment record unless you are asked directly about it. Any explanation will sound like an excuse and will not add any advantages to you. And if it contains negative and unflattering reviews about your former employer, most likely this will not be interpreted in your favor.

When answering the question about the reason for dismissal under the article, it is better to avoid unnecessary emotionality and explain everything briefly. An answer in the spirit of a twisted soap opera with former colleagues and bosses in the leading roles may seem interesting to the employer, but they will most likely prefer to refuse such an employee before he comes up with a new story about the new boss. Therefore, it is better to be concise: name the actual reason and add that you regret that the circumstances turned out this way. The ability to admit and correct a mistake is valued much higher than the ability to disguise it.

Understating your salary is an extreme option, since you risk not only earning less in the end, but also ending up with an employer who needs a “convenient, willing” employee. Your agreement to work for a lower salary than your colleagues is the first signal to the employer that you are just such a person. Another situation is working in a company or small firm, where salaries are lower and where mostly novice specialists come. An experienced employee can be hired into such a company, even despite a damaged labor record.

If the employer shows doubts, you can offer to hire you for a trial period to ensure your suitability for the job.

Anna Shevchuk

Dismissal under the article, as the Labor Code of the Russian Federation states, implies an initiative by the employer aimed at terminating the employment relationship with its subordinate. To dismiss from work under an article of the Labor Code of the Russian Federation, grounds that are factually confirmed and proven are required, otherwise negative consequences will occur for the employer. The reasons for such dismissal are enshrined in labor law and represent an exhaustive list that cannot be supplemented or changed at the initiative of the employer. Accordingly, dismissal under the article should always be based on three important points: the grounds, the procedure and the consequences that are provided for each party to the relationship.

Reasons for dismissal

To dismiss an employee under this article, it is necessary to have a clear understanding of when such a procedure can be carried out, and what grounds are provided for terminating the employment relationship without the consent of the employee. The law does not prohibit employers from deciding the fate of the people they want to fire in this way, but it should be remembered that the relationship under consideration is regulated in as much detail as possible, and each proposed action has its own norm, violation of which will entail an appeal to the labor inspectorate or even court .

To dismiss an employee means to terminate relations with him, however, for this there must be some legal facts, which will be the grounds enshrined in Article 81 of the labor law.

These include the following provisions:

If we talk in more detail about violations of labor regulations, then they mean:

Can they be fired for other reasons? According to the law, this list is not exhaustive. In some situations, the question of why to fire a person, whether his action is a sufficient basis for this, and what can be done as a result, is often decided by the Labor Dispute Commission.

To be dismissed, the person must be present at work. If he is on vacation or does not perform his duties due to temporary disability, then termination of the employment relationship is unacceptable.

Speaking about other reasons that may also serve as grounds for unilateral dismissal, it should be noted that such circumstances are considered exceptional. These include any violations of labor legislation, since the Labor Code of the Russian Federation directly establishes the possibility of referring to any of its norms if it is necessary to resolve a labor dispute, including regarding the dismissal of an employee without his consent.

Dismissal procedure

How to fire a person without his consent? Here, the employer’s initiative plays an important factor, which is necessarily supported by one of the grounds proposed by law. It is not prohibited to terminate any employment relationship with him or her without a voluntary statement from the person. However, in addition to the circumstances that make it possible to dismiss a person, it is necessary to remember about the procedure itself, which must take place in strict accordance with established requirements. If this rule is not followed, then the fact of dismissal itself will be invalid.

In order for the employer to avoid problems with the court in the future, he must promptly provide the employee with all documents and officially indicate the fact of dismissal.

