Labor Code, N 197-FZ | Art. 81 of the Labor Code of the Russian Federation
The employment contract may be terminated by the employer in the following cases:
1) liquidation of the organization or termination of activity by an individual entrepreneur;
2) reduction in the number or staff of employees of the organization, individual entrepreneur;
3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;
4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
6) a single gross violation of labor duties by an employee:
a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;
c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate 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) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;
7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
7.1) failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or inaccurate information about his income, expenses, property and liabilities of a property nature, or failure to provide or provide knowingly incomplete or inaccurate information about income, expenses, on the property and property obligations of their spouse and minor children, opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse (wife) and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to loss of confidence to the employee by the employer. The term "foreign financial instruments" is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 "On the Prohibition of Certain Categories of Persons from Opening and Maintaining Accounts (Deposits), Keeping Cash and Valuables in Foreign Banks Located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments";
8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unreasonable 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 misuse or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) presentation by the employee to the employer forged documents when concluding an employment contract;
12) is no longer valid. - Federal Law of June 30, 2006 N 90-FZ;
13) provided employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
The procedure for conducting attestation (paragraph 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of employees.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or a lower paid job) which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit organization located in another locality, the termination of employment contracts with employees of this unit is carried out according to the rules provided for in cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the guilty actions that give grounds for the loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.
Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of paragraph 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On Combating Corruption".
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1. The commented article provides a list of grounds for termination of an employment contract at the initiative of the employer. It contains both grounds that apply to all employees, and grounds that apply only to a certain category of workers.
Part 1 of the commented article contains 12 specific grounds for termination of an employment contract at the initiative of the employer, enshrined in the relevant paragraphs.
1.1. Clause 1 - liquidation of the organization or termination of activity by an individual entrepreneur. Labor legislation does not give the concept of "liquidation of an organization", and, applying the norm of paragraph 1 of the commented article, it is necessary to use the provisions of the Civil Code of the Russian Federation, which determines the procedure for the creation, transformation and liquidation legal entities.
Article 61 of the Civil Code of the Russian Federation provides that the liquidation of a legal entity entails its termination without the transfer of rights and obligations by way of succession to other persons, with the exception of cases provided for federal law.
In accordance with the said article, a legal entity may be liquidated:
By decision of its founders (participants) or a body of a legal entity authorized to founding documents, incl. in connection with the expiration of the period for which the legal entity was created, with the achievement of the purpose for which it was created;
By a court decision in the event of gross violations of the law committed during its creation, if these violations are of an irreparable nature, or the implementation of activities without a proper permit (license), or prohibited by law, or in violation of the Constitution of the Russian Federation, or with other repeated or gross violations of the law or other legal acts, or in the systematic implementation non-profit organization, incl. by a public or religious organization (association), charitable or other foundation, activities that are contrary to its statutory goals, as well as in other cases provided for by the Civil Code of the Russian Federation.
Legal entity, with the exception of an institution, state-owned enterprise, political party and religious organization, is also liquidated in accordance with Art. 65 of the Civil Code of the Russian Federation due to its recognition as insolvent (bankrupt). State Corporation or state company may be liquidated as a result of declaring it insolvent (bankrupt), if this is allowed by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if it is established by law providing for the establishment and operation of such a fund.
The basis for the dismissal of employees under paragraph 1 of Part 1 of Art. 81 may serve as a decision on the liquidation of a legal entity, i.e. a decision to terminate its activities without the transfer of rights and obligations by way of succession to other persons, taken in the prescribed manner (Article 61 of the Civil Code of the Russian Federation). As noted in the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2, a circumstance that is important for the correct resolution of claims for the reinstatement of persons whose employment contract was terminated due to the liquidation of the organization or the termination of activity by an individual entrepreneur (clause 1 part 1 article 81 of the Labor Code), is, in particular, the actual termination of activities by an organization or an individual entrepreneur, the obligation to prove which rests with the defendant (paragraph 28).
At the same time, it does not matter who and on what basis liquidates a legal entity that is an employer. The very fact of liquidation of the organization is important.
The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after an entry about this is made in the Unified State Register of Legal Entities (clause 8, article 63 of the Civil Code of the Russian Federation).
Termination of the employment contract on the basis of paragraph 1 of part 1 of Art. 81 is also made in the case when the activity of an individual entrepreneur ceases. The decision to terminate the activities of an individual entrepreneur may be taken by him, the court, as a result of declaring him insolvent (bankrupt), due to the expiration of the certificate of state registration, refusal to renew the license for certain types of activities.
