Technology of popular ways of dismissal

Methods and expert comments

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation. Most often, the reasons for such dismissals are discussed face-to-face, but some cases become public.

Natalia Plastinina, head of the legal support sector:

The reason for parting is not bad, but in most cases it requires additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation instructions for the payment of severance pay upon dismissal by agreement of the parties, long-term practice of solving difficult situation in labor relations showed that the employee agrees to such a “soft, smooth, but not included in his plans” separation only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee upon dismissal on the basis under consideration in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties negotiate the amount of this compensation at the level of 2-3 salaries, taking as a guideline the size of the severance pay in case of staff reduction. However, in special cases (dismissal of the head of any link) given size can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be "hooked" on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases are the dismissal of a truant or an alcoholic in those circumstances when the employer could not acquire sufficient evidence of the misconduct of employees and, therefore, could not risk-freely apply the basis for dismissal appropriate to the situation (subparagraph “a”, paragraph 6 of part 1 article 81 of the Labor Code of the Russian Federation and subparagraphs "b" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation). The most difficult thing is to find agreement with a category of employees specially protected by law who cannot be fired at the initiative of the employer (during certain periods of their activity), - pregnant women, persons with family responsibilities listed in Art. 261 of the Labor Code of the Russian Federation. These workers, being in a wounded state, are so afraid of losing a permanent job and not finding a new one that they refuse to enter into agreements on termination of the employment contract, despite the proposed compensation, and if such an agreement is signed, they go to the courts to challenge them due to a defect of their own will .

Thus, in addition to the material side of the issue, this ground has another disadvantage - a high risk of successfully contesting his dismissal by the dismissed employee. And practice knows cases of recognition by the court of an agreement to terminate an employment contract as illegal due to the lack of an expression of the will of the employee for this action (as an example, you can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case N 33-156), in which the court, having carefully studied the agreement drawn up by the parties, came to the conclusion that there was no real will of the employee to terminate the employment relationship, and there was only a desire to transform labor relations (the agreement contained the obligation of the employer to subsequently hire the employee again). In this regard, the court concluded that the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: cons of dismissal by agreement of the parties:

1. the employee may not agree to terminate the employment contract, despite the favorable termination conditions offered by the employer;
2. in most cases, termination on this basis will require the employer to voluntarily pay compensation agreed by the parties in the agreement to terminate the employment contract;
3. practice fixes a high risk of contesting the dismissal by agreement of the parties due to a defect in the will of the employee. There are cases of recognition of such agreements as illegal in judicial practice.

The agreement of the parties applies not when the employer cannot find a suitable article in the Labor Code of the Russian Federation, but when the employer soberly assesses the time and financial costs that the dismissal “under the article” may entail, if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best option termination of the employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if it is challenged by the employee.

I offer my clients such arguments that can help convince the employee of the need to sign an agreement on termination of the employment contract: bringing to the attention of the employee information that labor contract with it will be terminated, at best, the worker will be laid off. However, even a reduction is not the best reason to terminate the employment contract for demonstration to a future employer. Another matter is the agreement of the parties.

A potential employer will not see anything wrong with him;

• the agreement of the parties allows you to save the employee's time, which can be spent, for example, when reducing the number or staff;
• the agreement of the parties makes it possible to agree on the amount of "compensation" for the dismissal, as well as on the procedure for its payment.

Reduction of staff (clause 2 of article 81 of the Labor Code of the Russian Federation)

The applicant for dismissal must be provided with a list of vacancies corresponding to his competence - for example, a similar position, but in the regional branch of the company. If the employee refuses to move, a written refusal must be obtained from him. The employer is obliged to notify the employee in writing about the reduction at least two months in advance and not to open a reduced position during the year.

1. When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; fired ahead of time, defined h. 2 Article. 180 of the Labor Code of the Russian Federation; they dismiss the employee just in time, but during the period of his illness, which is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for the expression of consent to vacancies or refusal of them, they are already issuing a dismissal order; they do not care about the real basis for the reduction; they do not approve the new staffing table in time; they incorrectly apply the provisions of Art. 179 of the Labor Code of the Russian Federation on the pre-emptive right to remain at work; they make mistakes in the standard paperwork.

For these and other reasons, there is still a high risk of recognizing the layoff for redundancy as illegal and reinstating the employee at work, which is confirmed by numerous judicial practice.

So, for example, in a labor dispute, the court concluded that the employee was dismissed before the expiration of the two-month period established by labor legislation from the date of notification of the upcoming reduction. In this connection, the court recognized the dismissal of the plaintiff employee under paragraph 2 of part 1 of Art. 81 of the Labor Code illegal, reinstated the plaintiff in the organization in his previous position (decision of the Yugorsky District Court of the Khanty-Mansiysk Autonomous Okrug - Yugra (published on November 27, 2012).

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

Indeed, downsizing is one of the methods of dismissal, requiring strict adherence to procedures. The employee is notified in writing about the upcoming reduction 2 months in advance, during this time he must be offered in writing any vacant or newly created vacancy, the duties for which he can perform, taking into account his qualifications. It is important to offer not only similar positions, but also lower positions. But positions in other regions are offered only if it is enshrined in a collective agreement or other local normative act companies.

Also, one should not forget about the pre-emptive right to leave some categories of employees at work.

Absenteeism (signature “a”, paragraph 6 of article 81)

If an employee is absent from the workplace during the whole working day or for more than four hours in a row, the dismissal occurs automatically. It is more difficult to dismiss an employee who is often late, but this is also possible if the start time of work is specified in the internal labor regulations, in the employment contract, and also in the collective agreement, if there is one in the company.

Natalia Plastinina, head of the legal support sector:

We note right away that one can never expect such a reason from an average moderately responsible employee. Lateness does not form such a basis for dismissal as absenteeism, since the time the employee is absent does not reach 4 or more hours in a row. In addition, there is a high risk of incorrect recording of the event, incorrect qualification of absence as absenteeism, incorrectly drawn up documentation for the formation of the basis provided for in paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Cons of applying for dismissal on this basis:

• low probability of occurrence of the base itself;
• high probability of errors in the procedure for dismissal on the named basis;
• a high risk of contesting the dismissal due to its unfairness, illegality, as well as in order to exclude unseemly entries in work book;
• in those organizations where there is no full-time lawyer, and personnel records management is entrusted to the secretary, all the above risks of erroneous actions by the employer increase significantly. The risk of reinstatement of a dismissed truant also increases.

As practice shows, the regulatory authorities that check employers and may recognize the order to dismiss for absenteeism are not asleep.