The action plan for termination of employment with a person at the initiative of the employer represents sequential steps that must be completed in each specific case of dismissal:

  1. Establishing the reason for dismissal. Here it is necessary to attest to the fact of the violation. The method of recording will depend on what kind of offense was discovered. For example, intoxication must be actually identified and established; it is not enough to prove that the person drank alcohol that day, or theft at work will be a reason for dismissal only if there is a conviction following a trial.
  2. Employee warning. This step is mandatory, but its specifics will depend on what type of violation is detected. For example, when a company ceases its work, then it is necessary to notify the person two months in advance, and if the person does not work, skips work or has other similar offenses, then one month is enough.
  3. Familiarization of the employee with the notice of termination of employment relations with him. To do this, the employer is required to prepare an official document that will reflect the reasons for dismissal and their detailed explanation. The employee must sign such a document, this will confirm the fact that he has read the paper, even if he does not agree with such a decision. If a person refuses to sign a document, then it is drawn up again, but in the presence of witnesses who in the future could confirm the fact of refusal.
  4. Explanation from the employee. The employer has the opportunity to demand explanations about the offense that the person has committed. However, according to the law, the employee is not obliged to do this and can always refuse; this will not be recorded in any acts. At the same time, the absence of an explanatory note does not exempt a person from the disciplinary punishment imposed on him.
  5. Order of dismissal. Ideally, there should be two similar documents. One order must reflect the decision to impose disciplinary action, and the second order directly terminates any employment relationship. However, in practice, most often only the second version of the order is used without detailed instructions on the application of punishment. The employee must also read and sign the order, otherwise it will be a violation of his rights. In addition, the order must be accompanied by a calculation note, explanatory notes, if any, and other relevant documents.
  6. Recording in the work record and issuing it to the employee. You must pick up your work book on the day of dismissal. In it, the personnel officer writes a record of the fact of dismissal with a reference to the reason for which the relationship with the employee was terminated. When dismissing under an article, it is always precisely indicated which standard applies. When it comes to violations, Article 81, its specific part and the paragraph reflecting the type of offense should be indicated. The entry must be certified by the seal of the organization and the signature of the management, and the order number must also be indicated.
  7. Calculation. Even if a person is fired for misconduct, he still has the right to payments, which include wages for the period worked before the day of dismissal, as well as compensation due for unused vacation. Moreover, if a person missed several of his vacations, then compensation is awarded for each of them. When it comes to shutting down an entire company or laying off part or all of its staff, severance pay is also paid. Payments must be made on the day of dismissal, at which time the employer must pay taxes.

It is unacceptable to skip any of these stages; the presence of each specified document will confirm that the termination of the relationship is legal and the interests of the employee have not been violated, despite the reason for the dismissal.

Consequences

What to do if you were fired under an article, and what does such a decision threaten in the future for the dismissed person? The consequences may be different, but first of all, this is a damaged performance and difficulties that arise during subsequent attempts to get a job. However, depending on how the procedure was carried out and how justified the decision to terminate the employment relationship is, negative consequences may befall the employer himself. Often mistakes and violations of labor laws lead to material compensation, inspections and even changes in management.

Dismissal due to a compromising article is always considered a negative phenomenon; if in the future this is followed by a refusal to hire, then it cannot be considered illegal.

The very fact of indicating an article in the labor contract upon dismissal is not negative. It is always prescribed, even if the termination of the relationship occurs at the request of the employee himself. The only difference is in the rules of the law.

And it is precisely depending on the reasons and the articles of the Labor Code used, respectively, that the consequences for the person who has lost his job will be determined:

Accordingly, indicating an article in the work book does not always imply negative consequences for the person who lost his job. It all depends on the specific grounds and conditions for termination of the relationship in question.

If an employee does not agree with the decision made regarding the termination of his work, he can always challenge it first in the Labor Dispute Commission, and then in court.

Despite the free opportunity to protect one's interests as an employee, there is only a limited list of cases where a challenge is, in principle, permissible. Firstly, situations where the reason for dismissal is poor performance appraisal results. Here, challenging the results themselves is allowed, but only no later than ten days from the date of their announcement. Secondly, violation of the law by the employer himself. It is enough to prove that the dismissal procedure was illegal and groundless. And thirdly, cases of theft. If you challenge a verdict that finds a person guilty, you can also challenge the decision to stop working.

Thus, stopping work on an article does not always mean that negative consequences will occur. The dismissal option under consideration is associated both with the person’s personal desire to leave work and with the initiative of the employer, who, based on specific reasons, decides to get rid of the employee. The main thing is to follow the dismissal procedure and have reasons for such a decision, otherwise the actions of management will be challenged and will be invalid.