The employee must be warned about the upcoming dismissal in connection with the liquidation of the organization, against signature, at least two months in advance. However, with the written consent of the employee, the employer has the right to terminate the employment contract with him before the expiration of the two-month period, paying him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal (part 3 of article 180 of the Labor Code - see. comments to it). For example, if an employee, with his written consent, quits a month after the notice of dismissal, then upon dismissal he must be paid additional compensation for one month (i.e. for the time left before the expiration of two months for which he was warned about layoffs). In the above norm, we are talking about additional compensation, i.e. on the amount paid in excess of the severance pay and the average monthly earnings retained for the period of employment.
According to parts 1 and 2 of Art. 178 of the Labor Code, employees dismissed in connection with the liquidation of the organization are paid a severance pay in the amount of the average monthly earnings, and they also retain the average monthly earnings for the period of employment, but not more than two months from the date of dismissal (with offsetting the severance pay). In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after the dismissal and was not employed by him (see commentary to Article 178 ). On guarantees and compensations to dismissed employees working for employers - individuals, see comments. to Art. 307.
Recognizing the legality of the dismissal of Timofeev SV on the grounds provided for in subparagraph "a" of paragraph 6 of part 1 of article 81 Labor Code of the Russian Federation, the courts of first and appellate instances proceeded from the fact that when considering the dispute, the fact that the plaintiff had committed absenteeism was established and the procedure for applying a disciplinary sanction to him in the form of dismissal by the defendant was observed ...
By order of the acting CEO OOO LUKOIL-Yugnefteprodukt dated June 16, 2016 No. dbO to Kunitsyna A.S. a disciplinary sanction was applied in the form of dismissal from the position held under clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason in the presence of a disciplinary sanction ...
Information about the failure of Skvortsov M.A. from familiarization with the order of October 16, 2015 No. 386-ls on his dismissal under clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation, an entry about which was made in the work book of Skvortsov M.A., there are no in the named act ...
The legislation provides for the grounds on which the tenant has the right to terminate. They are established by Art. 81 of the Labor Code of the Russian Federation. Let's take a closer look at the norm.
Dismissal under Art. 81 of the Labor Code of the Russian Federation is allowed when:
They are defined in paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. Gross violations of their duties by an employee include:
Termination of the contract upon liquidation and reduction under Part 1 of Art. 81 of the Labor Code of the Russian Federation is allowed in the absence of the possibility of transferring an employee to another job available to the employer, with the written consent of the employee. This may be a vacant position corresponding to qualifications, a lower or lower paid position. The state of health of the worker must be taken into account. The tenant, in accordance with part 2 of Art. 81 of the Labor Code of the Russian Federation, is obliged to offer the employee all vacancies that meet the above requirements, available in the area. The head must additionally offer work in another territory, if this is expressly established in
Termination of the contract on the grounds set out in clauses 7 and 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, when, as a result of guilty actions, the management of the enterprise has lost confidence in the employee, an immoral act was committed outside work or at the place of its implementation, but not related to the performance of duties, is allowed no later than 1 year from the date the violation was discovered. It is forbidden to terminate the contract during the period of vacation or stay on sick leave of an employee. The exception is cases of termination of the contract on the grounds established by paragraph 1 of Art. 81 of the Labor Code of the Russian Federation.
This ground for termination of the contract provides for paragraph 1 of Art. 81 of the Labor Code of the Russian Federation. There is no explanation of the concept of "liquidation of an enterprise" in the legislation. Accordingly, when applying the commented norm, it is necessary to be guided by the provisions of the Civil Code. Article 61, in particular, determines the procedure for the liquidation of an enterprise. It involves the termination of the company's activities without the transfer of duties and rights in the order of succession to other persons. Exceptions are cases specified by law. Termination of contracts with employees is carried out on the basis of a decision taken at a meeting of the company's participants. For direct dismissal, the fact of liquidation of the enterprise is important. In the event of disputes regarding the reinstatement of employees at work, the proof of the actual termination of the existence of the organization lies with the defendant. As for an individual entrepreneur, the appropriate decision can be made by him, the court (in connection with the recognition of his insolvency). The termination of the work of an individual entrepreneur may also be caused by a refusal to renew a permit to carry out certain activities, the expiration of a certificate of state registration.