What was done in Altai Territory by the State Labor Inspectorate. As a result of the check carried out on the basis of the citizen's appeal, the state labor inspector found that, in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not request a written explanation from the employee on the fact of absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. At the request of the state labor inspector, the dismissal order by the employer was canceled. For violation of labor legislation, the director was brought to administrative responsibility in the form of a fine.

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

Even if the employee was absent from work for the amount of time needed for absenteeism, he can hardly be automatically fired. In any case, this will require clearly following the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the restoration of the dismissed person with the accrual of payment for forced absenteeism.

Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation).

The employer has the right to change the job description of the employee, warning him for two months. Then, in additional agreements to the employment contract with the employee, the conditions are prescribed, on the basis of which the indicators are considered unfulfilled. The values ​​of indicators can be taken according to any schedule: once a week, month, quarter. If an employee fails to cope, he is reprimanded, severely reprimanded, and then fired.

Natalia Plastinina, head of the legal support sector:

Paragraphs 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation are two different grounds. The basis of paragraph 3 - “inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification” - is difficult to achieve in practice due to the actual non-occurrence of this basis. To apply it, the employer will first have to approve the local act on the certification (see part 2 of article 81 of the Labor Code of the Russian Federation), give employees time to prepare. Create a commission. Correctly record the order of its implementation and results. Give iron arguments of the inconsistency of the employee with the position held. And after that...

Offer the employee another job in his own company! This is required of the employer by part 3 of Art. 81 of the Labor Code of the Russian Federation. That is, all of the above actions may not lead to the end of the employment relationship if the employee agrees to be transferred to another position. Was the game worth the candle?

Clause 5, Part 1, Art. 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - “repeated non-fulfillment by an employee without good reason of labor duties, if he has disciplinary action". There are some flaws in the scheme for changing job descriptions described by Forbes magazine: will the employee challenge these changes in the future? If, for example, you include in the job description of a building maintenance engineer the obligation to sweep 4 production shops in the evening, it seems that the court will not recognize such a change as legal and justified. And he will point out to the zealous employer the correct guideline in this matter - ETKS. In addition, one should not forget about the systematic misconduct of the employee, which may no longer be formed after the first punishment.

And although both grounds may be applicable, but their elusiveness and high risk of contestation do not make them popular.

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

In this case, a strange construction is described, which has nothing to do with Russian law in general and with clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation in particular.

First, change job description- this is a change in the labor function of an employee, which is possible only by agreement of the parties. In this case, a warning for two or more months does not play a role.

Secondly, in order to sign some additional agreements to the employment contract, the will of the employee is necessary, without which agreements cannot appear. And if the employee refuses to sign additional agreements? Has the right to.

Thirdly, in order to apply such a basis as inconsistency with the position held (clause 3 of article 81 of the Labor Code of the Russian Federation), certification must be carried out, only a negative conclusion of the certification commission can be a reason for dismissal of an employee.

Non-compliance with the rules of internal labor regulations (Article 192 of the Labor Code of the Russian Federation)

Information about the ban on smoking, the need to comply with the dress code should be spelled out in the internal labor regulations, which are signed by all employees when they are hired. You need to understand that it is not enough for the employer to simply indicate “observe the dress code”. He is obliged to convey in writing to his employees what kind of clothing the authorities consider suitable for work with detailed description style and color of clothes.

Natalia Plastinina, head of the legal support sector:

Of course, there is no such basis in the Labor Code of the Russian Federation. However, there is a previously considered ground provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation - repeated failure to fulfill duties. Yes, indeed, an employee can be punished for smoking on the territory of the employer, and for non-compliance with the dress code under the following conditions:

• the employer has all the local acts that have fixed these requirements accurately and clearly;
• the employee is familiarized with the specified acts against signature.

In case of violation by the employee of the specified requirements for the behavior of employees, the employer must, in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation to punish the employee. And only after the appearance of consistency (two or more violations during the year), he will already be able to dismiss the employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

In my opinion, the most optimal option for parting with an employee in terms of simplicity and validity among those proposed.

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

If in this case we are talking about termination of an employment contract on the basis of clause 5 of article 81 of the Labor Code of the Russian Federation (repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction), then non-compliance with the dress code or a ban on smoking is not the best reason for dismissal, since they are not related to work duties. Dismissal under clause 5 of article 81 of the Labor Code of the Russian Federation is carried out when there has been a violation (non-compliance) with the provisions of the job description or the employment contract.

Alcohol intoxication (subparagraph “b”, paragraph 6 of article 81)

A single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication at his workplace on the territory of the employer organization or facility where, on behalf of the employer, the employee must perform a labor function is sufficient. But in order to use this method, the employer will have to provide the results of a medical examination of the employee as evidence.

Natalia Plastinina, head of the legal support sector:

Not always, for the application of this basis, data from a medical examination (medical examination) are needed. The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence that must be assessed accordingly by the court (paragraph 42 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts Russian Federation Labor Code Russian Federation” (hereinafter referred to as Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunk employee flatly refuses to undergo a medical examination (including with the aim of further challenging his dismissal), the employer will have to collect other evidence. They can be (including but not limited to):

1. Statement of discovery alcohol intoxication;
2. an act of refusal of a medical examination;
3. notification of giving explanations;
4. an act of failure to provide explanations (drawn up after two days given to the employee for this);
5. etc.

As practice shows, with the correct and accurate approach of the employer to the preparation of documentation in such cases, an employee who appears at work drunk cannot successfully challenge his dismissal.

So, in a dispute on recognizing the dismissal as illegal, the employer confirmed the fact that the plaintiff was in a state of intoxication at the workplace with an act of being in a state of alcoholic intoxication; an act of refusal to undergo a medical examination; protocol on an administrative offense, explanations of witnesses. The court considered this sufficient evidence of the fact that the employee was intoxicated, and, therefore, sufficient grounds for terminating the employment contract under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation. Having not revealed any violations in the dismissal procedure, the court refused to recognize the dismissal as illegal for the employee (decision of the Zheleznodorozhny District Court of Yekaterinburg dated March 21, 2012; decision of the Sverdlovsk Regional Court dated June 21, 2012 in case No. 33-7104 / 2012.

But the most interesting question is different: will the employer wait for the employee to appear at work in a state of intoxication?

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

To dismiss an employee for appearing at work in a state of intoxication, a medical examination is desirable, but not required. The employee has the right to refuse to proceed to a medical facility. In this case, the employer has the right to confirm the fact of intoxication by an act that describes the signs of intoxication.

Disclosure of professional secrets (subclause "c", clause 6 of article 81)

Disclosure of secrets protected by law (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, is a serious violation of labor duties. At the same time, the concept of personal data is very broad, and theoretically, one can even be fired for telling someone a colleague's home phone number.

