Dismissal under the article for failure to fulfill official duties is provided for in paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. It is possible to dismiss an employee on such a basis if he repeatedly ignores his duties and already has disciplinary action on this basis.

When hiring a new employee, the employer must familiarize him with his immediate responsibilities. General duties should be specified in the employment contract. A more complete list is listed in job description.

The employee must familiarize himself with this document against signature. This is stated in paragraph 3 of Art. 68 of the Labor Code of the Russian Federation. This must be done before signing the employment contract. Otherwise, the employer will not be able to apply a disciplinary sanction to him, and subsequently the dismissal of the employee for failure to perform official duties.

In addition to the job description, the employee must familiarize himself with the internal regulations and other documents that are relevant to his new job.

Failure to fulfill one's job duties is a violation of labor discipline. It is possible to dismiss an employee on this basis only if there are 2 factors:

• if the non-performance has already taken place, and the employee has a disciplinary sanction in any form on this basis;
• if the employee did not fulfill his immediate labor duties without a good reason.

In the event that an employee violated labor discipline for the first time under this paragraph, the employer has the right to apply any form of disciplinary sanction to him, except for dismissal. This is stated in the Resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2.

A disciplinary sanction should not be withdrawn or extinguished, only then the employer can dismiss the employee in case of repeated violation. Otherwise, he must again impose a penalty on him.

The Labor Code of the Russian Federation does not indicate which reasons are valid. This must be determined by the employer. But his opinion, when dismissing an employee, he must justify.

Since dismissal for dishonest performance of duties is a dismissal at the initiative of the employer, it must be properly executed.

The procedure for dismissal on this basis is as follows:

• Collection of documents. The employer must prove that a repeated disciplinary offense has taken place.
• It is necessary to check the job description for the exact entry of the duties that the employee does not perform.
• It is necessary to check whether the violator belongs to the category of workers who are prohibited from being fired at the initiative of the employer. For example, pregnant women or women who have children under 3 years of age. Full list specified in Art. 261 of the Labor Code of the Russian Federation.
• It is necessary to check the validity of the previous disciplinary sanction and the period for imposing a new one. In Art. 193 of the Labor Code of the Russian Federation says that the employer has the right to impose a disciplinary sanction on the employee within a month after the moment of its discovery.
• It is necessary to demand from the employee a written explanation of his violation;
• It is necessary to take into account all the circumstances of the commission of a new offense, and commensurate them with the applicable punishment;
• Check for a valid reason;
• Issue a dismissal order. The employee must read the order and sign it;
• The employer must then register the order;

On the day of dismissal, it is necessary to make a full settlement with the employee and issue him work book, in which a record of dismissal will be made and the basis will be indicated, as well as the norm of the article of the Labor Code of the Russian Federation.

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Dismissal under the article for failure to perform official duties - step by step instructions

The dismissal of an employee under the article for failure to fulfill official duties is a complex procedure that has a lot of nuances. Since the initiator of the dismissal procedure in a particular case is the employer, he must strictly comply with the conditions established by law.

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Basic provisions

The basis for the termination of labor relations between the employee and the employer at the initiative of the employer in connection with the employee's failure to perform official functions is article number 81 TC. in particular:

• Part 1, paragraph 5 - repeated non-fulfillment by a subordinate of the labor duties assigned to him if the person has an outstanding penalty at the moment;
• Part 1, paragraph 6 - a single, but gross violation of duties.

The main list of functions imputed to the execution of a subordinate is established by article TC number 21, and a detailed and full list should be spelled out in instructions, orders and, of course, labor contract.

What labor contract read our article.

At the same time, the employee gets acquainted with the range of cases assigned to him, indicated in all relevant to his activities. regulations which is regulated article number 68 TC. and personally signs.

Accordingly, if the duties of the employee are not specified in the employment contract, while the employer did not familiarize him with the instructions regulating the list of functions, bringing the subordinate to disciplinary responsibility and dismissing the person under the relevant article 81 of the Labor Code will become quite problematic process.