Termination of relations with employees on the grounds established by paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, is allowed subject to a number of conditions. In particular:
Upon termination of contracts on the basis established in paragraph 2 of Art. 81 of the Labor Code of the Russian Federation, when determining whether an employee has a pre-emptive right to leave him at the enterprise, qualifications and labor productivity indicators are taken into account.
Art. 81, paragraph 3 of the Labor Code of the Russian Federation determines the reason for the impossibility of continuing the stay of a citizen in the state of the enterprise. The non-compliance of the employee implies his insufficient qualification, which is confirmed by the results of the certification. Grade business qualities employee is carried out in conjunction with the analysis of other evidence with the participation of a representative body of employees of the enterprise. The procedure for carrying out attestation activities is determined by federal legislation, as well as other regulations in the field of labor. Termination of the contract in accordance with the third paragraph of Art. 81 of the Labor Code of the Russian Federation is allowed provided that it is impossible to transfer an employee to another position with his consent.
Termination of the contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed with a certain category of workers. These include, in particular, the head of the enterprise, his deputies, as well as Ch. accountant. Other employees cannot leave due to a change of ownership. In this case, one nuance should be taken into account. Termination of relations under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed if the change of ownership has occurred in relation to the property of the entire enterprise as a whole. FROM officials above, the contract cannot be terminated if the jurisdiction/subordination of the enterprise has changed without fulfilling the main condition.
In case of repeated violations of discipline, termination of the contract with the employee is allowed if he has a penalty for previously committed misconduct. Sanctions are provided for an employee for failure to fulfill his duties established in the rules of procedure or contract. In the event of disputes over dismissal for committed violations, the head of the enterprise must prove that the misconduct was actually committed and could become the basis for terminating the relationship. In this case, the employer is obliged to comply with the deadlines specified in Art. 193 TC.
Clause 6 of the commented norm establishes cases in which an employee may terminate the contract if he commits a gross misconduct once. The list of violations is considered to be exhaustive. In some enterprises, the activities of personnel are associated with confidential information. Dismissal for its disclosure is allowed subject to a number of conditions. In particular, the corresponding obligation should be established in the contract, specific information that is not subject to public disclosure is defined, the information was entrusted to the employee in connection with the performance of his duties.
Dismissal of employees should be carried out exclusively on the grounds established by law. In this case, the employer is obliged to comply with the rules and deadlines. In particular, the head of the enterprise must notify the staff of upcoming events in writing against signature, issue an order / instruction. Equally important is the observance of the requirements of the law regarding payments to retiring employees.
What is new, useful or interesting about this article? How can it be useful to people who have been relieved of their posts?
In 81 st. Part 1 of the Labor Code of the Russian Federation has several paragraphs and parts that describe various reasons why an employer can terminate an employment relationship.
The reasons for which you can make a dismissal at the initiative of the employer include the following points:
There are 12 points in total, it is worthwhile to separately analyze the dismissal under article 81 point 6 and termination labor relations at the initiative of the employer in paragraph 7 of Art. 81.
The dismissal described in paragraph 6 occurs on the basis of a gross violation, these include:
Article 81 provides reasons why the management of an organization can be fired:
The higher authorities (general president of the company or his deputy) issue an order to dismiss the heads of the organization.
Citizens who are in the public service and have access to classified information of the state may be dismissed, according to clause 6 on the reason for disclosing a secret of national importance.
When dismissed at the initiative of the employer, according to statistics, it turns out 28% more often than offenses in relation to the worker.
The first rule is that you cannot fire an employee while he is on sick leave or on vacation, in which case you can fire him on the first day the employee is at work. Read important information about this issue.
It is impossible to dismiss in most cases the following categories of workers.
Sometimes temporary employees are invited to resolve labor disputes. They can be dismissed only for gross violations, and the decision is made by higher authorities.
The process of termination of employment begins immediately with a dismissal order, which is based on various reasons.
If it is not important for the authorities how to carry out the dismissal, they may agree to dismissal by agreement of the parties or by an application for resignation at the initiative of the employee.
In other cases, the beginning of the dismissal should occur in this way.
| Violation | Features of dismissal |
| absenteeism | A disciplinary sanction is provided for within 30 days after the discovery of the misconduct. For one absenteeism, a reprimand is put, for a repeated violation, dismissal is threatened. Recovery can be issued in the form of a fine or an order to dismiss. An entry is made in the labor record from clause 6 of article 81. |
| Multiple non-fulfillment of duties by the employee. | Enough 2 offenses during the year, the third - fired. In the labor record in accordance with paragraph 5 of clause 81 of article |
| Toxic intoxication of an employee. | A commission of 3 people is assembled, which confirms the inappropriate condition, then they are sent for a medical examination. After that, they draw up a dismissal order. |
| Position mismatch. | At the same time, it is necessary to provide an easier position, if the employee refuses, the dismissal process begins. |
In case of theft or other offense, it is necessary to obtain a court decision; without this document, the employee's dismissal process is not legal.