Natalia Plastinina, Head of Legal Support Sector:

In accordance with the provisions of Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts. Persons who illegally obtained information that constitutes an official or commercial secret are obliged to compensate for the losses caused. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the terms of the employment contract, and on contractors who did this in violation of the terms of the civil law contract.

According to paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, if the employee disputes the dismissal under paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with applicable law, refers to state, official, commercial or other secrets protected by law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information. It is with this evidence that the employer, as a rule, has problems. Before applying the grounds for dismissal provided for in paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it should be clarified:

• whether the organization has local acts that define information as a legally protected secret;
• whether the employee is familiar with these acts;
• whether he undertook not to disclose certain information;
• did the information leak really come from this employee and how is this confirmed?

Remember: an ordinary employee may not know the provisions of regulations, laws of the Russian Federation. He may be legally completely illiterate. And only if he is familiarized by the employer with a local act based on the norms of laws, he will already be recognized as aware that certain information is a secret. And it will be possible to punish him for disclosure only after he signs a non-disclosure obligation. But the presence of all these documents, as practice shows, does not minimize the risk of recognizing dismissal on the named basis as illegal.

So, the court, considering the case with similar circumstances under consideration, considered that the employerno evidence of violation by the employee of his official duties, in particular, relating to non-disclosure of commercial secrets, was presented. The court pointed out that the employer's arguments are of a conjectural nature and cannot serve as a basis for applying a disciplinary sanction in the form of dismissal. Since there is no evidence in the case that unconditionally testifies to the disclosure by the employee of information related to the trade secret of the company, the court recognized the dismissal under paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation illegal and changed the wording of the grounds for dismissal to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (according to own will) (decision of the Leninsky District Court of Perm dated April 6, 2012; appeal ruling of the Perm Regional Court dated October 3, 2012 in case No. 33-8900).

Changing the basic working conditions (Article 74 of the Labor Code of the Russian Federation)

The employer has the right to change the work schedule or wage conditions by giving employees two months' notice. And here a huge space of opportunities opens up for the employer, and employees are forced to either agree with them or quit on their own. For example, an objectionable employee can be offered piecework wages, transfer production to a round-the-clock schedule, and then many employees will prefer to refuse night shifts.

Natalia Plastinina, head of the legal support sector:

The provisions of this article are too rosy. Employers should not be so optimistic about their rights. First, Art. 74 of the Labor Code of the Russian Federation requires a rigorous justification of the reasons for changing the terms of an employment contract with an employee. According to Part 1 of Art. 74 of the Labor Code of the Russian Federation, only “reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons) are allowed. Secondly, the employer will have to be ready to prove that the terms of the employment contract determined by the parties could not be saved. Thirdly, under no circumstances does the law allow changing the labor function of an employee.

Changing the terms of an employment contract has a strict regulation of the process:

• written acquaintance with the forthcoming changes;
• written justification of the reasons for the introduced changes;
• offer of vacancies during the entire notice period;
• correct recording of all consents and refusals of the employee (from signing, from vacancies, etc.);
• dismissal not earlier than the expiration of the notice period;
• payment of a severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation).

Not an easy process, right? In addition, it must be taken into account that the employee can and ... agree to new working conditions. Or agree to take one of the proposed vacancies. Then it will be necessary to look for another reason for parting?

Given the high risk of contesting the dismissal on the grounds under consideration, it is worth considering the choice of this ground for dismissal.
As an example of a successful challenge, you can see the decision of the Koryazhma city court in case No. 2-12, in which the court did not recognize the employer's grounds for changing the terms of the employment contract and, therefore, the grounds for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work due to a change in the terms of the employment contract determined by the parties). Before the dispute was resolved by the court, the defendant canceled his order and reinstated the worker at work).

Anna Ustyushenko, Partner, Head of Practice, Group of Law Companies INTELLECT-S:

The application of Article 74 of the Labor Code of the Russian Federation is far from possible in all cases. By general rule, changing the terms of the employment contract (and remuneration, work schedule - essential conditions) is made only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). And only in the event of a change in technological or organizational conditions labor, the employer has the right to apply the provision of Article 74 of the Labor Code of the Russian Federation and unilaterally change the terms of the employment contract, notifying the employee about this two months in advance. It should be borne in mind that in the event of a dispute, the obligation to prove the fact of a change in technological or organizational working conditions lies with the employer.

Failure to fulfill labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

Most often, the employer uses this wording when others legal ways layoffs have already been exhausted or are not suitable. In this case, the employee may be given a task that is impossible in terms of time, and then be required to submit an explanatory note on the reasons for non-fulfillment.

(see comment above - “Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”)

Unsatisfactory certification results (clause 3, article 81 of the Labor Code of the Russian Federation). The company should have a regulation on attestation, and the attestation commission should include persons who have a professional understanding of the work of employees subject to certification. All decisions are reflected in the protocol. If the results of the check are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the new job offered to him in the same company, corresponding to the qualification or below it and with less earnings.

(see the comment above - “Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”).

Natalia Plastinina, head of the legal support sector:

Conducting a general analysis of the grounds presented by the magazine, we can conclude that each of them has its drawbacks and entails the emergence of certain risks. Even the correct observance of the dismissal procedure does not always entail the recognition of the dismissal as lawful and justified. Employers can be recommended to use in their activities the simplest grounds and legally regulated dismissal procedures. For example, dismissal for repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation) or dismissal for the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication (paragraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

• HR and Labor Law

Think it's easy? Nothing like this. If an employee refuses to quit of his own free will or by agreement of the parties, only the most skillful employer can force him to leave without violating the law. If it's only about money, it's usually easier to give in. You can fire a person who categorically refuses to leave only for guilty and innocent actions. Both options require serious preparation.

Guilty actions

In this paragraph, we will focus mainly on disciplinary sanctions. The application of penalties is regulated by an article of the Labor Code.

To impose penalties, a documentary base is needed - responsibility for violation of discipline or failure to fulfill duties must be written in the job description. Start with a clear definition of responsibilities. List all the activities that the employee must perform. Additionally, you can draw up a work plan, for example, for a month. In this case, it will be possible to ask for failure to complete tasks within a specific time frame. In addition, the job description should stipulate the obligation of the employee to follow corporate rules and internal documents.

It is almost impossible to fire for the first offense, although the article of the Labor Code allows this. The court will certainly restore it - such is the practice.

Even in the case of gross misconduct listed in the article of the Labor Code (for example, absenteeism or appearing at the workplace in a state of intoxication, disclosure of trade secrets, theft at the place of work, etc.), the courts often require the reinstatement of the violator at work with the wording "guided by the principles of humanism."

If you lose the case, you will have to compensate for the employee's lost earnings. In practice, there are always several disciplinary sanctions to be imposed. Moreover, a person must be given time to correct.