Dismissal under paragraph 5 of clause 81 of article TK is one of the measures of disciplinary responsibility, it is important for the employer to strictly observe the procedure for bringing to it.

It is important to remember that, in accordance with article 194 of the Labor Code, the maximum period during which a disciplinary sanction is valid is one year.

After this time, it is extinguished and the employee, if another similar measure is not applied to him, is considered not to have a penalty.

In addition, the employer at will. at the request of the direct management of the employee or the subordinate himself, he can remove the disciplinary sanction from the offender earlier, before the expiration of the year.

What could be the reasons?

If a subordinate re violated labor obligations during the period of disciplinary action, the employer has the right to dismiss him in accordance with the fifth paragraph of the first part of Article 81.

In order for the legitimacy of dismissal not to be questioned, it is required at the same time to observe such conditions.

• The fact of violation of labor discipline by an employee must be proven.
• The employee must have an outstanding disciplinary sanction at the time of the repeated violation.

His absence will be interpreted by the court as non-compliance with the mandatory condition for dismissal under the article, which will become the basis for recognizing the employer's decision as invalid. Penalties, as article number 192 of the Labor Code says, include comments, reprimands and dismissals.

At the same time, it is legally possible to carry out the dismissal procedure only during the claim period. that is, until the expiration of a year from the date of its imposition, or within a shorter period if such a decision is made by the employer, in other cases it is considered that the employee was not held liable.

In accordance with paragraph 6 of paragraph 81 of the article, the employer may dismiss the employee under article even if the previously subordinate person did not commit misconduct. The grounds are such actions of the subordinate as:

1. absenteeism, that is, failure to appear for a shift within 4 or more hours from the moment it began;
2. the employee appeared at the workplace in a state of any type of intoxication;
3. disclosure of secrets, including personal data of another employee, which became known to him as a result of the performance of work duties;
4. committing embezzlement or theft established by a court verdict or resolution;
5. Identification of violations of the requirements and rules of labor protection, which could lead to or led to serious consequences.

The employer, accepting a new employee to his staff, must bring to his attention a complete list of functions. A job description should also be drawn up, which provides an in-depth list of job duties. So for their violation, and repeated, the authorities have the right to remove an incompetent employee from the state. We need to understand the process of dismissal.

How to fire an employee for non-performance of duties

The authorities, before signing the employment contract, are obliged to familiarize the person with the duties that he will perform. He must sign this document.

Dismiss an employee for good reason "failure to perform duties” is possible subject to two conditions:

• in case of such violation, the employee received any disciplinary action;
• violation of functional duties was made without a good reason.

As stated in the law, in case of failure to fulfill their functions, a person should be charged with any punishment, except for dismissal. Only when this penalty is not removed, the employer has the right to dismiss the employee.

Not a single article of the Labor Code of the Russian Federation prescribes what reasons can be valid. Therefore, the decision is up to the employer.

Dismissal for non-fulfillment of labor duties - step by step instructions

In order to properly fire a person, you must follow a certain algorithm of actions:

• First you need to collect documents that confirm the repeated violation;
• Make a copy of the instruction, which clearly indicates the item that is systematically violated;

It is important to remember that some categories of people are prohibited from firing. These include pregnant women and mothers whose child has not reached the age of three.

• Check all the numbers of imposed disciplinary sanctions;
• A mandatory step is to receive an explanation from the employee in writing;
• Make sure there are no good reasons;
• Print a dismissal order, assign a number to it and familiarize the person with it;
• Make a record of dismissal in the work book;
• Give a book to a person in his hands, pay him in full.

Failure to comply with legal obligations

The law clearly states that the employer is obliged to familiarize the person with his functions. This must be done before the conclusion of the contract. He speaks about it.
gives the right to the management of the organization to dismiss an employee for failure to fulfill his official load in the presence of a disciplinary sanction for such an action.

Fully explains on what basis, in what case and what punishment the management can apply when committing an unacceptable misconduct.

Responsibility for non-fulfillment of official duties

According to article 192 of the Labor Code of the Russian Federation, a remark, reprimand, dismissal can be applied to a person who does not fulfill his labor duties.

The employer has the right to decide for himself what kind of punishment the employee should suffer. Such a decision is made on the basis of the committed act, how great the losses suffered by the digging from such actions.

Each employee should know how to avoid dismissal under the article for failure to perform official duties. To do this, you must fully comply with your job description. Do not violate it without good reason. Then the boss will not need to punish.
It must be understood that no one will fire a person for the first violation of the instructions, but a penalty will be imposed and may entail a reduction in the bonus. But the second can already lead to dismissal. Therefore, the situation should not be brought to a critical moment.

How to apply for dismissal under the article for failure to perform official duties?

You need to know the rules here. For dismissal on such grounds, an order is issued. It has an approved form T-8.
In such a document, the full contact details of the employer must be indicated: the name and address of the company, details. Also, the full name and position of the employee, the date of commencement of the employment relationship are prescribed here. A mandatory step is to indicate a reasonable reason why the person is being fired. There should be links to all evidence papers.

It also indicates the fact that a person has repeatedly been brought to disciplinary responsibility for such violations of discipline. The order is issued in two copies, it is obligatory given for familiarization to the dismissed person.

The consequences of dismissal under the article

It is very bad when there is a dismissal under the article for failure to perform official duties. The consequences after it are extremely serious. A special entry is made in the work book that the person was removed from the place of work for a gross violation. In this case, it will be difficult to get a new job. Employers always carefully screen new applicants.

It is necessary to take a serious and responsible approach to the performance of one's duties, then the authorities will never have the thought of dismissing a valuable employee.

There are many various situations due to which the employer may terminate the official relationship with the employee. The most common reason is the dismissal of an employee for improper performance of their job duties. Before you fire an employee for poor performance at work, it is worth giving him the opportunity to correct the problem.

Dismissal under the article for failure to perform official duties

Article 81 of the Labor Code of the Russian Federation on non-fulfillment of official duties states that an employee is subject to dismissal if he systematically fails to fulfill his duties without good reason (but at the same time, appropriate written reprimands are required). The rupture of labor relations is carried out if the employee repeatedly ignored any instructions from his superiors and was constantly inactive in the presence of work. Also, the employer has every right to implement a disciplinary sanction, which will depend entirely on the severity of the violation.

Penalties for avoiding work:

1. verbal warning.
2. In case of repeated violation, a written record is made in an official document containing information about employment.
3. The ultimate punishment is dismissal.

Dismissal for non-fulfillment of labor duties - step by step instructions

How to fire an employee for non-performance of duties? There is a certain sequence of actions:

1. It is necessary to draw up official papers that confirm the presence of violations in the performance of official activities.
2. Determine the category of the worker. It is impossible to break official working relations with pregnant women and women who have a child under three years of age (noted in article 261 of the Labor Code of the Russian Federation).
3. Article 193 of the Labor Code of the Russian Federation notes that the employer, from the moment violations are discovered, has the full right to implement a disciplinary sanction.
4. It is necessary to ask the employee to write a note with a full explanation, in which it is necessary to indicate good reasons for repeatedly avoiding work.
5. Consider the reasons why work activities were not carried out and take appropriate punitive measures - suspension, disciplinary action, etc.
6. According to article 77 of the Labor Code of the Russian Federation, issue an order to dismiss.
7. The employee who is subject to release from activity must familiarize himself with the document and sign it.
8. Register the order in the personnel department.
9. It is necessary to make an entry in the work book, indicating the justified reason for the break in the working relationship.

On this topic, you should familiarize yourself with a sample report for an employee who does not do his job.

Punishment of an employee for failure to perform official duties - can they impose a fine?

In the labor code Russian Federation It is noted that the employer does not have the right to fine his employees. Such punishment for improper performance work activity is illegal. As a punishment, you can use the deprivation of the bonus, with a disciplinary sanction or other violations. But this item must be written in the labor contract of the worker.

Dismissal for non-fulfilment of official duties - sample

When drawing up an order for dismissal from work, it is necessary to take into account all the rules for issuing this document. You can familiarize yourself with all the instructions in article 77 of the Labor Code of the Russian Federation.

The order must contain the following information:

1. The name of the organization in which the work activity of the employee was carried out.
2. Date of signing the employment contract.
3. Employee data.
4. The position of the employee must be indicated.

Consequences of dismissal under the article for failure to perform official duties

Termination of labor relations with an employee can be carried out if:

1. The disciplinary sanction applied to the employee did not affect his work activity in any way.
2. Lack of a valid reason for avoiding work duties. Dismissal of an employee is possible in the event that any penalties do not apply to him.

Before concluding a contract, the employer must familiarize the employee with his job functions. If familiarization with the document has not been made, then the implementation of dismissal or the adoption of other penalties will be an illegal activity of the employer.

A reprimand for failure to perform duties is an effective measure of influence on violators of labor discipline. In order to establish the procedure for the performance of official functions by an employee, the employer has in its arsenal such documents as an employment contract, job description, internal labor regulations and other local regulations. In fact, for one reason or another, an employee often violates the provisions approved by the organization. Depending on the nature, severity and frequency of violations, the manager has the right to apply an appropriate disciplinary sanction. The article will consider the procedure, as well as give a sample order for a reprimand.

The procedure for applying the penalty

The rules for applying a particular disciplinary sanction are described in Art. 193 Labor Code of the Russian Federation, according to which any punitive measure is accompanied by the issuance of an appropriate order. By law, before classifying an action as a misdemeanour, an employer must seek an explanation from the employee who committed it. Refusal to give an explanation is fixed by drawing up an act and, according to Art. 193 of the Labor Code of the Russian Federation, cannot prevent the application of disciplinary measures. The term for providing an explanatory note does not exceed two working days. In addition, the Labor Code provides for other terms for the application of penalties:

• no more than one month after the discovery of the violation;
• no more than six months after the commission of the violation;
• no more than two years after the discovery of misconduct based on the results of the audit by the auditor or auditor.

It is important to remember that, in accordance with the Labor Code of the Russian Federation, only one punishment can be imposed for one specific violation (Article 193 of the Labor Code of the Russian Federation).

Reprimand as a disciplinary sanction

In Art. 192 Labor Code of the Russian Federation this concept is mentioned as one of the types of punishment along with reprimand and dismissal on appropriate grounds. However, the legislative act does not give a clear definition of this term and does not explain its difference from the remark. In practice, it is generally accepted that a reprimand is assigned for a violation of moderate severity. Sometimes the heads of organizations or personnel officers operate with such a concept as a strict reprimand. This is probably done to enhance the effect of punishment on a psychological level, since. this term is not related to the Labor Code and is officially applied, for example, to employees in the armed forces of the Russian Federation.

The application of penalties, according to the law, is formalized by an order, which is submitted for signature to the employee within three working days (Article 193 of the Labor Code of the Russian Federation). The following is an example of a reprimand for improper performance of official duties.

sample order

Consequences for the worker

During the discussion of violations of discipline and types of punishment, the question inevitably arises: does a reprimand received at work have consequences? Contrary to popular belief, information about the censure cannot be recorded in the work book, which means it does not become known to another employer. This is evidenced by Art. 66 Labor Code of the Russian Federation. A reprimand with entry in a personal file at the level of documents implies, as mentioned above, the issuance of an order. In addition, the employee responsible for personnel records management may (but is not obliged to) record this fact in the violator's personal card. In fact, the presence of such a penalty can act as a factor subsequent dismissal. P. 5 Art. 81 of the Labor Code of the Russian Federation states that the employer has the right to terminate the employment relationship with the employee in the presence of the fact of "repeated non-fulfillment of duties by the employee, if he has a disciplinary sanction." In this case, an entry is made in the work book with a link to the above article of the Labor Code.

Dismissal under the article for failure to fulfill official duties occurs when the employer convicts his employee of guilty actions that violate labor law. The Labor Code (Labor Code of the Russian Federation) guarantees equal protection of the rights of both employees and the company providing jobs. Specialists who follow the schedule and properly perform their functions cannot be fired without their consent. However, non-compliance with legal norms, negligence and other official misconduct give the employer the right to part with the employee on legal grounds.

The main duties of working citizens are listed in the Labor Code of the Russian Federation (Article 21). These include: obedience to the labor regulations in force at the enterprise, responsible attitude to the property of the organization, conscientious performance of their labor functions, compliance with safety regulations, and others.

A narrower range of responsibilities associated with the performance of a specific labor function should be determined upon admission to the organization. It depends on the position of the employee and the profile of the enterprise.

They are installed:

• an employment agreement that is signed before hiring;
• an additional agreement to the labor contract (if the initial conditions change);
• documents that the organization accepts within its competence. They specify the norms of federal legislation and determine the work schedule;
• job description.

These documents must contain an exhaustive list of actions, tasks and functions that must be performed by an employee, according to his position.

Fulfillment of the obligations listed in the Labor Code of the Russian Federation and other regulatory acts is a prerequisite with which the employee agrees when holding a position in the company's staff. Failure to comply with this requirement provides for the onset of negative consequences. In labor law, this is the appointment of a disciplinary sanction that affects professional reputation.

If there are sufficient grounds, the employee may be held liable for other types of legal liability: civil (for causing material damage), administrative (for violations related to safety at the enterprise) or criminal (for theft, fraudulent activities).

An employee admitted to the staff of the organization must be familiarized with his functional duties. As evidence that the citizen has been duly notified, the documents must bear his personal signature. In its absence, it will not be possible to establish the range of duties and prove the fact of their non-fulfillment. Accordingly, there will be no grounds for imposing disciplinary sanctions on the person.

When an organization initiates the termination of an employment relationship, the question most often arises - dismissal for failure to perform official duties, which article is in the Labor Code? The right to punish an employee for violation of contractual obligations is established by article 81 (part 1, paragraphs 5 and 6). To deserve a penalty for improper behavior, it is enough to grossly violate labor laws only once (come to work drunk, commit theft) or repeatedly commit guilty offenses (violation of deadlines, being late).

The law provides for only three types of disciplinary sanctions - reprimand, warning, dismissal. Their use is strictly regulated Labor Code Russia.

To apply other punishments - to deprive bonuses, impose fines, remove from office - employers can only on the basis of the provisions of local regulations. These measures have nothing to do with disciplinary punishments.

Reasons for a charge will be:

1. Violation by an employee of the laws in force in Russia.
2. Violation of the terms of an employment contract or job description.
3. Failure to comply with the rules governing issues related to labor relations in a particular enterprise.
4. Ignoring the orders of the management of the organization.
5. Late arrival at work.
6. Absenteeism.
7. Inadequate state in which the employee stays, caused by the use of alcohol-containing substances, narcotic or toxic drugs.
8. Disclosure of confidential information (personal data of employees, trade secrets).
9. Other grounds.

If the employee has no valid reasons explaining the violation of the labor rules in force in the organization, the employer has every right to impose an appropriate punishment. Its validity period is 1 year, regardless of the chosen method. After the expiration of the specified time, the levy is considered repaid.

Dismissal is the most severe punishment that can be assigned to an unscrupulous employee. Its use will be considered legal only under the combination of the following conditions:

• the employee has committed a wrongful act;
• the fact of violation is recorded and proven;
• the employee has already violated the labor rules adopted in the organization, and an appropriate order was issued against him.

If the employee has not previously been held accountable or the disciplinary sanction has already been lifted, then it is impossible to dismiss under the article for failure to perform official duties (Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”). An employee who was fired in this way will easily regain his status in the organization.

The fact that an employee ignores his official duties may become known to the management of the organization different ways. Information about the fault of an employee may be contained in a memorandum, an act of the audit commission or a complaint.

On this basis, the employer must take the following actions:

1. Draw up an act of fixing the violation.
2. Approve the composition of the commission for conducting an internal investigation. Her tasks include: searching for evidence of the employee's guilt and compiling an official report on the results of the audit. If evidence of the employee's guilt is not found, then a penalty cannot be imposed.
3. Get an explanation from the employee or issue a refusal. This takes 2 days from the date of the request.
4. Based on the severity of the misconduct, the reasons for it, and the employee's previous behavior and attitude to work duties, choose which of the disciplinary sanctions should be applied.

The ratio of the severity of the offense committed to the chosen measure of punishment is a condition that must be strictly observed. If the dismissal for non-performance by the employee of his duties is appointed for a minor misconduct (for example, for being late), then the court will consider such a measure illegal. The employee will be reinstated and ordered to pay him compensation.

Please note: some categories of employees are under special state protection. They cannot be subject to such a measure of disciplinary action as dismissal. Even in the presence of convincing evidence of the guilt of the employee.

It belongs:

• to pregnant employees;
• clients who are on vacation;
• to temporarily disabled citizens who are on leave for health reasons.

It is possible to apply disciplinary measures in relation to such employees only after their return to work.

Requesting an explanation from an employee

To ask the employee for an explanation about the incident is the employer's duty, enshrined in part 1 of article 193 of the Labor Code of the Russian Federation. If it turns out that the employee had objective reasons to commit a violation or it was the result of force majeure circumstances, then a penalty cannot be applied.

The period during which the employer has the right to demand an explanation is established by law.

By general rule it is:

1. A month from the day the offense was discovered. The time will be increased to six months if the employee is on vacation or on sick leave.
2. 2 years from the date of commission. For offenses discovered as a result of measures that control the financial or economic condition of the organization.

Based on the arguments set out in the explanatory note, the company's management decides whether it is possible to apply disciplinary sanctions in a particular case.

The form in which the employee must explain the reasons that prompted him to violate labor discipline has not been established by the legislator. However, most often employers prefer not to listen to explanations, but to receive them in writing.

The fact is that a properly executed explanatory note can play the role of evidence in court. It shows that the employer acted according to statutory procedure.

The employer has the right to respond to the violation and dismiss the employee for failure to perform his duties only after the end of the work of the commission conducting the internal investigation.

The collection is made out by issuing an appropriate order. The procedure is as follows:

• the fact of violation of labor legislation is registered;
• disciplinary action is imposed. A sample order can be downloaded from the websites of electronic legal systems Guarantor and Consultant plus;
• give the employee to read the text of the order.

You can issue a dismissal and prosecution as a separate order, or two separate orders.

As the reason for the early termination of labor relations, the employee’s failure to fulfill his labor duties is indicated. In addition, the text provides links to the details of acts of violations previously adopted against the employee.

The employee has the right to disagree with the legality of the punishment and file a complaint with the labor inspectorate.

Dismissal procedure

To prevent an employee from contesting a dismissal, the employer must strictly follow the procedure prescribed by law.

The procedure should be as follows:

1. Prove that the employee has an outstanding penalty (give the number of the order, the act adopted by the commission).
2. Oblige the employee to write an explanation or assure the refusal.
3. Create a commission and study all the significant circumstances of the incident.
4. Check for circumstances that preclude the possibility of dismissing the employee.
5. Draw up an order and familiarize the employee with it.
6. Write down the reason for the dismissal in the work book.
7. Issue all required documents, pay wages (for hours actually worked) and pay monetary compensation for unused vacation.

Information that an employee has been forcibly deprived of a job must be timely submitted to all necessary authorities: bailiffs (if there is a writ of execution for the employee), the military registration and enlistment office (if the citizen is liable for military service), the pension fund and the employment service.

Deviation from the established procedure will lead to the fact that the employee, despite the guilt of an official misconduct, will be reinstated. This is not uncommon in jurisprudence. The employer will have to compensate him for non-pecuniary damage and pay a salary for the time that the employee was considered dismissed from the organization.