As practice shows, litigation for wrongful dismissal, when the initiator is the employer, is carried out most often. At the same time, depending on the basis, the results differ significantly.
In the event that an employee constantly skips work or comes to work in a state of intoxication, with a violation of the dismissal procedure, the court takes the side of the dismissed person in about 87% of cases.
Oddly enough, it is much easier to prove the wrongfulness of dismissal actions than to prove the innocence of an employee in the actions that resulted in him being fired.
If, upon dismissal, an employee noticed any wrong actions, you should immediately contact the prosecutor's office or the court.
Higher instances can decide the plaintiff's question in the following way:
In any case, the one who was fired illegally has the right to demand moral compensation.
The dismissed person does not have to pay anything when he files a statement of claim in court, this obligation is transferred to the organization in which the person worked.
Dismissal at the initiative of the chief - difficult process, for the conduct of which in the first place it is necessary to monitor him himself. In the event of an incorrect dismissal, even the wrong employee can be reinstated at the enterprise, and the organization will pay not only the amounts for forced absenteeism, but also penalties for violations of the law.
In accordance with subparagraph "b" of paragraph 6 of part 1 of Art. 81 of the Labor Code Termination of an employment contract is provided for only in the event that an employee appears at work in a state of alcoholic, narcotic or other toxic intoxication.
When considering civil cases on the reinstatement of an employee whose employment contract was terminated at the initiative of the employer, in particular, when resolving a dispute on termination of an employment contract in the Russian Federation, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal of an employee rests with the employer.
The reasons for initiating the measures provided for by law to terminate the employment contract are facts and information about the use of alcoholic beverages, the use of narcotic or toxic substances, an employee of an organization or enterprise, an employee who was in working time in the place of performance of labor duties in a state of alcoholic, narcotic or other toxic intoxication, or on the territory of this organization, or he was on the territory of the facility where, on behalf of the employer, he had to perform a labor function.
In accordance with paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation", the state of alcohol or drug or other toxic intoxication can be confirmed both by a medical report and other types of evidence , which must be assessed accordingly by the court resolving the dispute on termination of the employment contract on subparagraph "b" of paragraph 6 of the first part of Article 81 of the Labor Code Russian Federation.
In view of the foregoing, the primary task of the employer is to obtain an evidence base for finding an employee in a state of alcoholic, narcotic or other toxic intoxication. In the event that an employee disputes dismissal due to subparagraph "b" of paragraph 6 of the first part of Article 81 of the Labor Code RF its first priority is to challenge the relevant evidence presented by the employer to the court.
Since March 26, 2016, the procedure for conducting a medical examination for the state of intoxication of an employee, as well as for all other citizens of the Russian Federation, is determined by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 933n "On the procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic)" and includes: a) examination by a specialist doctor (paramedic); b) the study of exhaled air for the presence of alcohol; c) determination of the presence of psychoactive substances in the urine; d) study of the level of psychoactive substances in the urine; e) study of the level of psychoactive substances in the blood.
A medical examination of an employee who appears at work with signs of intoxication is carried out on the basis of a referral from the employer.
After the personal data of the person being examined is indicated in the Act, the medical examination in all cases begins with the first examination of exhaled air for the presence of alcohol, after which the specialist doctor (paramedic) collects complaints, anamnesis and examination in order to identify clinical signs of intoxication, provided for in Appendix No. 2 to The procedure for conducting a medical examination for the state of intoxication (alcoholic, narcotic or other toxic).
During a medical examination of an employee and in the presence of at least three clinical signs of intoxication, provided for in Appendix No. 2 to the Procedure for conducting a medical examination for intoxication (alcoholic, narcotic or other toxic), and a negative result of the first or repeated examination of exhaled air for the presence of alcohol, a biological sample is taken object (urine, blood) to be sent for chemical-toxicological research in order to determine the means (substances) or their metabolites (except for alcohol) that caused intoxication.