As I noted above, sometimes it is easier to pay compensation right away.

Innocent actions

If a person has nothing to complain about, he can be fired as part of a staff reduction. The employer himself determines its size and structure - this is his constitutional right. Articles and the Labor Code define the procedure. But here, too, there are subtleties.

If several employees occupy the same positions in an organization, you will have to justify why a particular employee is being reduced, and not one of his colleagues. Arguing the choice in court, you have to rely on the article of the Labor Code.

Employees with higher qualifications and higher labor productivity have the preferential right to stay. This can be assessed by the results of work for a certain period and by the results of the annual certification. If you do not have such statistics, the court will most likely take the side of the dismissed person. With equal productivity, additional factors come into play - people with family responsibilities, those who have no other people in the family with independent earnings, the disabled, etc. Should not be the first to leave.

There is also such a nuance - the article obliges the employer to offer the employee to be reduced to take a vacant position in the company if he meets his qualifications. True, how compliance is determined is not said anywhere. This is one of the norms poorly regulated by law. I watched the court reinstate a sales manager because he was not offered a driver's job - he could apply for it, because he had a car license.

In practice, it looks like this. It is not enough to offer a vacancy once - you need to do it at least three times: on the day of delivery of the notice of reduction, that is, two months in advance, a month later, and directly on the day of parting. It is ideal to carry out reductions when there are no vacant positions in the company. If they are, you offered them, and the person refused, ask him to do this in writing.

If an employee falls into one of the privileged categories (pregnant women, mothers with children under the age of three, etc.), it is already quite difficult to fire him. The basis may be an article of the Labor Code. If the organizational or technological working conditions are radically changed, a person may want to leave on his own.

Suppose a company transfers accounting to outsourcing, leaving only one task inside - to maintain current reporting. In this case, not only duties are reduced, but also working hours, and hence the level of income. The main difficulty here is to document changes in working conditions. If the employee's functions are outsourced, you will need to show the contract with the appropriate outsourcer. Courts take such cases seriously.

A radical way is to dismiss an employee by liquidating a branch or representative office. The personnel issue in this case is solved simply: the division is closed according to the rules of liquidation of the company, all employees are reduced. But for the sake of one person, no one will fence such a garden.

Conclusion

In summary, here are the steps that HR needs to take in advance:

1) Job descriptions should spell out in great detail the duties and responsibilities for their non-fulfillment.

2) There should be no discrepancies between employment contracts and other documents that employees are required to follow.

3) It is necessary to formally acquaint employees with all new requirements. If someone does not agree, draw up an act. It must be signed by three more employees.

4) When carrying out any procedures (downsizing, application of penalties), strictly comply with the norms and requirements of the law. For example, a notice of reduction must be sent at least two months in advance, and the time for preparing an explanation of the misconduct must be two days in advance, etc.

5) The main thing is to initially support with employees a good relationship. it The best way avoid conflicts.

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Cover photo: David McNew / Reuters

How can I fire a conflicting employee? My employee is constantly rude to me and colleagues, late from lunch break by at least 15 minutes every day, constantly demands days at her own expense, and works, to put it mildly, it doesn’t matter. I heard that it is not so easy to fire an employee, even such a lazy and conflicted one. What do i do? I suggested that she write statements of her own free will, and she also decided to blackmail me: she says that she will go to court and return to work without any problems. How does it really work with the dismissal of an inefficient, unwilling employee?

Lawyer's answer

Hello!

You, unfortunately, are faced with a difficult, but very common situation. Indeed, firing an objectionable employee is not as easy as it might seem at first glance. Everything seems to be obvious: one side of the employment contract does not fulfill its labor duties, and the other is not ready to endure it. But the courts very often come to the defense of "offended", undeservedly dismissed employees. Therefore, the dismissal procedure must be carried out competently, taking into account all the necessary procedures and without violating the law.

In your case, there are two options for solving the problem. The first option is to terminate the employment contract with the conflicting employee by agreement of the parties, the second option is to terminate the contract on your initiative. Consider the pros and cons of each option.

Termination of an employment contract by agreement of the parties is the most convenient and peaceful way to part with an objectionable employee. This document is a kind of additional agreement to the contract. It prescribes the period from which the contract is considered terminated, and this agreement can provide for the amount of compensation upon dismissal of an employee. The advantage of this agreement: by signing it, the employee will not be able to unilaterally terminate such an agreement. It is also possible that the proposed amount of compensation will seem to the employee a significant incentive for a conflict-free parting with you.

The second, more complex, parting option is the termination of the employment contract at the initiative of the employer. The grounds for such termination of labor relations are provided for in Art. 81 of the Labor Code of the Russian Federation. For you, 3 grounds are most acceptable: a) reduction in the number or staff of employees of an organization, an individual entrepreneur; b) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification; c) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction.

Let's take a closer look at each of the above reasons:

Reduction in the number or staff of employees of an organization, individual entrepreneur

The dismissal of an objectionable employee to reduce staff is a lengthy, time-consuming and costly procedure. The employer needs to consistently and clearly perform the following actions:

1. Make the necessary changes to the staffing table;

2. Warn the employee about the reduction in staff personally against signature no later than two months before the dismissal;

3. Offer the employee all vacant positions in this organization, to which he can be accepted, taking into account his qualifications and state of health;

4. Pay the employee a severance pay in accordance with Art. 178 of the Labor Code of the Russian Federation.

When laying off employees, employers very often violate the dismissal procedure, and that is why, with competent legal assistance, laid-off employees are restored to work without any problems. Also, the courts have no problem identifying “imaginary layoffs” aimed at dismissing only a specific, objectionable employee. Therefore, before laying off a poorly performing employee, draw up a detailed algorithm of actions and stock up on patience and endurance.

Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification

At the same time, a prerequisite for such a dismissal is confirmation of insufficient qualifications by the results of the certification. On the basis of the attestation sheet and the decision of the attestation commission, the head of the organization issues an order stating what activities need to be carried out based on the results of the attestation. This order also contains information about which employees have not passed the certification and should be dismissed on this basis.

The dismissal of such employees is allowed only if it is impossible to transfer them, with written consent, to another job available to the employer (taking into account the qualifications of the employee and his state of health). The employer must offer the employee all the vacancies that meet the specified requirements that he has in the given area.

Conducting certification is not such a simple procedure as it seems at first glance. Employers make many mistakes during their conduct, and the courts then reinstate employees fired due to inconsistency with their position. You need to prepare very well for certification, appoint a person responsible for its implementation, study the regulations. Certification should be carried out throughout the Company, and not only for a specific, conflict employee.

Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction

On this basis, it is also very difficult to dismiss an objectionable employee. The employer makes many mistakes, such as: several penalties are applied for one misconduct; the employee's explanations have not been received or an act on refusal to give explanations has not been drawn up; the fault of the employee has not been proven; the offense itself is not recorded; the deadline for applying the penalty has been missed; the severity of the punishment is not comparable to the misdemeanor (being late for 15 minutes should not be a reason for dismissal). The main mistake of the employer: he forgets to record misconduct and apply disciplinary sanctions for them.

How to fire an employee is up to you. Start with negotiations: perhaps the conflict will be resolved easier and faster than you think.

MagazineForbespublished on his website 10 ways to fire an employee, warning the reader that the moral and ethical side in some cases remains on the conscience of the employer. At the same time, questions arise regarding the technology of these methods of dismissal. In practice, of course, there are many more of them, but the TP asked its experts to comment on the most popular ones.

The agreement of the parties (art. 78 of the Labor Code of the Russian Federation). It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation. Most often, the reasons for such dismissals are discussed face-to-face, but some cases become public.

Natalia Plastinina,

The reason for parting is not bad, but in most cases it requires additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation, instructions on the payment of severance pay upon dismissal by agreement of the parties, many years of practice in resolving difficult situations in labor relations have shown that an employee agrees to such a “soft, smooth, but not included in his plans” parting only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee upon dismissal on the basis under consideration in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties negotiate the amount of this compensation at the level of 2-3 salaries, taking as a guideline the size of the severance pay in case of staff reduction. However, in special cases (dismissal of the head of any link), this amount can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be "hooked" on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases are the dismissal of a truant or an alcoholic in those circumstances when the employer could not acquire sufficient evidence of the misconduct of employees and, therefore, could not risk-freely apply the basis for dismissal appropriate to the situation (subparagraph “a”, paragraph 6 of part 1 article 81 of the Labor Code of the Russian Federation and subparagraphs "b" of paragraph 6 of part 1 of article 81 of the Labor Code of the Russian Federation). The most difficult thing is to find agreement with a category of employees specially protected by law who cannot be fired at the initiative of the employer (during certain periods of their activity), - pregnant women, persons with family responsibilities listed in Art. 261 of the Labor Code of the Russian Federation. These workers, being in a wounded state, are so afraid of losing a permanent job and not finding a new one that they refuse to enter into agreements on termination of the employment contract, despite the proposed compensation, and if such an agreement is signed, they go to the courts to challenge them due to a defect of their own will .

Thus, in addition to the material side of the issue, this ground has another disadvantage - a high risk of successfully contesting his dismissal by the dismissed employee. And practice knows cases of recognition by the court of an agreement to terminate an employment contract as illegal due to the lack of an expression of the will of the employee for this action (as an example, you can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case N 33-156), in which the court, having carefully studied the agreement drawn up by the parties, came to the conclusion that there was no real will of the employee to terminate the employment relationship, and there was only a desire to transform labor relations (the agreement contained the obligation of the employer to subsequently hire the employee again). In this regard, the court concluded that the dismissal under paragraph 1 of part 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: cons of dismissal by agreement of the parties:

1. the employee may not agree to terminate the employment contract, despite the favorable termination conditions offered by the employer;
2. in most cases, termination on this basis will require the employer to voluntarily pay compensation agreed by the parties in the agreement to terminate the employment contract;
3. practice fixes a high risk of contesting the dismissal by agreement of the parties due to a defect in the will of the employee. There are cases of recognition of such agreements as illegal in judicial practice.

Anna Ustyushenko,

The agreement of the parties applies not when the employer cannot find a suitable article in the Labor Code of the Russian Federation, but when the employer soberly assesses the time and financial costs that the dismissal “under the article” may entail, if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best option for terminating an employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if it is challenged by the employee.

I offer my clients the following arguments that can help convince the employee of the need to sign an agreement to terminate the employment contract:

bringing to the attention of the employee information that the employment contract with him will be terminated, at best, the employee will be reduced. However, even a reduction is not the best reason to terminate the employment contract for demonstration to a future employer. Another matter is the agreement of the parties.

A potential employer will not see anything wrong with him;

• the agreement of the parties allows you to save the employee's time, which can be spent, for example, when reducing the number or staff;
• the agreement of the parties makes it possible to agree on the amount of "compensation" for the dismissal, as well as on the procedure for its payment.

Reduction of staff (clause 2 of article 81 of the Labor Code of the Russian Federation). The applicant for dismissal must be provided with a list of vacancies corresponding to his competence - for example, a similar position, but in the regional branch of the company. If the employee refuses to move, a written refusal must be obtained from him. The employer is obliged to notify the employee in writing about the reduction at least two months in advance and not to open a reduced position during the year.

Natalia Plastinina,head of the legal support sector:

1. When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; dismissed ahead of time, a certain part. 2 Article. 180 of the Labor Code of the Russian Federation; they dismiss the employee just in time, but during the period of his illness, which is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for the expression of consent to vacancies or refusal of them, they are already issuing a dismissal order; they do not care about the real basis for the reduction; they do not approve the new staffing table in time; they incorrectly apply the provisions of Art. 179 of the Labor Code of the Russian Federation on the pre-emptive right to remain at work; they make mistakes in the standard paperwork.

For these and other reasons, there is still a high risk of recognizing the layoff for redundancy as illegal and reinstating the employee at work, which is confirmed by numerous judicial practice.

So, for example, in a labor dispute, the court concluded that the employee was dismissed before the expiration of the two-month period established by labor legislation from the date of notification of the upcoming reduction. In this connection, the court recognized the dismissal of the plaintiff employee under paragraph 2 of part 1 of Art. 81 of the Labor Code illegal, reinstated the plaintiff in the organization in his previous position (decision of the Yugorsky District Court of the Khanty-Mansiysk Autonomous Okrug - Yugra (published on November 27, 2012).

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

Indeed, downsizing is one of the methods of dismissal, requiring strict adherence to procedures. The employee is notified in writing about the upcoming reduction 2 months in advance, during this time he must be offered in writing any vacant or newly created vacancy, the duties for which he can perform, taking into account his qualifications. It is important to offer not only similar positions, but also lower positions. But positions in other regions are offered only if it is enshrined in a collective agreement or other local regulatory act of the company.

Also, one should not forget about the pre-emptive right to leave some categories of employees at work.

Absenteeism (subparagraph “a”, paragraph 6 of article 81). If an employee is absent from the workplace during the whole working day or for more than four hours in a row, the dismissal occurs automatically. It is more difficult to dismiss an employee who is often late, but this is also possible if the start time of work is specified in the internal labor regulations, in the employment contract, and also in the collective agreement, if there is one in the company.

Natalia Plastinina,head of the legal support sector:

We note right away that one can never expect such a reason from an average moderately responsible employee. Lateness does not form such a basis for dismissal as absenteeism, since the time the employee is absent does not reach 4 or more hours in a row. In addition, there is a high risk of incorrect recording of the event, incorrect qualification of absence as absenteeism, incorrectly drawn up documentation for the formation of the basis provided for in paragraphs. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation.

Cons of applying for dismissal on this basis:

low probability of occurrence of the base itself;

high probability of errors in the procedure for dismissal on the named basis;

a high risk of challenging the dismissal due to its unfairness, illegality, and also in order to exclude an unseemly entry in the work book;

in those organizations where there is no full-time lawyer, and personnel records management is entrusted to the secretary, all the above risks of erroneous actions by the employer increase significantly. The risk of reinstatement of a dismissed truant also increases.
As practice shows, the regulatory authorities that check employers and may recognize the order to dismiss for absenteeism are not asleep. What was done in Altai Territory by the State Labor Inspectorate. As a result of the check carried out on the basis of the citizen's appeal, the state labor inspector found that, in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not request a written explanation from the employee on the fact of absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation. At the request of the state labor inspector, the dismissal order by the employer was canceled. For violation of labor legislation, the director was brought to administrative responsibility in the form of a fine.

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

Even if the employee was absent from work for the amount of time needed for absenteeism, he can hardly be automatically fired. In any case, this will require clearly following the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, “automatic” dismissal for absenteeism may entail the restoration of the dismissed person with the accrual of payment for forced absenteeism.

Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation). The employer has the right to change the job description of the employee, warning him for two months. Then, in additional agreements to the employment contract with the employee, the conditions are prescribed, on the basis of which the indicators are considered unfulfilled. The values ​​of indicators can be taken according to any schedule: once a week, month, quarter. If an employee fails to cope, he is reprimanded, severely reprimanded, and then fired.

Natalia Plastinina,: Paragraphs 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation are two different grounds. The basis of paragraph 3 -“inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification” - in practice, it is difficult to achieve due to the actual non-occurrence of this basis. To apply it, the employer will first have to approve the local act on the certification (see part 2 of article 81 of the Labor Code of the Russian Federation), give employees time to prepare. Create a commission. Correctly record the order of its implementation and results. Give iron arguments of the inconsistency of the employee with the position held. And after that...

Offer the employee another job in his own company! This is required of the employer by part 3 of Art. 81 of the Labor Code of the Russian Federation. That is, all of the above actions may not lead to the end of the employment relationship if the employee agrees to be transferred to another position. Was the game worth the candle?

Clause 5, Part 1, Art. 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - "repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction." There are some flaws in the scheme for changing job descriptions described by Forbes magazine: will the employee challenge these changes in the future? If, for example, you include in the job description of a building maintenance engineer the obligation to sweep 4 production shops in the evening, it seems that the court will not recognize such a change as legal and justified. And he will point out to the zealous employer the correct guideline in this matter - ETKS. In addition, one should not forget about the systematic misconduct of the employee, which may no longer be formed after the first punishment.

And although both grounds may be applicable, but their elusiveness and high risk of contestation do not make them popular.

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

In this case, a strange construction is described, which has nothing to do with Russian law in general and with clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation in particular.

Firstly, a change in the job description is a change in the labor function of an employee, which is possible only by agreement of the parties. In this case, a warning for two or more months does not play a role.

Secondly, in order to sign some additional agreements to the employment contract, the will of the employee is necessary, without which agreements cannot appear. And if the employee refuses to sign additional agreements? Has the right to.

Thirdly, in order to apply such a basis as inconsistency with the position held (clause 3 of article 81 of the Labor Code of the Russian Federation), certification must be carried out, only a negative conclusion of the certification commission can be a reason for dismissal of an employee.

Failure to comply with the rules of internal labor regulations (Article 192 of the Labor Code of the Russian Federation). Information about the ban on smoking, the need to comply with the dress code should be spelled out in the internal labor regulations, which are signed by all employees when they are hired. You need to understand that it is not enough for the employer to simply indicate “observe the dress code”. He is obliged to convey in writing to his employees what kind of clothing the authorities consider suitable for work with a detailed description of the style and color of clothing.

Natalia Plastinina,head of legal support sector:

Of course, there is no such basis in the Labor Code of the Russian Federation. However, there is a previously considered ground provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation - repeated failure to fulfill duties. Yes, indeed, an employee can be punished for smoking on the territory of the employer, and for non-compliance with the dress code under the following conditions:

• the employer has all the local acts that have fixed these requirements accurately and clearly;
• the employee is familiarized with the specified acts against signature.

In case of violation by the employee of the specified requirements for the behavior of employees, the employer must, in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation to punish the employee. And only after the appearance of consistency (two or more violations during the year), he will already be able to dismiss the employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.
In my opinion, the most optimal option for parting with an employee in terms of simplicity and validity among those proposed.

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

If in this case we are talking about termination of an employment contract on the basis of clause 5 of article 81 of the Labor Code of the Russian Federation (repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction), then non-compliance with the dress code or a ban on smoking is not the best reason for dismissal, since they are not related to work duties. Dismissal under clause 5 of article 81 of the Labor Code of the Russian Federation is carried out when there has been a violation (non-compliance) with the provisions of the job description or the employment contract.

Alcohol intoxication (subparagraph “b”, paragraph 6 of article 81). A single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication at his workplace on the territory of the employer organization or facility where, on behalf of the employer, the employee must perform a labor function is sufficient. But in order to use this method, the employer will have to provide the results of a medical examination of the employee as evidence.

Natalia Plastinina,head of the legal support sector:

Not always, for the application of this basis, data from a medical examination (medical examination) are needed. The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence that must be assessed accordingly by the court (paragraph 42 of the Decree 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 Russian Federation "(hereinafter - the decision of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunk employee flatly refuses to undergo a medical examination (including with the aim of further challenging his dismissal), the employer will have to collect other evidence. They may be (including but not limited to):

1. an act of discovery in a state of intoxication;
2. an act of refusal of a medical examination;
3. notification of giving explanations;
4. an act of failure to provide explanations (drawn up after two days given to the employee for this);
5. etc.

As practice shows, with the correct and accurate approach of the employer to the preparation of documentation in such cases, an employee who appears at work drunk cannot successfully challenge his dismissal.

So, in a dispute on recognizing the dismissal as illegal, the employer confirmed the fact that the plaintiff was in a state of intoxication at the workplace with an act of being in a state of alcoholic intoxication; an act of refusal to undergo a medical examination; protocol on an administrative offense, explanations of witnesses. The court considered this sufficient evidence of the fact that the employee was intoxicated, and, therefore, sufficient grounds for terminating the employment contract under paragraphs. "b" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation. Having found no violations in the dismissal procedure, the court refused to recognize the dismissal as illegal for the employee (decision of the Zheleznodorozhny District Court of Yekaterinburg dated March 21, 2012; decision of the Sverdlovsk Regional Court dated June 21, 2012 in case No. 33-7104 / 2012) .

But the most interesting question is different: will the employer wait for the employee to appear at work in a state of intoxication?

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

To dismiss an employee for appearing at work in a state of intoxication, a medical examination is desirable, but not required. The employee has the right to refuse to proceed to a medical facility. In this case, the employer has the right to confirm the fact of intoxication by an act that describes the signs of intoxication.

Disclosure of professional secrets (subclause “c”, clause 6, article 81). Disclosure of secrets protected by law (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, is a serious violation of labor duties. At the same time, the concept of personal data is very broad, and theoretically, one can even be fired for telling someone a colleague's home phone number.

Natalia Plastinina,head of legal support sector:

In accordance with the provisions of Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the case when the information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of the information takes measures to protect its confidentiality. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts. Persons who illegally obtained information that constitutes an official or commercial secret are obliged to compensate for the losses caused. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the terms of the employment contract, and on contractors who did this in violation of the terms of the civil law contract.

According to paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, if the employee disputes the dismissal under paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with applicable law, refers to state, official, commercial or other secrets protected by law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information. It is with this evidence that the employer, as a rule, has problems. Before applying the grounds for dismissal provided for in paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, it should be clarified:

• whether the organization has local acts that define information as a legally protected secret;
• whether the employee is familiar with these acts;
• whether he undertook not to disclose certain information;
• did the information leak really come from this employee and how is this confirmed?

Remember: an ordinary employee may not know the provisions of regulations, laws of the Russian Federation. He may be legally completely illiterate. And only if he is familiarized by the employer with a local act based on the norms of laws, he will already be recognized as aware that certain information is a secret. And it will be possible to punish him for disclosure only after he signs a non-disclosure obligation. But the presence of all these documents, as practice shows, does not minimize the risk of recognizing dismissal on the named basis as illegal.

So, the court, considering the case with similar circumstances under consideration, considered that the employerno evidence of violation by the employee of his official duties, in particular, relating to non-disclosure of commercial secrets, was presented. The court pointed out that the employer's arguments are of a conjectural nature and cannot serve as a basis for applying a disciplinary sanction in the form of dismissal. Since there is no evidence in the case that unconditionally testifies to the disclosure by the employee of information related to the trade secret of the company, the court recognized the dismissal under paragraphs. "c" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation illegal and changed the wording of the grounds for dismissal to paragraph 3 of part 1 of Art. 77 of the Labor Code of the Russian Federation (of their own free will) (decision of the Leninsky District Court of Perm dated April 6, 2012; appeal ruling of the Perm Regional Court dated October 3, 2012 in case No. 33-8900).

Changing the basic working conditions (Article 74 of the Labor Code of the Russian Federation). The employer has the right to change the work schedule or wage conditions by giving employees two months' notice. And here a huge space of opportunities opens up for the employer, and employees are forced to either agree with them or quit on their own. For example, an objectionable employee can be offered piecework wages, transfer production to a round-the-clock schedule, and then many employees will prefer to refuse night shifts.

Natalia Plastinina,head of legal support sector:

The provisions of this article are too rosy. Employers should not be so optimistic about their rights. First, Art. 74 of the Labor Code of the Russian Federation requires a rigorous justification of the reasons for changing the terms of an employment contract with an employee. According to Part 1 of Art. 74 of the Labor Code of the Russian Federation, only “reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, other reasons) are allowed. Secondly, the employer will have to be ready to prove that the terms of the employment contract determined by the parties could not be saved. Thirdly, under no circumstances does the law allow changing the labor function of an employee.

Changing the terms of an employment contract has a strict regulation of the process:

• written acquaintance with the forthcoming changes;
• written justification of the reasons for the introduced changes;
• offer of vacancies during the entire notice period;
• correct recording of all consents and refusals of the employee (from signing, from vacancies, etc.);
• dismissal not earlier than the expiration of the notice period;
• payment of a severance pay in the amount of two weeks' earnings (Article 178 of the Labor Code of the Russian Federation).

Not an easy process, right? In addition, it must be taken into account that the employee can and ... agree to new working conditions. Or agree to take one of the proposed vacancies. Then it will be necessary to look for another reason for parting?

Given the high risk of contesting the dismissal on the grounds under consideration, it is worth considering the choice of this ground for dismissal.
As an example of a successful challenge, you can see the decision of the Koryazhma city court in case No. 2-12, in which the court did not recognize the employer's grounds for changing the terms of the employment contract and, therefore, the grounds for dismissal under paragraph 7 of Art. 77 of the Labor Code of the Russian Federation (refusal to continue work due to a change in the terms of the employment contract determined by the parties). Before the dispute was resolved by the court, the defendant canceled his order and reinstated the worker at work).

Anna Ustyushenko,partner, head of practice at INTELLECT-S Group of Law Companies:

The application of Article 74 of the Labor Code of the Russian Federation is far from possible in all cases. As a general rule, a change in the terms of an employment contract (and remuneration, work schedule - essential conditions) is made only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). And only in the event of a change in technological or organizational working conditions, the employer has the right to apply the provision of Article 74 of the Labor Code of the Russian Federation and unilaterally change the terms of the employment contract, warning the employee about this two months in advance. It should be borne in mind that in the event of a dispute, the obligation to prove the fact of a change in technological or organizational working conditions lies with the employer.

Failure to fulfill labor duties (clause 5, article 81 of the Labor Code of the Russian Federation). Most often, the employer uses this wording when other legal methods of dismissal have already been exhausted or are not suitable. In this case, the employee may be given a task that is impossible in terms of time, and then be required to submit an explanatory note on the reasons for non-fulfillment.

(see comment above - “Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”)

Unsatisfactory certification results (clause 3, article 81 of the Labor Code of the Russian Federation). The company should have a regulation on attestation, and the attestation commission should include persons who have a professional understanding of the work of employees subject to certification. All decisions are reflected in the protocol. If the results of the check are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the new job offered to him in the same company, corresponding to the qualification or below it and with less earnings.

(see the comment above - “Inconsistency with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”).

Natalia Plastinina,head of legal support sector:

Conducting a general analysis of the grounds presented by the magazine, we can conclude that each of them has its drawbacks and entails the emergence of certain risks. Even the correct observance of the dismissal procedure does not always entail the recognition of the dismissal as lawful and justified. Employers can be recommended to use in their activities the simplest grounds and legally regulated dismissal procedures. For example, dismissal for repeated non-performance an employee without valid reasons for labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) or dismissal for the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication (paragraph “b”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation).

The dismissal of an employee is a serious test. Important here are not only personal qualities boss, but also compliance with the legal framework, since the law defines specific reasons for which an employee can be fired. Consider the procedure for dismissing an employee in the next article in more detail.

Why is it legal to fire an employee?

There are three fundamental reasons why the law makes it easy to fire an employee:

1. Violation of established discipline or failure to perform official duties . A fairly common reason for dismissal, however, in order to dismiss an employee on it, you will need to prove the legality of such an act. That is, the employer will need documentary evidence and other kinds of evidence so as not to be unfounded upon dismissal. Otherwise, the employee will be able to sue and win the case.
2. Natural procedure for downsizing or liquidation of an enterprise . As a rule, dismissal of employees in these situations is almost inevitable. However, it is the employer's responsibility to give advance notice of dismissal. The law recommends sending a written notice of the necessary dismissal 2 months in advance.
   By agreement, the amount of the dismissal allowance is determined, which can be either 3 or 5 salaries. If the dismissal occurs due to staff reduction, then it equals one salary. If the employment contract with the employee is concluded for less than two months, then the severance pay is not paid to him.
   Despite the fact that the reason for the dismissal will be official, the employee will need to explain it and confirm it verbally and in writing.
3. Dismissal at will . If an employee personally expresses a desire to quit, then here the law also does not build any obstacles. Similarly, in the case when the dismissal occurs at the mutual desire of both parties. The advantages of such a dismissal are that it will not be possible to challenge the dismissal through the court later.

Many employers go to the trick to fire an employee for such an article: they offer him compensation on a large scale or a positive review for another job. If this method does not work, the employer begins to “intimidate” the employee - he says that in case of refusal, he will dismiss the employee under a “bad article” (for absenteeism or disciplinary violations).

If an employee understands jurisprudence and knows his legal rights, then even the slightest violations during his dismissal can cause great trouble for the employer. However, an employee will be able to go to court only if he received a “white” salary, and not a salary in an envelope. Be that as it may, the main legislative document that both the employer and the employee should be guided by when dismissing is the Labor Code.

How to fire an employee who has not passed the probationary period?

The dismissal of an employee who has not passed the probationary period is carried out in a simplified form. For this, it is necessary to be guided by article 71 of the Labor Code. It is enough for the employer to send a notice to the employee indicating the reason for dismissal 3 days before the end of the probationary period. At the same time, the dismissal procedure of this kind is simple and legal for both parties.

If during the probationary period the employee was not satisfied with the conditions of his work, he can also quit on simplified terms. At the same time, the employee also needs to notify the employer about this 3 days before the dismissal, after which he will quite legally be able to terminate his employment contract. Consider a number of features of the procedure:

1. If the probationary period ends and the employee continues to work, then he has successfully completed his probationary period. Therefore, it will be simply impossible to dismiss him later (even in the first days of work after the probationary period) under Article 71.
2. The deadlines for sending a notice of resignation also include non-working days and weekends.
3. If during the probationary period the employee was ill or did not attend work for another good reason, the employer undertakes to extend the probationary period for exactly the same time that the employee missed.
4. If an employee is on sick leave or on vacation, then it is legally impossible to decide that he does not pass the probationary period.

Like any other employee, one who has not passed the probationary period is entitled to severance pay. All payments due are made by the employer after the termination of the contract is recorded in the work book.

How to fire an employee without his will?

If there is a need to dismiss an employee, but there are no objective reasons for this, then you can use some of the “workarounds” that have gained popularity in practice:

1. The employer has the right, within the framework of the legislative framework, to change the terms of the contract without violating the rights of the employee. Sometimes an employee is not ready for such changes and applies for dismissal, or the employer himself offers him such an option.
   The disadvantage of this method is that it is quite lengthy. At least to make changes, it will be necessary to obtain signatures from all senior officials. After that, at least 2 months before the changes come into force, you need to notify the employee about them and get his consent or refusal to work on such conditions.
2. Gross violation of labor duties is a serious misconduct of an employee. Even if he violates the established order at the enterprise once, he can legally be fired. Sometimes absenteeism becomes a serious reason for dismissal.
3. Sometimes a boss may fire an employee because the work he is doing does not meet the required conditions. The reason may be insufficient qualifications or negative results of the past certification to check working conditions.
   In this case, the obligation of the employer becomes the mandatory offer to the employee of a position corresponding to his qualifications or suitable according to the results of certification. The inability to offer a vacant position (due to the lack thereof) must be documented.
4. Failure to perform duties common cause layoffs. The manager's problem in this case is the need to confirm the fact that the employee deliberately does not fulfill his official duties. Violations may also relate to local regulations and other documents that establish order at the enterprise.

It should be noted that when dismissing employees, it is important to remember not only the legislative aspects of the issue, but also the ethical ones. In no case should the dismissal discriminate against the employee or violate his rights prescribed by law.

How to fire a deceased employee?

Upon the death of an employee, the employer bears considerable responsibility for the execution of a number of documents and papers. Consider the procedure for dismissing a deceased employee:

• It is necessary to issue a letter of resignation. To form an order, documents confirming the fact of death are required. As a rule, such documents are a certificate or certificate of death, which must be provided by the relatives of the deceased. Without these documents, the formation of the order is not possible.
• Make the necessary entry in the work book. This requirement may seem absurd, but one way or another it is prescribed by law. The signature of a relative in the work book is not required.
• Pay monetary compensation employee's relatives. Most often, it is determined by the salary of the employee, and sometimes it is contractual.

As a rule, the date of dismissal is the date of death of the employee. However, it must be remembered that the official moment of termination of employment is the last day the employee visits the workplace. Therefore, when determining the date, one should start from the individual situation.

Video: Proper dismissal of an employee

In the following video, the expert will talk about the secrets of the correct dismissal of an employee:

Sequential procedure for dismissal of an employee

In order to avoid consequences after the dismissal of an employee, everything must be done legally competently. To do this, you can go through a preliminary consultation with a lawyer, especially in a situation where your case has certain individual characteristics. It is also important to carry out the procedure in sequence:

1. Determination of legal grounds for dismissal of an employee. In addition to specific reasons, this may be dismissal or mutual desire.
2. A personal conversation with an employee or his written notice of dismissal.
3. Collection of all required documents (including those confirming the legality of the dismissal).
4. Drawing up a dismissal order, entries in the work book and payment of benefits. It can be issued in the form T-8 or T-8a:

The employer is obliged to provide the employee with psychological assistance as well. For many, dismissal (even for an objective reason) can be a serious blow and entail quite difficult problems.