Based on the results of the examinations and instrumental and laboratory studies carried out as part of the medical examination, one of the following medical conclusions is issued on the condition of the person being examined at the time of the medical examination:
1) a state of intoxication has been established;
2) the state of intoxication has not been established;
3) the person being examined (the legal representative of the person being examined) refused the medical examination.
It is obvious that the examination of medical documents and other types of evidence of the state of alcoholic or narcotic or other toxic intoxication and the correct assessment of the medical report and evidence in general occupy a key place in resolving a dispute on termination of an employment contract on subparagraph "b" of paragraph 6 of the first part of Article 81 of the Labor Code Russian Federation.
Our specialists will help you to prepare in a timely and correct manner for court hearings to resolve a dispute on termination of an employment contract for subparagraph "b" of paragraph 6 of part 1 of article 81 of the Labor Code Russian Federation, will conduct a detailed and competent analysis of the case materials and provide the necessary qualified assistance in compiling the required documents for the court.
Any company can cease to exist at some point. According to Article 81 of the Labor Code, the head of the organization may initiate the termination of the employment contract. However, there are some points that the employer must comply with.
Labor Code 81 article dismissal
The article, which is assigned number 81 in the labor code, states that the employment contract is terminated at the initiative of the employer. According to the labor code, dismissal under article 81 can be divided into several separate cases. They can affect any employee, no matter what position he holds. On the one hand, it seems that with the help of this article, the employer can get rid of any employee who is objectionable to himself. In reality, things may look very different. The first paragraph of this article states that an entrepreneur can initiate the termination of an employment contract if the organization ceases its activities. Before terminating the contract, the entrepreneur must follow certain rules. First, he must notify the employee about the upcoming reduction. This must be done at least two weeks before the date of dismissal. If the employee gives consent, then he can be fired even before the date of dismissal.
An entrepreneur can fire an employee who does not correspond to the position he occupies. The reason for the reduction may also be an insufficiently high level of qualification of the employee.
Dismissal by reduction article 81
According to article 81, when dismissing for a reduction, the employer must take into account the following points:
If the employer offers another vacancy, then it is worth considering the fact that the new position may be associated with lower qualifications. There may also be a lower wage. In more rare situations, the employee may also have to move to another area. The management of the enterprise is not obliged to offer a higher paid job.
Paragraph 5 of the article states that an employee may be fired for repeatedly violating his labor duties. If there are more than one such cases, then the employee may be fired in accordance with this article. At the same time, the employer must comply with certain rules. If more than a month has passed after the employee violated his labor obligations, the employer does not have the right to punish him with dismissal. Another condition is that the employee must commit another misconduct no later than 12 months after the first one. In order to be able to prove the violation of the employee, the obligations must be spelled out in the labor instruction.
Dismissal under article 81
In some cases, an employer can fire an employee even if he has not committed any previous misconduct. Dismissal under article 81 paragraph 6 may take place if the employee has committed one of the following violations:
The violation must be fixed, otherwise it cannot serve as a basis for reduction. To do this, it is necessary to draw up an appropriate act. If any misconduct has been committed, the employee must provide an explanation in writing. The employee has 2 days to do this. An employer can fire an employee only if the misconduct is not justified or the excuses do not seem convincing. In the event of a reduction in accordance with paragraph 6 of the article, the employee cannot count on monetary compensation. The only compensation is due for days unused vacation. Dismissal under this paragraph also implies the fact that
Art. 81 of the Labor Code of the Russian Federationcontains not only a list of grounds on which an employer can initiate the dismissal of an employee, but also a number of basic rules for the application of these grounds. Consider the issues that take place when terminating an employment contract initiated by the employer.
The reasons for layoffs given in Article 81 of the Labor Code of the Russian Federation can be divided into the following groups:
You can also highlight among them those that will correlate:
For any of the cases of dismissal under Article 81 of the Labor Code of the Russian Federation, it is necessary to have a documentary justification for its application and compliance with certain procedures preceding the termination of the employment agreement. It is forbidden to dismiss an absentee good reasons(vacation of any kind, sick leave) of the employee.
The inadequacy of the position and the guilt of the employee must always be proven and preliminarily considered, taking into account extenuating circumstances. In case of downsizing and recognizing the inconsistency of the position, the employer, before dismissing the employee, must try to employ him at his place.
A complete picture of the dismissal procedure due to the liquidation of the employer or in connection with the reduction of his staff, reflecting the whole variety of possible situations, emerges only as a result of the analysis of several articles of the Labor Code of the Russian Federation. Since there is no fault of the employee in the upcoming dismissal, conditions must be created that maximally mitigate its consequences for the employee. In this case, the employer bears significant material costs.
The fact that the employee will be dismissed in connection with the liquidation or reduction, he is notified in writing and in advance, no less than:
An employee who is to be laid off is offered in writing the vacant positions available to the employer and is fired only if he refuses them.
Dismissal on both given reasons is accompanied by the payment of a severance pay, the purpose of which is to pay the dismissed employee the time that is considered sufficient by law to find a new job:
If a full-time employee agrees to quit before the end of the 2-month notice period for the upcoming dismissal, then he will have the right to receive not only a mandatory severance pay (Article 178 of the Labor Code of the Russian Federation), but also an additional one (Article 180 of the Labor Code of the Russian Federation). The amount of the additional allowance will be determined from the same average daily cost as the mandatory allowance, but other working days will be paid: those that make up the gap between the date of the actual dismissal and the date of completion of the 2-month notice period for the upcoming dismissal. They will pay him on the day of dismissal.
Also, upon dismissal, a mandatory allowance is paid, which will be paid in full to the employee who was hired for the season (for 2 weeks allotted to look for work), and to the former full-time employee - only for the next full month. Further receipt of severance pay by a former full-time employee will occur as follows:
A situation may become quite real when a participant (founder) of a liquidated legal entity is at the same time its head and remains the only employee. The procedure for organizing his own dismissal should be as follows:
Read more about the composition and procedure for compiling the balance sheet in the material "Balance sheet (assets and liabilities, sections, types)" .
An employee may not be able to cope with the work assigned to him for several reasons, for example:
In both cases, the employee is not at fault. But if in the second case his unsatisfactory work cannot be considered a discrepancy, then the first just falls under this definition.
It is possible to recognize an employee as inappropriate for the position if there is at the same time:
If recognition has taken place, the employee must be offered in writing a vacant position corresponding to his qualifications or a lower one. If the employer does not have one or the employee refuses it, then he can be fired.
This ground does not apply to:
When for some reason the application of this ground is unacceptable, you can use the dismissal procedure for systematic disciplinary offenses under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, consistently applying to the employee all types of existing disciplinary action.
Read more about the existing types of disciplinary punishments in the article. "Types of disciplinary sanctions under the Labor Code of the Russian Federation" .
The dismissal of an employee when he commits the only gross disciplinary offense related to work is possible immediately, bypassing educational measures of influence (remark and reprimand). Such offenses are (Article 192 of the Labor Code of the Russian Federation):
Both paragraph 5 and paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, since the legislation does not oblige the employer to immediately resort to dismissal. To begin with, he can choose other measures to prevent the employee’s misconduct (remark or reprimand), and only if they turned out to be ineffective, the next decision of the employer for a repeated misconduct is dismissal.
The workplace of an employee is considered to be the one that is fixed in his employment contract. Therefore, it turns out to be quite difficult to make claims in terms of absence from the workplace to a person for whom both workplace the entire territory of the employer is determined. In this case, he, having appeared in this territory, may never go to his real workplace for the whole working day, and the employer will not have the right to accuse him of being absent there. For this reason, the accuracy of specifying the workplace in the employment agreement is of particular importance.
Working hours can be recorded in several documents:
On the copy of the employment contract with the employee, owned by the employer, there must be a record of the employee that he received his copy of the contract. With each of their other documents, if this document is related to a specific employee, he is introduced against signature. Thus, a set of documents is formed, indicating that the employee knows his workplace and mode of work.
In order for the employee not to be able to challenge the decision made on his dismissal due to absenteeism, it is necessary to pay extreme attention to the following circumstances:
Read more about the nuances of registration of such an act in the material. “How to draw up an act of refusal to write an explanatory note?” .
The dismissal of the head of a legal entity at the initiative of the employer is provided for by several paragraphs of Art. 81 of the Labor Code of the Russian Federation:
This paragraph makes a reference to other articles of the Labor Code of the Russian Federation and other laws of the Russian Federation. From the articles of the Labor Code of the Russian Federation, this includes dismissal:
Additional grounds for dismissal under Article 81 of the Labor Code of the Russian Federation (with comments from 2017) are provided for in the following laws of the Russian Federation:
Art. 81 of the Labor Code of the Russian Federation contains a direct ban on dismissal during the vacation period. However, there are exceptions to this rule, and they are associated with long holidays, which include parental leave. During this vacation, dismissal becomes permissible (Article 261 of the Labor Code of the Russian Federation) when:
