Termination of an employment contract: we act in accordance with the letter of the law. Termination of an employment contract

The Labor Code provides for a number of grounds for termination of an employment contract, which are discussed in Article 77. According to it, the employer and employee can terminate their employment relationship at the initiative of either party. In this article we will look at exactly how termination of an employment contract can occur.

General procedure

According to the Labor Code, upon termination of an employment contract, an order or instruction of the employer must be drawn up, which the employee must be familiar with by signature. If an employee refuses to sign a document, a corresponding entry is made on the order. A copy of the order or instruction, at the request of the employee, can be handed over to him.

The day of termination of the employment contract in any case is the employee’s last working day (with the exception of cases when the employee did not actually work, but retained his job).

The employer must make an entry in the work book in full compliance with the Labor Code. This means that the wording must indicate the article, paragraph or part of the article.

On the last working day - the day of dismissal - the employer is obliged to issue the employee a work book and a full payment. If an employee does not show up for documents, he must be sent a notification about the need to obtain a work book. If an employee who has not received the book on time requests that it be issued to him, the employer is obliged to do this within three days from the date of the request (meaning three working days).

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

If the employer and employee decide to terminate their employment relationship by agreement of the parties, then the employee must submit an application with a request to dismiss him in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. Such dismissal differs significantly from voluntary dismissal. For example, if an employee registers as unemployed after dismissal, his benefit will be determined not on the basis of the minimum wage, as for someone dismissed at his own request, but on the basis of the official salary at his last place of work.

The agreement to terminate the employment contract is concluded in writing and, in fact, is an additional agreement that is attached to the employment contract. It is concluded between the employee and the employer in the absence of mutual claims. On behalf of the employer, the agreement can be signed by an inspector of the HR department or another authorized person. Such an agreement, as a rule, satisfies the interests of the employee. For example, he may receive compensation for termination of an employment contract, or the administration of the enterprise will refuse to withhold the cost of training the employee (if training took place).

Termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation)

If an employee is working under a fixed-term employment contract, then three days before its expiration date - actual dismissal - the employer must warn the employee in writing. This means that the employee must be given or mailed notice of termination of the employment contract. A fixed-term contract can be concluded:

• to perform the duties of a temporarily absent employee (such an agreement must be terminated simultaneously with the return of this employee to his place of work);
• for the duration of certain work (such an agreement is terminated upon completion of the work specified in it);
• contract for seasonal work (such a contract is terminated at the end of the season).

But there is one subtlety in the issue of terminating a fixed-term contract: if a pregnant woman works under it, then the term of such contract is extended until she becomes entitled to maternity leave.

If an employee working under a fixed-term contract wants to resign of his own free will, then he must submit an application addressed to the manager (that is, notify him) three days before the date of dismissal.

Termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation)

Dismissal at the initiative of an employee is nothing more than dismissal at his own request. An employee has the right to submit an application for resignation at his own request at any time, at least two weeks before the date of dismissal, and the head of the organization - a month. The reason for such dismissal may be any personal circumstances. But if an employee quits due to:

• with admission to an educational institution;
• retirement;
• moving to another area;
• due to violations of labor laws by the employer;
• he has the right to dismissal without service.

During the working period, the employee has the right to change his mind and withdraw his application. In this case, he will continue to work in his place, unless, of course, a new employee has already been hired for him, who cannot be refused employment for some reason.

If the employee nevertheless resigns, then on the last working day the employer is obliged to pay the employee in full, paying him the due wages, compensation, vacation pay, and also issue all the necessary documents and a work book.

An employee who has not withdrawn his application, but does not insist on dismissal, and the employer has not calculated it within the required period and has not issued documents, is considered to continue working, and his application for dismissal is considered invalid.

Termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

The employer, like the employee, has the right to terminate the employment contract on his own initiative. The grounds for termination may be general or additional. General ones apply to all employment contracts, and additional ones apply to employment contracts of certain categories of employees. Termination of an employment contract on general grounds can occur in several cases:

• upon liquidation of an enterprise;
• when there is a reduction in staff or number of employees;
• due to the employee’s inadequacy for the position held (due to low qualifications, which is confirmed by certification documents, for health reasons - confirmed by a medical report);
• due to a gross one-time violation of labor duties by an employee (absenteeism, going to work in a state of alcohol, drug or toxic poisoning, disclosure of state or commercial secrets);
• due to repeated failure to fulfill job duties (if the employee already has disciplinary sanctions);
• committing theft, embezzlement, intentional destruction and damage to property;
• violations of labor protection requirements that resulted in an accident, breakdown, catastrophe or created a real threat thereof;
• for committing immoral acts (for teaching staff);
• in case of loss of trust (for financial workers);
• for making unfounded decisions that resulted in the unlawful use of property (for managers, deputy managers, chief accountants);
• for providing false documents when concluding an employment contract.

It is worth noting that in order to terminate an employment contract with an employee on one of these grounds, the employer must have supporting documents. This means that appearing at work while intoxicated must be documented by an act confirming the employee’s presence at the workplace and by a medical report.

An employer cannot fire an employee who is on sick leave or on vacation (with the exception of liquidation of the enterprise).

If the employer is an individual entrepreneur, then upon termination of his activities he can terminate employment contracts with his employees. In this case, the basis for termination of the employment contract will be an extract from the Unified State Register of Individual Entrepreneurs.

Additional grounds for terminating an employment contract

Termination of an employment contract by an employer is also possible on additional grounds that are specified in other regulations. For example, teaching staff may be dismissed for using inappropriate methods of education (this includes physical or psychological violence) or violating the Charter of an educational institution (Federal Law “On Education”), and civil servants for disclosing information constituting state secrets or engaging in entrepreneurial activities (Federal Law "On public service").

With whom the employment contract cannot be terminated at the initiative of the employer?

• pregnant women;
• women who have children under three years of age;
• single mothers who have children under 14 years of age or have a disabled child under 18 years of age;
• other persons who raise children without a mother.

Dismissal by transfer

Such dismissal can only be made if there is a corresponding application from the employee and confirmation from another employer of consent to hire him (this can be a letter of guarantee or a signed application for employment). If we are talking about election to any elective position, the employee must provide a document confirming the election.

Dismissal of an employee due to refusal to continue work (Article 75 of the Labor Code of the Russian Federation)

Such dismissal is possible if there is a change in the owner of the organization’s property, reorganization or change in the jurisdiction of the institution. In this case, the employee simply submits a resignation letter. This rule does not apply to the chief accountant, manager and his deputy. The employment contract with them can be terminated at the initiative of the new owner of the organization’s property within three months after his property rights arise.

Dismissal of an employee due to a change in significant working conditions

In practice, situations often arise when, when organizational or technological working conditions change, the terms of the employment contract also change, but without a fundamental change in the labor function. The employee must be notified in writing of such changes two months before their introduction. If the employee is not satisfied with the new conditions, the employer is obliged to offer him another job (the offer is also made in writing), which corresponds to his qualifications and state of health. If there is no such work, and the employee does not agree to work under the changed conditions, the employment contract is terminated (Article 73 of the Labor Code of the Russian Federation).

Sometimes changes in working conditions can lead to mass layoffs. In these cases, a part-time work schedule is possible, which can be introduced in agreement with the trade union for a period of up to six months. If the employee refuses to work under the new conditions, then the contract is terminated according to Article 81 of the Labor Code of the Russian Federation.

Dismissal due to health reasons

The employee has the right to apply for another job in accordance with his state of health, which must be confirmed by medical documents. But if the organization does not have suitable work or the employee refuses the transfer, then the employment contract is terminated according to Article 77, paragraph 8 of the Labor Code of the Russian Federation. The documents must include a medical report, an employee’s application for transfer to another job, and documents confirming the lack of suitable work (or the employee’s refusal to transfer to a specific job).

Termination of an employment contract due to the employer's relocation to another location

It happens that the owner of an enterprise transfers production to another area. In this case, the employer is obliged to notify employees in writing about the transfer of production, and upon receiving a refusal to transfer, together with the organization, terminate the employment contract with those who refused.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation)

The grounds for termination of an employment contract with the wording “due to circumstances beyond the control of the parties” can be very different, for example:

• conscription;
• reinstatement of a former employee (by court or decision of the labor inspectorate);
• impossibility of transfer to another job at the request of the employee;
• failure to be elected to office;
• recognition of the employee as disabled according to medical documents;
• conviction of an employee to punishment (by a court decision), disqualification, administrative punishment, excluding the possibility for the employee to perform his duties;
• death of an employee or his unknown absence;
• emergency circumstances (natural disasters, catastrophes, wars, epidemics, accidents), which are recognized by a decision of the Government of the Russian Federation.

The procedure for terminating an employment contract in this case requires the provision of documentary evidence of the occurrence of circumstances, and then, based on the documents submitted (a summons from the military registration and enlistment office, a death certificate, a court decision, a medical report, etc.), an order to terminate the employment contract is issued.

But in some cases, the employer may offer the employee a transfer to another position. For example, when a former employee is reinstated by a court decision, the employer has the right to offer the employee who worked in his place another job.

Termination of an employment contract due to violations during its conclusion (Article 84 of the Labor Code of the Russian Federation)

Sometimes the labor inspectorate reveals violations that were committed when concluding an employment contract. Such contracts must be terminated by law. The reasons can be very different, for example:

• the contract was concluded with an employee who, by a court decision, is prohibited from holding a given position or performing a specific job (in this case, the employee must first be offered another job in writing, and if he refuses, the employment contract with him must be terminated);
• the contract was concluded for the performance of work that is contraindicated for the employee due to health reasons (there must be a medical report);
• the contract was concluded with an employee without specialized education (if, in accordance with regulations, the position or type of work performed by the employee requires special education of a certain level).

In any of these cases, the employer who allowed the conclusion of an unauthorized contract is obliged to pay the employee severance pay in the amount of average earnings. The exception is a situation where the employee misled the employer. In this case, the contract with the employee is terminated at the initiative of the employer (providing false documents).

Features of terminating an employment contract with foreign citizens

If the employer collaborated with a foreign citizen, then within three working days after terminating the employment contract with him, he must inform the territorial body of the Federal Migration Service, the employment center and the territorial tax authority.

Between the employee and the employer are completed at the initiative of the former. At the same time, the resignation letter is not always written voluntarily; the parties simply agree on exactly this method of ending their relationship. After all, employees usually do not want a record to appear in their work book indicating that the employment contract was terminated at the initiative of the employer.

The most common reasons for dismissal

The legislation - the Labor Code of the Russian Federation - provides a list of cases in which an employee can be removed from his position without his consent. Contrary to popular belief, this happens not only in situations where the boss is dissatisfied with the work of a subordinate. Thus, termination of a contract at the initiative of the employer is also possible in cases independent of the behavior of employees:

The organization or entrepreneur officially ceases its activities;

Staff cuts are being made;

There has been a change in the owner of the organization's property (only the deputy, manager and chief accountant can be fired).

But there are often cases when dismissal occurs due to failure to fulfill direct duties or a number of violations. Termination of an employment contract at the initiative of the employer without the consent of the employee is possible if:

Inconsistency of the employee’s health status with the position held (which must be confirmed by a certificate) or due to his insufficient qualifications (ascertained in the certification results);

Failure to fulfill labor duties (the violation must be repeated, each fact must be documented);

A single gross violation (absence from work without a valid reason for more than 4 hours in a row, appearing at the enterprise in a state of drug or alcohol intoxication, disclosure of protected secrets, theft, embezzlement, intentional damage to property, violation of labor protection, provision of false data).

Dismissal of management and employees with access to state secrets

Termination of an employment contract at the initiative of the employer can happen not only to ordinary workers; managers can also be dismissed from their positions without consent. In situations where the manager, his deputies or an accountant made a decision that resulted in damage to the integrity of the enterprise’s property or grossly violated labor duties, these employees may be dismissed. The legislation also stipulates the termination of employment contracts at the initiative of the employer with those who, due to their occupation, had access to state secrets, but lost the right to access them.

Probation

If an employee has just gotten a job, then, as a rule, he is given time to prove himself, he has the opportunity to show all his abilities. But managers are not always satisfied with the work of new subordinates. In this case, they can initiate termination of the employment contract during the probationary period. The main thing is to have time to do this before the employee’s verification period ends, and be sure to notify him about this 3 days in advance. It is worth noting that such an employer’s decision can be challenged in court.

The legislation provides the grounds on which the employer has the right to terminate. They are established by Art. 81 Labor Code of the Russian Federation. Let's look at the norm in more detail.

Grounds

Dismissal under Art. 81 of the Labor Code of the Russian Federation is allowed when:

Gross violations by an employee

They are defined in paragraph 6 of Art. 81 Labor Code of the Russian Federation. Gross violations by an employee of his duties include:

Notes

Termination of the contract during liquidation and reduction under Part 1 of Art. 81 of the Labor Code of the Russian Federation is permitted if it is not possible to transfer an employee to another job available to the employer, with the written consent of the employee. This may be a vacant position corresponding to the qualifications, a lower-level or lower-paid position. In this case, the health status of the employee must be taken into account. The employer, in accordance with part 2 of Art. 81 of the Labor Code of the Russian Federation, is obliged to offer the employee all vacancies that meet the above requirements and are available in the given area. The manager must additionally offer work in another territory, if this is expressly established in the In case of termination of the activities of a division of the enterprise located in another area, the contract is terminated in the manner prescribed for

Nuances

Termination of the contract on the grounds established in clauses 7 and 8 of part 1 of Art. 81 of the Labor Code of the Russian Federation, when, as a result of guilty actions, the management of the enterprise has lost confidence in the employee, the immoral act was committed outside of work or at the place of its implementation, but is not related to the performance of duties, is allowed no later than 1 year from the date of discovery of the violation. It is prohibited to terminate a contract during an employee's vacation or sick leave period. The exception is cases of termination of the contract on the grounds established by paragraph 1 of Art. 81 Labor Code of the Russian Federation.

Liquidation of a company or termination of an individual entrepreneur's work

This basis for termination of the contract is provided for in paragraph 1 of Art. 81 Labor Code of the Russian Federation. The legislation does not clarify the concept of “liquidation of an enterprise”. Accordingly, when applying the commented norm, it is necessary to be guided by the provisions of the Civil Code. Article 61, in particular, defines the procedure for liquidating an enterprise. It involves the termination of the company’s activities without the transfer of responsibilities and rights by way of succession to other persons. Exceptions are made in cases specified by law. Termination of contracts with employees is carried out on the basis of a decision made at a meeting of company participants. For direct dismissal, the fact of liquidation of the enterprise is important. If disputes arise regarding the reinstatement of employees at work, proof of the actual termination of the organization's existence falls on the defendant. As for an individual entrepreneur, the corresponding decision can be made by himself or by the court (in connection with the recognition of his insolvency). Termination of the work of an individual entrepreneur may also be caused by a refusal to renew a permit to carry out certain activities or by the expiration of the state registration certificate.

Reduction

Termination of relations with employees on the basis established by clause 2 of Art. 81 of the Labor Code of the Russian Federation, is allowed subject to a number of conditions. In particular:

When terminating contracts on the grounds established in clause 2 of Art. 81 of the Labor Code of the Russian Federation, when determining whether an employee has a preemptive right to remain at the enterprise, qualifications and labor productivity indicators are taken into account.

Employee non-compliance

Art. 81, clause 3 of the Labor Code of the Russian Federation determines the reason for the impossibility of continuing the citizen’s stay on the staff of the enterprise. An employee’s non-compliance implies insufficient qualifications, which is confirmed by the results of certification. An assessment of an employee’s business qualities is carried out in conjunction with an analysis of other evidence with the participation of a representative body of employees of the enterprise. The procedure for conducting certification activities is determined by federal legislation, as well as other regulations in the field of labor. Termination of the contract in accordance with paragraph three of Art. 81 of the Labor Code of the Russian Federation is allowed provided that it is impossible to transfer the employee to another position with his consent.

Change of owner

Termination of the contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed with a certain category of workers. These include, in particular, the head of the enterprise, his deputies, as well as the chief. accountant. Other employees cannot leave due to a change of ownership. In this case, one nuance should be taken into account. Termination of relations under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation is allowed if a change of owner has occurred in relation to the property of the entire enterprise as a whole. The contract with the officials listed above cannot be terminated if the jurisdiction/subordination of the enterprise has changed without fulfilling the main condition.

Repeated failure to fulfill duties

In case of repeated violations of discipline, termination of the contract with the employee is allowed if he has received penalties for previously committed offenses. Sanctions are provided for an employee for failure to fulfill the duties established in the rules of procedure or the contract. If disputes arise regarding dismissal for violations, the head of the enterprise must prove that the misconduct was actually committed and could become the basis for termination of the relationship. In this case, the employer is obliged to comply with the deadlines specified in Art. 193 TK.

Single violation

Paragraph 6 of the commented norm establishes cases in which a contract with an employee may be terminated if he commits a gross misconduct once. The list of violations is considered exhaustive. At some enterprises, personnel activities involve confidential information. Dismissal for disclosing it is permitted subject to a number of conditions. In particular, the corresponding obligation must be established in the contract, specific information that is not subject to public disclosure is determined, the information was entrusted to the employee in connection with the performance of his duties.

Conclusion

Dismissal of employees must be carried out exclusively on grounds established by law. In this case, the employer is obliged to comply with the rules and deadlines. In particular, the head of the enterprise must notify the staff about upcoming events in writing against signature, and issue an order/instruction. Compliance with legal requirements regarding payments to resigning employees is also important.

The employer is obliged to strictly follow the law in the event of termination of the employment contract on its part. Find out what the legal grounds for termination may be and when they are not allowed.

Read our article:

Labor Code of the Russian Federation: dismissal at the initiative of the employer

The Labor Code is aimed at protecting the interests of both parties: both the employer and the employees. In order for the enterprise's operations to be effective and its production goals to be achieved, management has the right to select employees and part with those who, for one reason or another, no longer meet the personnel requirements. Employees must be “insured” against groundless dismissal.

The legislation provides a clear understanding of situations in which the employer has the right to take his own initiative to terminate the employment contract. They are listed in Articles 71 (Part 1, regarding failure to complete the probationary period) and 81 (Part 1). Undoubtedly, there can be no “variations” on the topic of legal grounds for dismissal and the procedure for carrying out this procedure. The employer must strictly follow the law.

The employee has more opportunities: he is not obliged to explain anything to anyone and can terminate his contract at any time, according to Article 80 of the Labor Code.

Grounds for termination

Many employers still do not understand that the term “initiative” is not equivalent to the concept of “desire.” Dismissal must necessarily occur with one or another justification, understandable, actually existing and legitimate. An employee always has the right to initiate a labor dispute, and if a violation of the law is revealed, he will be returned to his previous place, and the organization will be punished.

All reasons leading to termination of a contract can be divided into two categories depending on the reason. Let's tell you more about them.

Due to the employee's fault

An employer has the right to dismiss an employee if he is caught in a single gross violation of labor discipline. Article 81 of the Labor Code lists in detail the possible options and clarifies what exactly can be attributed to such an assessment of the employee’s actions. So, this is absenteeism or attendance under the influence of alcohol, toxins, or drugs. Disclosure of secret information that became known in the course of work is punishable by dismissal. The law is also harsh in relation to those who “freely” handle the organization’s property: they steal, waste, and allow intentional damage, including irreversible damage.

Safety also plays a role in the reasons for dismissal. If the labor safety commission reveals violations in the actions of the employee, which were or could have been followed by serious consequences, the culprit may be dismissed.

In addition, the actions of an employee engaged in values ​​that caused distrust on the part of the employer can also serve as justification. Some other actions are also punishable, in particular providing false information about circumstances of a property nature.

Without the employee's fault

The second group of reasons leading to dismissal are situations that do not depend on the specific actions of the employee, but are caused by the situation at the enterprise and the characteristics of the profession (or position).

First of all, this is, of course, the liquidation of the organization as a whole, or (in the case of individual entrepreneurs) termination of activities. Also one of the common reasons is a reduction in the number of employees in the organization.

The structure of legislative documents is quite complex, and in particular, it is important to note that some grounds for dismissal can be applied to almost all categories of employees (except for those listed below in the article), and some, specialized ones, apply only to employees performing certain functions. It is logical that teachers and managers, for example, are subject to more stringent requirements. They are listed in other articles of the Labor Code and some other federal laws.

For example, the first persons of the organization (chief accountant, manager, deputies) may be fired if the owner of the organization changes. For teachers, immoral acts, even those committed outside of work, are fraught with dismissal.

Citizens who use false educational documents (and others) to apply for a job may also be fired.

Certifications that are carried out at the enterprise can also identify a circle of people who do not meet the requirements for the position. And this is also a reason for dismissal.

note

The reasons for termination of an employment contract may be separately listed in the employment contract.

Termination procedure

The dismissal procedure is also prescribed by law. After a decision is made that a particular employee will be fired, the basis is determined, it is necessary to send him a notice that the contract will be terminated, and give him time to find a new job. Needless to say, the notice must be in writing.

In some cases, it is important to obtain and take into account the opinion of a trade union if the employee is a member of one. This action has its own nuances (Articles 82 and 373 of the Labor Code). However, the trade union has no right to delay or refuse to justify its decision. He has only seven working days from the date of receipt of the draft order to dismiss the employee, and the union’s opinion must be motivated and explained. Moreover, the employer has the right, no later than a month after the trade union has expressed its opinion, to dismiss the employee. The HR specialist should remember that the indicated periods do not include “sick leave” and vacations; the waiting period must be extended for their duration.

If we are talking about the dismissal of a minor employee, that is, one who has not reached the age of 18, it is necessary to obtain the consent of the State Labor Inspectorate and the Commission on Minors' Affairs.

Let us separately say about the situation when it is planned to dismiss staff representatives participating in collective bargaining, and precisely during the period of their conduct. They cannot be dismissed without the consent of the body authorizing the representation, except in cases where the dismissal occurs for reasons specified in other federal laws.

When termination of a contract is not allowed

In addition to the grounds for dismissal, the Labor Code also defines categories of personnel to which termination of a contract at the request of the employer is not applicable.

Let us list them; in brackets is an article of the Code that provides exceptions to these rules.

• Employees who are on vacation or have temporary disability (clause 1, part 1, article 81 of the Labor Code of the Russian Federation). If it becomes necessary to part with such employees, it is necessary to notify them of the dismissal in due time and record receipt of the notification, and then wait until the end of the vacation or sick leave.
• Women “in position” (clause 1, part 1, article 81 of the Labor Code of the Russian Federation).
• Mothers of young children under 3 years old, single mothers with children under 14 years old, single mothers with disabled children under 18 years old (Parts 1, 7-8, 11 of Article 81 of the Labor Code of the Russian Federation).

Guarantees and compensation

Since the employment agreement will be terminated at the request of the employer, it seems reasonable that in this case the former employee is entitled to certain financial compensation guaranteed by law. They can be divided into two groups: general and special.

General guaranteed payments include those that are not related to the reason for dismissal. First of all, this is compensation for unused vacation.

This type of payment is required to be paid even if the employee himself is to blame for being fired (for example, if he did not comply with labor regulations, was absenteeism, etc.). It will be calculated in the standard manner: the amount of average daily earnings is multiplied by the number of allotted days, depending on the date of dismissal, which, in turn, is determined based on the elapsed 12 months.

note

Special payments are determined by the category to which the employee belongs (for example, it is important whether he is a pensioner) and the immediate reason for termination of the contract. They are aimed at leveling and mitigating the very situation of changing jobs and are designed to provide support to the person being fired. Especially many guarantees are provided for those employees who leave the company due to layoffs. In addition to general compensation, they are provided with severance pay for two months, and in some cases even three.

In addition, special guarantees include the employer’s obligation to offer the employee other employment in the organization, possibly requiring less qualifications. In some cases, the collective agreement obliges

In any case, it is important to remember that all guarantees for dismissed employees must be carefully observed. At the slightest violation, the court, most likely, will not side with the employer and will oblige the dismissed person to be reinstated and paid for the “downtime”.

An employment contract can be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

6) a single gross violation by an employee of labor duties:

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);

b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;

8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;

9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid. 13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

A comment:

The procedure for terminating an employment contract at the initiative of the employer is determined by Article 81 of the Labor Code of the Russian Federation. The fundamental difference between this article and the one discussed above is that in all the cases listed below, early termination of an employment contract is carried out at the initiative of the employer, although the motives for the latter’s actions can be very different.

Meanwhile, as practice shows, the basis for early termination of most employment contracts is precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.

The commented article provides a list of grounds for termination of an employment contract at the initiative of the employer. One of the most important legal guarantees of the exercise of the right to work is a strictly limited list of grounds for dismissing workers at the initiative of the employer. This article provides for 13 such grounds, with clause 3 of this article including two grounds, and clause 6 – five. As for paragraph 14 of the commented article, it is of a reference nature: termination of an employment contract can also occur in cases established by both the Labor Code and other federal laws. Thus, the list of grounds is strictly defined by the current Labor Code and federal laws.

The law establishes for each of the grounds for termination of an employment contract its own procedure and guarantees for the employee upon dismissal. At the same time, the commented article establishes a single guarantee for employees for all cases of dismissal at the initiative of the employer listed in it (except for paragraph 1). This guarantee consists of a ban on the dismissal of an employee during the period of his temporary disability and while on vacation.

Paragraph 1 of the commented article establishes the grounds for termination of an employment contract, possible in the following cases: a) liquidation of the organization; b) termination of activity by an individual entrepreneur.

The concept of liquidation of an organization is contained in the Civil Code (see Article 61 of the Civil Code).

The basis for dismissal of employees under paragraph 1 of the commented article is the decision to liquidate the organization (enterprise). Employees must be notified by the employer personally and against signature of the upcoming dismissal due to the liquidation of the organization (enterprise) at least two months before dismissal. The employer, with the written consent of the employee, has the right to terminate the employment contract with him without notice of dismissal two months in advance, while simultaneously paying additional compensation in the amount of two months' average earnings. Additional compensation is paid to the employee on the day of dismissal along with the payment of severance pay (see Article 180 of the Labor Code and commentary thereto). Unlike liquidation, reorganization of an organization (enterprise) or change of ownership of property are not independent grounds for dismissal of employees.

If the activities of a branch, representative office or other separate structural unit of an organization (enterprise) located in a different area from the location of the legal entity are terminated, then the termination of employment contracts with employees is carried out according to the rules provided for cases of liquidation of the organization (enterprise). The commented norm, along with branches and representative offices, also indicates other separate structural divisions of the organization (enterprise), although from the meaning of Art. 55 of the Civil Code it follows that representative offices and branches are the only possible separate structural divisions of a legal entity.

The basis for termination of an employment contract is the termination of the activities of not any individual who is an employer, but only the employer - an individual entrepreneur.

In accordance with Art. 20 of the Labor Code, employers - individual entrepreneurs are individuals registered in the prescribed manner as individual entrepreneurs, as well as private notaries, lawyers who have established law offices, and other persons whose professional activities in accordance with federal laws are subject to state registration and (or) licensing, who have entered into an employment contract with employees. Thus, paragraph 1 of the commented article applies only in the event of termination of activity by the employer - an individual entrepreneur.

Clause 2 of the commented article provides for the termination of employment contracts with employees due to a reduction in the number or staff of employees.

The right to determine the required number or staff of employees belongs to the employer. The reduction in the number or staff of employees must be carried out in compliance with the guarantees provided for in Art. Art. 82, 179, 180 and 373 of the Labor Code (see the indicated articles of the Labor Code and commentary to them). A reduction in the number or staff of employees will be legal if the following conditions are met: a) the reduction in number or staff must be real (valid); b) the preferential right to remain at work has been observed (see Article 179 of the Labor Code and commentary thereto); c) the employee was warned in advance, at least two months before dismissal, about the upcoming dismissal (see Article 180 of the Labor Code and commentary thereto); d) an elected trade union body participated in the consideration of this issue (see Articles 82 and 373 of the Labor Code and commentary thereto); e) the employee refused the job offered to him or there was no corresponding job in the organization (see part 3 of the commented article).

The Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004, indicated to the courts that when considering cases of reinstatement of civil servants dismissed due to the liquidation of a state body or reduction of civil service positions, Art. Art. 31, 33 and 38 of the Federal Law "On the State Civil Service of the Russian Federation".

In this regard, the defendant must provide evidence confirming that after the notice of dismissal, the civil servant was offered vacant positions in this government body, and in their absence, at least one vacant position in another government body, and he refused the offered job or refused from undergoing retraining (requalification) in the manner established by the legislation of the Russian Federation and constituent entities of the Russian Federation on public service.

In this case, the offer of a vacant position is understood as a proposal coming from an authorized official of a state body for appointment to a public position in the civil service, including a lower one, the duties for which the civil servant can perform taking into account his profession, qualifications and previously held position.

Evidence in cases of this category, in particular, may be copies of acts on the appointment of a civil servant to a civil service position and his dismissal from this position, a copy of the act on the liquidation of a state body or on the reduction of its staff (number), a copy of the warning about the dismissal of a civil servant , a copy of the act (certificate) on the offer of a vacant position, staffing schedules of the department of the government body in which the civil servant held the position, on the day the civil servant was warned about dismissal and on the day of dismissal, a certificate of salary (remuneration) of the civil servant.

Termination of an employment contract due to the employee’s inadequacy for the position held or work performed is possible due to insufficient qualifications. The employer must prove that the employee does not meet the requirements.

Inconsistency due to insufficient qualifications must be confirmed by objective data obtained as a result of employee certification. For this purpose, a certification commission is created. The procedure for certification of employees in a particular organization, categories of employees are determined by special regulatory legal acts, as well as provisions approved by the employer, taking into account the opinion of the representative body of employees (Part 2 of the commentary article). It is unacceptable to terminate an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to short work experience, as well as on the grounds of lack of special equipment, if, according to the law, it is not a mandatory condition for concluding an employment contract. An employer does not have the right to terminate an employment contract with an employee on the above grounds if certification has not been carried out in relation to this employee. In this case, the conclusions of the certification commission about the employee’s business qualities are subject to assessment in conjunction with other evidence in the case.

Termination of an employment contract due to the employee’s inadequacy for the position held or the work performed due to health conditions or insufficient qualifications is allowed only if the employer is deprived of the opportunity to transfer the employee to another job with his consent (see Part 3 of Article 81 of the Labor Code and commentary thereto) ). For an employee who is a member of a trade union, it is necessary in accordance with Part 2 of Art. 82 of the Labor Code is a reasoned opinion of the relevant elected trade union body.

Based on clause 4 of the commented article, the employment contract is terminated only with the head of the organization, his deputies and the chief accountant. The new owner of the property, having assumed his rights, has the right to dismiss the specified management employees within three months. An employment contract cannot be terminated with other employees on this basis (see Article 75 of the Labor Code and commentary thereto).

It should be taken into account that termination of an employment contract on the above grounds is possible only in the event of a change in the owner of the organization’s property as a whole. These persons cannot be dismissed under clause 4 of the commented article when the jurisdiction (subordination) of the organization changes, unless there is a change in the owner of the organization’s property.

A change in the owner of an organization’s property should be understood as a transition (transfer) of ownership of the organization’s property from one person to another person or other persons, in particular during the privatization of state or municipal property, i.e. upon alienation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities (Article 1 of the Federal Law “On the Privatization of State and Municipal Property”, Article 217 of the Civil Code); when property owned by an organization is converted into state property (last paragraph 2 of Article 235 of the Civil Code); when transferring state enterprises to municipal ownership and vice versa; when transferring a federal state enterprise to the ownership of a constituent entity of the Russian Federation and vice versa.

Since in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code, the owner of property created from the contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants, by virtue of paragraph. 2 p. 2 art. 48 of the Civil Code have only rights of obligation in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of an employment contract under clause 4 of the commented article c persons listed in this norm, since in this case the owner of the property of a business partnership or company still remains the partnership or company itself and there is no change in the owner of the property (see paragraphs 2 - 4 of paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03. 2004 N 2).

According to paragraph 5 of the commented article, it is permissible to dismiss an employee on the basis of repeated failure by the employee to fulfill his job duties without good reason and in the presence of disciplinary sanctions.

The dismissal of an employee in accordance with this paragraph will be lawful only if the following circumstances are met: a) there has been a violation of labor discipline, the employee has committed a disciplinary offense, i.e. labor offense - did not fulfill his labor duties without good reason (see Article 192 of the Labor Code and commentary thereto); b) the employee already has a disciplinary sanction for the last year of work and at the time of the repeated violation of discipline it has not been lifted or extinguished (see Article 194 of the Labor Code and the commentary thereto); c) the rules and deadlines for imposing a disciplinary sanction have been observed (see Article 193 of the Labor Code and commentary thereto).

When considering a case on the reinstatement of a person dismissed under clause 5 of the commented article, or on challenging a disciplinary sanction, it should be taken into account that failure by an employee to perform labor duties without good reason is failure to perform or improper performance, through the fault of the employee, of the labor duties assigned to him (violation of legal requirements , obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.) (see paragraph 1 of paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2). Dismissal on this basis is considered dismissal due to the fault of the employee, and therefore the degree and form of fault must be taken into account.

Paragraph 6 of the commented article provides for the termination of an employment contract for a single gross violation of labor duties by an employee. Since the commented norm is applied in cases of violation of labor discipline, the terms and rules for imposing disciplinary sanctions must be observed (see Article 193 of the Labor Code and the commentary thereto).

Gross violations of labor discipline (labor duties) include the circumstances set out in paragraph 6 of this article, and each of them is an independent basis for termination of the employment contract. It should be borne in mind that the list of gross violations of labor duties, which gives grounds for termination of an employment contract with an employee under clause 6 of the commented article, is exhaustive and is not subject to broad interpretation (see clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

Subparagraph “a” – absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). Dismissal on this basis can be made:

a) for absence from work without good reason, i.e. absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

b) for an employee being outside the workplace without good reason for more than four hours in a row during the working day;

c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the two-week warning period (Part 1 of Article 80 of the Labor Code);

d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1 Article 292, part 1 of Article 296 of the Labor Code);

e) for the independent use of vacation days, as well as for unauthorized going on vacation (main, additional). It is necessary to take into account that the use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with rest days). in accordance with Part 4 of Article 186 of the Labor Code and Article 9 of the Law of the Russian Federation dated 06/09/1993 N 5142-1 “On the donation of blood and its components” (as amended on 07/24/2009) a day of rest immediately after each day of donating blood and its components components) (see paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

When considering the case of reinstatement at work of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer itself (Articles 72.1, 72.2 of the Labor Code). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement at his previous job (see paragraph 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the wages of the reinstated employee can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced (see paragraph 41 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2) .

The day of dismissal is considered to be the last day of work preceding the absence (for example, in case of a long absence or in the case when the employee began work after absenteeism).

Subparagraph “b” – showing up at work in a state of alcohol, narcotic or other toxic intoxication. Such a condition must be confirmed by a medical report or witness testimony. It does not matter when the employee was in a state of alcohol, drug or toxic intoxication - at the beginning or at the end of the working day. Dismissal of an employee on this basis is the right of the employer, but he is obliged to remove such employee from work (not allow him to work) (see Article 76 of the Labor Code and commentary thereto).

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 explains that dismissal on this basis can also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility where on behalf of the employer he had to perform a labor function (see paragraph 2 of paragraph 42 of the Resolution).

Subparagraph “c” is a novelty in the Labor Code. A one-time violation by an employee of labor duties includes the disclosure of a secret protected by law - state, commercial, official or other, which became known to the employee in connection with the performance of his labor duties. Termination of an employment contract will be lawful in the presence of the following circumstances: the employment contract directly states the obligation not to disclose secrets, as well as an indication of what specific information constituting state, commercial, official or other secrets protected by law, the employee undertakes not to disclose; This information is indeed, according to the current legislation, a state, commercial, official or other secret protected by law.

The commented subparagraph is supplemented by a provision according to which an employee’s employment contract can be terminated for disclosing the personal data of another employee. An employee’s personal data includes information necessary for the employer in connection with labor relations and relating to a specific employee (see Article 85 of the Labor Code and commentary thereto). In accordance with Art. 65 of the Labor Code such information is: personal data of the employee; information about work experience; information about education, qualifications, availability of special knowledge; health information; personalized data; information contained in military registration documents, as well as other information contained in the employee’s personal file.

Subparagraph “d” recognizes as a gross one-time offense the theft (including minor) of someone else’s property, embezzlement, intentional destruction or damage to property at the place of work, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties. If there are no such documents (a court verdict or a resolution of an administrative body - the police), then the employee cannot be dismissed on this basis.

When considering cases of reinstatement at work of persons whose employment contract was terminated under sub. "d" clause 6 of the commented article, the courts must take into account that on this basis, employees who have committed theft (including petty) of someone else's property, embezzlement, intentional destruction or damage may be dismissed, provided that these unlawful actions were committed by them at the place of work and their guilt has been established by a court verdict that has entered into legal force or by a resolution of a court, body or official authorized to consider cases of administrative offenses.

Any property that does not belong to a given employee should be regarded as someone else's property, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization.

The established monthly period for applying such a disciplinary measure is calculated from the date of entry into force of a court verdict or decision of a judge, body, official authorized to consider cases of administrative offenses.

Subparagraph "d" - termination of an employment contract on this basis is lawful only if the violation of labor protection requirements entailed serious consequences (accident, accident) or knowingly created a real threat of grave consequences (for example, a gross violation of safety regulations could lead to accident, fire, etc.). The fact of violation by an employee of safety requirements, labor protection requirements and standards must be established and documented (for example, in the form of an act, an expert opinion, a resolution of a federal labor protection inspector, etc.). Violation of labor protection rules must be established by the labor protection commission or the labor protection commissioner, whose activities are regulated by the Model Regulations on the labor protection committee (commission), approved by Order of the Ministry of Health and Social Development of Russia dated May 29, 2006 N 413, and Recommendations for organizing the work of the commissioner (trusted ) persons responsible for labor protection of a trade union or work collective, approved by Resolution of the Ministry of Labor of Russia dated 04/08/1994 N 30.

Paragraph 7 of the commented article contains an additional basis for terminating an employment contract with an employee for his guilty actions, provided that he directly serves monetary or commodity assets (this must be stipulated in the content of the employment contract, its annexes in the form of a job description, etc.) and that these actions give rise to a loss of confidence in him on the part of the employer. This provision was previously contained in Art. 254 Labor Code. On this basis, an employee who directly services monetary (for example, a cashier, not an accountant) or commodity assets (for example, a storekeeper, delivery driver, salesman, etc.) can be dismissed. In this case, it does not matter what type of financial responsibility is assigned to the employee, and the employer must prove the mistrust of the employee with specific facts (for example, a deficiency report, etc.). Dismissal on this basis is permitted no later than one year from the date of discovery of the misconduct.

If it is established in the manner prescribed by law that theft, bribery and other mercenary offenses have been committed, these employees may be dismissed on the grounds of loss of trust in them and in the case when these actions are not related to their work (see paragraph 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 03/17/2004 N 2).

The norm of paragraph 8 of the commented article was also contained in Art. 254 of the Labor Code and, in essence, has not undergone changes. An employment contract may be terminated if an employee performing educational functions commits an immoral offense that is incompatible with the continuation of this work. An immoral offense is a guilty action or inaction that violates the basic moral norms of society and contradicts the content of the educational and work function of a teacher (for example, behavior that degrades human dignity, being under the influence of alcohol or drugs, obscene language, etc.). An immoral offense that is incompatible with the continuation of work can be committed by an employee performing relevant functions both at work and at home. However, persons cannot be dismissed on this basis if they work in a school, boarding school, kindergarten, etc., but perform technical rather than educational duties (watchman, cook, cleaner, etc.). When dismissing, it is necessary to take into account the time that has passed since the commission of the offense (no later than one year), its severity and the subsequent behavior of the employee.

Paragraph 9 of the commented article applies only to a certain category of employees - the head of the organization (branch, representative office), his deputies and the chief accountant. Other employees cannot be dismissed on this basis. Dismissal under clause 9 of this article is possible in the event of an unjustified decision that entails a violation of the safety of property, its unlawful use or other damage to the organization’s property. It follows from this that a causal connection must be established between the unreasonable decision and the adverse consequences that occur. An unreasonable decision must be specific. A decision that contradicts the current labor legislation, other federal laws, regulations, as well as a decision made in excess of the powers of employees specified in clause 9 can be considered unfounded. Although one cannot ignore the fact that in each specific case the validity or the employer will make the decision unreasonable. Dismissal on this basis should be classified as dismissal for violation of labor discipline, therefore the rules and deadlines for imposing disciplinary sanctions must be observed (see Article 193 of the Labor Code and commentary thereto).

Paragraph 10 of the commented article provides for the termination of an employment contract with the head of an organization (branch, representative office) and his deputies for a single gross violation of their duties. This additional basis for the dismissal of the manager and his deputies refers to disciplinary dismissals (see Article 192 of the Labor Code and commentary thereto). Gross violation is an evaluative category. According to established practice (previously - clause 1 of Article 254 of the Labor Code), gross violations include failure to fulfill important duties for the organization, resulting in harm to the health of employees, as well as causing significant property or other damage. However, it must be borne in mind that the basis for dismissal can only be a violation of those duties that are determined for a given employee by an employment contract, agreement, his job description and other regulatory legal acts.

Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2 indicates that, based on the content of paragraph 10 of the commented article, heads of other structural divisions of the organization and their deputies, as well as the chief accountant of the organization cannot be dismissed on this basis. However, an employment contract with such employees may be terminated for a one-time gross violation of their labor duties under clause 6 of this article, if the acts committed by them fall under the list of gross violations specified in sub-clause. “a” – “d” clause 6 of this article, or in other cases if this is provided for by federal laws (paragraph 4 of clause 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation).

Paragraph 11 of the commented article provides for the dismissal of an employee if he submits false documents or knowingly false information to the employer when concluding an employment contract, provided that this information has a significant impact on the very fact of concluding the employment contract. This is a short story in TK. However, this version of the norm, without additional clarification, raises many questions in practice. Each employer, in our opinion, must prove the falsification of documents by appropriate examination (for example, forgery of a diploma, certificate, etc.). As for the information, it seems that we should only talk about those that are important for the job for which the employee was hired.

Paragraph 13 of the commented article provides for the termination of an employment contract with the head of the organization, members of the collegial executive body of the organization in cases provided for by the employment contract. Additional grounds for termination of an employment contract are established by agreement of the parties. There was a similar basis in the Labor Code. According to the established practice of applying this article, additional grounds for dismissal were included in the employment contract, for example, failure to comply with the decision of the general meeting of shareholders, causing losses to the enterprise.

If the termination of the employment contract is carried out on the grounds provided for by the employment contract, but not established by law, then the order makes reference to clause 13 of the commented article and the corresponding clause of the employment contract indicating why specifically the employee was dismissed.

Paragraph 14 of the commented article is of a reference nature, according to which other additional grounds for termination of an employment contract are allowed, provided for by the Labor Code and other federal laws, for example, in accordance with subparagraph. 3 p. 1 art. 4 of the Federal Law of 03/08/2011 N 35-FZ “Charter on discipline of employees of organizations operating especially radiation-hazardous and nuclear-hazardous production facilities and facilities in the field of atomic energy use”, an employee can be dismissed for a single violation of the legislation of the Russian Federation in the field of atomic energy use. Cases of such violations are provided for in Art. 61 of the Federal Law of November 21, 1995 N 170-FZ “On the Use of Atomic Energy” (as amended on November 7, 2011).

In accordance with Part 3 of the commented article, the employer may dismiss the employee if it is impossible to transfer the employee to another job with his written consent. Moreover, transfer is possible both to a vacant position and work corresponding to the employee’s qualifications, and to a vacant lower position or lower-paid job. In this case, the proposed work must correspond to the employee’s health status. As for the employment of an employee in another locality, the employer is obliged to offer the employee such work only if this is provided for by a collective agreement, agreement, or employment contract.

In accordance with the new edition of the commented article, dismissal of an employee on the grounds provided for in clauses 7 or 8 of the commented article is permitted no later than one year from the date of discovery of the misconduct by the employer, provided that the guilty actions giving grounds for loss of trust (clause 7) , or an immoral offense (clause 8) was committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his job duties. Thus, the legislator does not classify such guilty behavior of an employee as disciplinary sanctions, and, therefore, the rules of Art. 193 of the Labor Code cannot be applied. It should be borne in mind that the day the employer discovered the misconduct is the day when the employer learned or should have learned about the employee committing this misconduct.

Part 6 of the commented article establishes guarantees for termination of an employment contract at the initiative of the employer: dismissal of an employee at the initiative of the employer is not allowed during the period of his temporary incapacity for work (regardless of its duration), as well as during the period the employee is on leave - annual, additional, educational, without pay. wages. The exception is the liquidation of an organization or termination of activities by an individual entrepreneur.

It seems appropriate, in a commentary to this article, to consider the issues devoted to the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 on guarantees for employees upon termination of an employment contract at the initiative of the employer.

When considering a case on reinstatement of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer. It is important to keep in mind that:

a) the dismissal of an employee is not allowed (except in the case of liquidation of the organization or termination of activities by the employer - an individual) during the period of his temporary incapacity for work and while on vacation (Part 6 of the commented article); pregnant women (except in case of liquidation of an organization), as well as women with children under three years of age, single mothers raising a child under the age of 14 (a disabled child under 18 years of age), other persons raising these children without a mother , with the exception of dismissal on the grounds provided for in paragraphs 1, 5 – 8, 10 or 11 of Part 1 of Art. 81 or clause 2 of Art. 336 Labor Code (Article 261 Labor Code);

b) termination of an employment contract with employees under the age of 18 (except for the case of liquidation of an organization or termination of activities by an individual entrepreneur), in addition to compliance with the general procedure for dismissal, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors’ affairs and protection of their rights (Article 269 TK);

c) dismissal of employees who are members of the trade union on the grounds provided for in paragraphs 2, 3 or 5 of Part 1 of Art. 81 of the Labor Code, is carried out in compliance with the procedure for taking into account the motivated opinion of the elected body of the primary trade union organization in accordance with Art. 373 Labor Code (Part 2 of Article 82 Labor Code). At the same time, based on Part 2 of Art. 373 of the Labor Code, dismissal on the specified grounds can be made without taking into account the opinion of the elected body of the primary trade union organization, if it does not present such an opinion within seven working days from the date of receipt of the draft order and copies of documents from the employer, and also if the trade union body presents its opinion within the prescribed period, but does not motivate it, i.e. does not justify its position on the issue of dismissal of this employee;

d) representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for committing an offense for which, in accordance with the Labor Code, other federal laws dismissal from work is provided (part 3 of article 39 of the Labor Code);

e) representatives of workers and their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them (Part 2 of Article 405 of the Labor Code) (see Resolution of the Plenum of the Armed Forces of the Russian Federation dated 13/17/2004 N 2).

In cases where the participation of an elected (corresponding higher elected) trade union body when considering issues related to the termination of an employment contract at the initiative of the employer is mandatory, the employer must, in particular, provide evidence that:

a) upon dismissal of an employee under clause 2 of the commented article (reduction in the number or staff of employees), the notice periods established by part 1 of art. 82 of the Labor Code, the elected body of the primary trade union organization about the upcoming reduction in the number or staff of employees, as well as the mandatory written form of such notification;

b) upon termination of an employment contract with an employee due to his insufficient qualifications, confirmed by the results of certification, the certification commission during the certification, which served as the basis for the dismissal of the employee under clause 3 of the commented article, included a representative of the elected body of the relevant primary trade union organization (part 3 Article 82 of the Labor Code);

c) in the event of dismissal of an employee who is a member of a trade union, under paragraphs 2, 3 or 5 of the commented article, the draft order, as well as copies of documents that are the basis for making this decision, were sent to the relevant elected body of the primary trade union organization; the employer held additional consultations with the elected body of the primary trade union organization in cases where the elected body of the primary trade union organization expressed disagreement with the proposed dismissal of the employee; the one-month period for terminating the employment contract was observed, calculated from the day the employer received the reasoned opinion of the elected body of the primary trade union organization (in this period the following are not counted: temporary disability, being on vacation, other cases of absence of the employee when his place of work is retained (Article 373) TK)).

When considering cases of reinstatement at work, it should be borne in mind that when implementing the guarantees provided by the Labor Code to employees in the event of termination of an employment contract with them, the general legal principle of the inadmissibility of abuse of rights, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal a temporary disability during his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of the organization (not lower than the shop and equivalent to it), not released from the main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, accordingly, with the prior consent of a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (see paragraph 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 13/17/2004 No. 2).

We emphasize that the dismissal of an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation is not allowed. The main situations related to the dismissal of an employee at the initiative of the employer are discussed below.

Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by the employer - an individual)

Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by an employer - an individual entrepreneur) (clause 1 of part one of Article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is carried out in relation to all employees.

This, in principle, distinguishes the named basis from others provided for in Article 81 of the Labor Code of the Russian Federation. Let us clarify that in the general case, the liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without the transfer of powers (the rights and obligations of the enterprise) by way of succession to any other persons, undertaken in the manner prescribed by law , by decision of the body authorized to do so in accordance with the constituent documents, or by court decision.

The liquidation of an enterprise is considered completed, and the enterprise ceases to exist, from the moment the state registration authority makes a corresponding entry in the Unified State Register of Legal Entities.

It must be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for valid reasons (due to illness, vacation, etc.), and, on the other hand, , provides for the provision of appropriate guarantees and compensation to those dismissed.

The basis for initiating the procedure for dismissing employees on the basis provided for in paragraph 1 of part one of Article 81 of the Labor Code of the Russian Federation is the decision to liquidate the enterprise, adopted in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (a body of the enterprise with the appropriate powers) or by the court.

Employees must be warned by the employer about the upcoming liquidation in strict accordance with the requirements of the article of the Labor Code of the Russian Federation. Such a warning should:

be personal in nature;

be brought to the attention of each employee in writing and against signature - no later than 2 months before the expected date of dismissal.

At the same time, with the written consent of the employee, his dismissal before the expiration of the specified period is allowed with the simultaneous payment of additional compensation in the amount of the employee’s average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. However, employees should be aware that they have the right to contact their employer with relevant statements.

Obviously, the employer should inform employees about this in advance.

Thus, the employer has the right to dismiss earlier other employees who have stated in writing their consent to the no-notice dismissal procedure. However, it should be borne in mind that before the relevant order is issued, an employee who has previously agreed to a no-notice dismissal procedure has the right to withdraw his application by notifying the employer in writing.

Employees who have not submitted the appropriate written statements must be sent warnings by the employer about their upcoming dismissal due to the liquidation of the enterprise. If the employee refuses to sign (refuses to receive notification), a report is drawn up to this effect.

It is necessary to clarify that for certain categories of employees, the notice period for upcoming dismissal due to the liquidation of the enterprise may be reduced. For example, in accordance with Article 292 of the Labor Code of the Russian Federation, such a warning must be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and for seasonal workers, this period, in accordance with Article 296 of the Labor Code of the Russian Federation, must be at least seven days. The dismissal of an employee in connection with the liquidation of an enterprise, as in the previously considered cases, is formalized by an order (instruction) on the termination of the employment contract, the contents of which are announced to the dismissed person against signature. Based on the order (instruction), other necessary documents are drawn up.

Upon termination of employment contracts due to the liquidation of an enterprise, dismissed employees are paid severance pay in the amount of average monthly earnings in accordance with Article 178 of the Labor Code of the Russian Federation. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

At the same time, employees who have entered into an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract previously concluded with this employee. For seasonal workers, such benefits are paid in the amount of two weeks' average earnings.

To summarize the paragraph, we note that upon termination of the activities of a branch, representative office (another separate structural unit) of an enterprise located in another locality, the manager organizes the termination of employment contracts with employees of the relevant structural units according to the rules provided for cases of liquidation of the enterprise. Relevant orders are also issued regarding the dismissal of these employees.

Early termination of an employment contract due to a reduction in the number (staff) of employees of an enterprise (individual entrepreneur)

Let us next turn to the consideration of the procedure for early termination of an employment contract in connection with a reduction in the number (staff) of employees of an enterprise (individual entrepreneur) (clause 2 of part one of Article 81 of the Labor Code of the Russian Federation). In this case, the dismissal procedure is initiated by the employer in relation to employees who are “subject to” reduction.

Let us clarify that the dismissal of an employee due to downsizing implies a reduction in the number of units in the corresponding specialty (position, profession), for example, due to a decrease in the volume of work performed and the wage fund. When reducing numbers, first the vacant units in a given specialty are reduced, and then, if necessary, those occupied by “living” workers. In turn, the dismissal of an employee due to staff reduction implies the liquidation of the position he occupies. It is significant that the total number of employees in this case may not decrease, since new units may be introduced into the staffing table at the same time.

In general, the right to determine the number and staff is given to the employer. For this purpose, from time to time he may carry out certain organizational measures aimed at changing (including reducing) the number or staff of employees.

Depending on the reasons and goals, the reduction in the number or staff of an enterprise can be more or less significant. The decision to reduce the number or staff (to carry out relevant measures) comes into force from the moment the head of the enterprise issues an order to put into effect a new staffing table (with the obligatory indication of the date of its implementation).

However, before issuing the relevant order, the employer must organize work aimed at ensuring the legality of changes caused by a reduction in the number or staff of the enterprise.

It must be emphasized that the dismissal of an employee due to a reduction in numbers or staff is considered to be properly justified if the enterprise, for one reason or another, actually needs to reduce a particular number of units for the corresponding position (specialty, profession). At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the grounds in question, the employee must be offered in writing another job available to the employer, which the employee can perform taking into account his state of health and qualifications.

Let us clarify that the circumstances that make it, in principle, possible, from a legal point of view, to dismiss an employee due to a reduction in the number or staff of an enterprise include the following:

1. The employee does not have preferential rights to retain his job (position) in the event of a layoff. 2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the latter’s written consent to the transfer). 3. The employee’s refusal to give written consent to a transfer to another job offered to him by the employer (taking into account the state of health and qualifications of the employee). 4. Warning the employee about the upcoming dismissal in the manner prescribed by law. If the employee is a member of the trade union organization of the enterprise, then the decision to dismiss the employee on the basis provided for in paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer, taking into account the reasoned opinion of the relevant trade union body in accordance with Article 373 of the Labor Code of the Russian Federation (see below). Such an opinion can be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee.

When making a decision to dismiss an employee, the employer must, in addition, be guided by Article 179 of the Labor Code of the Russian Federation, which establishes preferential rights in relation to certain categories of employees to keep them at work in the event of a reduction in numbers or staff.

As follows from this article, when reducing the number or staff, the priority right to remain at work is given to “workers with higher labor productivity and qualifications.” If there are documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to reduction in number or staff, the following have a priority right to continue working:

family workers - if their families have two or more disabled family members who are fully supported by the employee or receive assistance from him, which is their permanent and main source of livelihood;

family workers in whose family there are no other workers with independent earnings;

employees who received a work injury (occupational disease) while working for this employer;

workers who were disabled during the Great Patriotic War (combat actions to defend the Fatherland);

employees who improve their qualifications in the area determined by the employer, without interruption from work;

employees who are spouses of military personnel (in government organizations, military units);

employees from among citizens previously discharged from military service, as well as members of their families at work, where they entered for the first time after discharge from military service;

workers - single mothers of military personnel undergoing military service;

workers from among persons who received or suffered radiation sickness and other diseases associated with radiation exposure (exposed to radiation exposure).

We also note that the collective agreement (agreement) may determine other categories of workers who, when reducing numbers or staff, have a preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The employer's further course of action involves:

1. Determination (taking into account the above) of workers to be transferred to vacant positions (with their consent and if the enterprise has vacancies corresponding to their health status and skill level).

2. Bringing to the attention of these employees lists of vacant positions (personally, in writing, against signature and taking into account the date of the expected dismissal of an employee in case of disagreement with the relocation).

3. Consideration of written statements from employees regarding consent (disagreement) with transfer to other positions.

4. Issuing orders (instructions) on the transfer of employees who have expressed their consent to other positions, as well as orders (instructions) on the dismissal of those employees who, for one reason or another, cannot be transferred to other positions that are not subject to reduction. In accordance with Article 178 of the Labor Code of the Russian Federation, in case of early termination of an employment contract due to a reduction in the number (staff) of the enterprise, those dismissed are paid severance pay in the amount of average monthly earnings. During the period of employment, they retain their average earnings, but not more than two months from the date of dismissal (including severance pay).

Early termination of an employment contract due to the employee’s incompatibility with the position held (work performed) due to insufficient qualifications confirmed by certification results

Let's move on to consider the procedure for early termination of an employment contract due to the employee's inadequacy for the position held (work performed) due to insufficient qualifications confirmed by certification results (clause 3 of part one of Article 81 of the Labor Code of the Russian Federation).

Having received at its disposal properly executed documents confirming the fact that the employee’s qualification level does not correspond to the work (labor function) assigned to him according to the concluded employment contract - in the general case, the minutes of the meeting of the certification commission - the employer must, as provided for in the new edition of part three of Article 81 of the Labor Code RF, offer the employee another job available to him, which the latter can perform taking into account his state of health and qualifications.

We emphasize that the documents used as justification must clearly indicate the discrepancy between the employee’s skill level and the work he performs. The absence of appropriate wording in the documents does not give the employer the right to dismiss the employee on the grounds in question.

In the absence of such work, as well as in the absence of the employee’s written consent to the transfer, the latter is subject to dismissal on the grounds provided for in paragraph 3 of part one of Article 81 of the Labor Code of the Russian Federation. The decision to dismiss employees who are members of a trade union organization on this basis must be made by the employer after considering the reasoned opinion of the relevant trade union body, as provided for in Article 373 of the Labor Code of the Russian Federation. For this purpose, the employer sends to the relevant trade union body a draft order (instruction) on the dismissal of the employee, as well as copies of the documents that are the basis for making this decision. For its part, the trade union body is obliged to consider this issue and communicate its reasoned opinion to the employer in writing within seven working days from the date of receipt of the draft order and copies of documents.

If the trade union body disagrees with the employer’s proposed decision, additional consultations may be held between them within three working days, the results of which must be documented in a protocol. The right to make the final decision after the expiration of the listed periods belongs to the employer.

The decision to dismiss on the grounds in question can be appealed by the employee (his authorized representative) to the relevant state labor inspectorate (GIT). The State Labor Inspectorate, within ten days from the date of receipt of the complaint (application), must consider the legality of the dismissal and, if it is declared illegal, sends the employer a binding order to reinstate the employee at work with payment for forced absence. Simultaneously with the consideration by the State Labor Inspectorate, the issue of the legality of dismissal can be appealed by the employee (his authorized representative) in court. In turn, the employer has the right to appeal the order of the State Labor Inspectorate to the court in compliance with the procedure established in this regard.

If the trade union body agrees with the employer’s decision, as well as in cases where such consent is not required, the dismissal order (instruction) is issued by the employer after receiving from the employee a written refusal to transfer or on the basis of documents confirming the absence of vacant positions at the enterprise , to which - taking into account the above - the employee could be transferred. Based on the order (instruction) of dismissal, other necessary documents are drawn up.

Early termination of an employment contract due to a change in the owner of the company’s property

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with a change in the owner of the enterprise’s property (clause 4 of part one of Article 81 of the Labor Code of the Russian Federation). It must be emphasized that dismissal on this basis (at the initiative of the employer) is allowed only in relation to employees from among the managers, deputy managers and chief accountant of the enterprise.

Previously, we mentioned Article 75 of the Labor Code of the Russian Federation, according to which, when the owner of an enterprise’s property changes, the new owner has the right, no later than three months from the date his ownership rights arise, to terminate the employment contract with the head of the enterprise, his deputies and the chief accountant. At the same time, a change in the owner of the enterprise’s property does not give the new owner the right to terminate employment contracts in relation to other categories of employees of the enterprise.

Thus, if the new owner considers it necessary to terminate the employment contracts previously concluded with the head of the enterprise, his deputies and the chief accountant, then he should do this in compliance with the following requirements:

1. An employee subject to dismissal on the grounds provided for in paragraph 4 of part one of Article 81 of the Labor Code of the Russian Federation must be warned of the upcoming early termination of the employment contract no later than two weeks before the expected date of dismissal.

2. A notice of dismissal must be made in writing, be personal in nature and brought to the attention of the employee against signature.

3. The warning must be sent to the employee, taking into account the maximum length of time allotted to the new owner of the enterprise to make a decision on whether or not to fire previously hired employees of the categories mentioned above.

4. The decision on early termination of the employment contract comes into force regardless of whether the employee subject to dismissal agrees with this decision of the new owner of the enterprise or not.

5. Upon dismissal, an employee - a former director of an enterprise (deputy director, chief accountant) is paid monetary compensation in the amount of at least three monthly average earnings (Article 181 of the Labor Code of the Russian Federation), and from the amount of compensation monetary amounts for days not worked by the dismissed person should not be withheld vacation (Article 137 of the Labor Code of the Russian Federation). The new owner may (but is not obligated) to offer employees subject to dismissal on the grounds in question another job available at the enterprise. Whether or not to agree with this proposal is up to the employee to decide, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction) of dismissal, other necessary documents are drawn up.

Let us note in conclusion that the employee, on his own initiative, can apply to the new owner of the property with a request for early termination of the employment contract. In this case, with the consent of the employer, the employment contract with the employee is also subject to early termination on the grounds provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation.

The same right, however, can be used by other employees of the enterprise, and not just those listed in paragraph 4 of part one of Article 81 of the Labor Code of the Russian Federation. However, we again emphasize that the latter situation is fundamentally different from that described within the framework of this paragraph, since the initiative for early termination of an employment contract on the basis provided for in paragraph 6 of part one of Article 77 of the Labor Code of the Russian Federation belongs to the employee, not the employer.

Early termination of an employment contract due to repeated failure by the employee to fulfill his job duties without good reason

Now let’s dwell on the early termination of an employment contract in connection with the employee’s repeated failure to fulfill labor duties without good reason (clause 5 of part one of Article 81 of the Labor Code of the Russian Federation), which - we especially emphasize this - is allowed only if the employee has a disciplinary sanction . In practice, the above means that an employee who is first noticed for failing to fulfill his job duties without good reason cannot be immediately dismissed by the employer, except in cases where such failure is associated with a gross violation of his job duties by the employee. It goes without saying that the relevant circumstances significant for ensuring the legality of the early termination of an employment contract on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation must be documented. The following documents may be considered as relevant documents:

a properly executed report on a previous case of failure by an employee to fulfill job duties without valid reasons (preferably with a note indicating that the employee has familiarized himself with the contents of this document);

a properly executed order (instruction) on disciplinary punishment of an employee with a note indicating that the employee is familiar with its contents;

documents confirming that work duties were not fulfilled by the employee in the absence of valid reasons;

other documents directly related to the circumstances under consideration (confirming that these circumstances occurred).

It is also necessary to recall that, in accordance with Article 192 of the Labor Code of the Russian Federation, the dismissal of an employee on the prescribed grounds, in turn, is also a disciplinary sanction. The general procedure for applying disciplinary sanctions is determined by Article 193 of the Labor Code of the Russian Federation.

When dismissing an employee - a member of a trade union organization of an enterprise - on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction), on the basis of which other necessary documents are drawn up.

Early termination of an employment contract due to a one-time gross violation of labor duties by an employee

It seems appropriate to devote the next paragraph of the reference book to consideration of the procedure for early termination of an employment contract in connection with a one-time gross violation of labor duties by an employee (clause 6 of part one of Article 81 of the Labor Code of the Russian Federation). Let us note that this paragraph provides several grounds for the dismissal of an employee guilty of committing a gross violation of labor duties, namely:

absenteeism – i.e. absence of an employee from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a" " point 6);

the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6);

disclosure by an employee of a secret protected by law (including state, commercial, official and other) that became known to him in connection with the performance of his job duties, including disclosure of personal data of another employee (subparagraph “c” of paragraph 6);

theft (including small) of someone else's property by an employee at the place of work, its waste or intentional destruction (damage), established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph "d " point 6);

violation by an employee of labor protection requirements established by the commission (authorized) for labor protection - if the violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of their occurrence (subparagraph "d" of paragraph 6).

The employer has the right to initiate a procedure for early termination of an employment contract in relation to a particular employee on the basis of documents proving the latter’s guilt in committing actions (the occurrence of circumstances) and, thus, making it possible to dismiss the culprit on the basis provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation . Such documents may include, for example, the following:

an act confirming the fact of the employee’s absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day;

a medical report on the results of an examination of an employee who appeared at work in a state of alcoholic (drug or other toxic) intoxication;

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of disclosure by an employee of a legally protected secret (including state, commercial, official and other) that became known to him in connection with the performance of his job duties;

a court verdict (a decision of a body authorized to apply administrative penalties), which has entered into legal force and confirms the fact that an employee at the place of work committed theft (including small) of someone else’s property, its waste or intentional destruction (damage);

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of violation by the employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.

All listed documents must be properly executed. It is also necessary to draw the attention of readers to the fact that, as in the case discussed in the previous paragraph, dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when implementing the procedure for early Upon termination of an employment contract, the employer is obliged to adhere to the procedure for applying disciplinary sanctions as defined in Article 193 of the Labor Code of the Russian Federation.

So, despite the fact that subparagraph “a” of paragraph 6 clearly defines what should be considered absenteeism, when making a final decision to dismiss an employee on the appropriate grounds, the employer should first pay attention to some other circumstances. For example, suspension of work due to a delay in payment of wages for more than 15 days cannot be qualified as absenteeism, provided that the employee informed the employer in writing in advance of his intention (see in this regard Article 142 of the Labor Code of the Russian Federation) . An employee has the right to refuse to perform work (labor functions) that is not stipulated by the employment contract concluded with him and, therefore, may be legally absent from the workplace (see in this regard, Article 60 of the Labor Code of the Russian Federation).

On the other hand, the employer has the right to consider as absenteeism the employee’s abandonment of work (and, accordingly, the workplace), undertaken by the latter without written warning to the employer of the intention to terminate the employment contract on his own initiative at least two weeks in advance.

The fact that an employee appears at work in a state of alcoholic (drug or other toxic) intoxication (subparagraph “b” of paragraph 6) can be confirmed not only by a medical report, but also by a properly executed document. The employer is obliged to remove this employee from performing work (Article 76 of the Labor Code of the Russian Federation), i.e. do not allow him to enter the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).

In the event that the employee has not been suspended from work, responsibility for the possible consequences of his performance of work duties while intoxicated falls on the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, a subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to continue to deny the employee access to the workplace to perform the work assigned to him in accordance with the employment contract (labor function). ).

Dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph “c” of paragraph 6) is permitted if the following circumstances occur:

1. Employment contract (or a corresponding agreement to it, or an additional agreement in relation to the employment contract - for example, provided for by the Instruction on the procedure for accessing officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation of October 28, 1995 No. 1050), contains a condition on the inadmissibility of disclosure by an employee of information constituting a secret protected by law.

2. The relevant information was indeed entrusted to the employee for the purpose of proper performance of the work assigned to him (labor function), while the employee was aware that the specified information constituted a secret protected by law.

3. The fact that the employee disclosed relevant information - for example, the personal data of another employee - is documented. The most indisputable from a legal point of view (among the grounds provided for in the subparagraphs of paragraph 6) seems to be the early termination of an employment contract with an employee found guilty of committing theft (including small) of someone else’s property at the place of work, its waste or intentional destruction (damage) established a court verdict or a decision of a judge, body or official authorized to apply administrative penalties that has entered into legal force (subparagraph “d” of paragraph 6). In this case, the employer is guided by documents issued in accordance with the established procedure by authorized bodies.

It must be emphasized that in this case, the Labor Code makes no distinction as to whether the stolen (damaged, destroyed or wasted) property belonged to the employer or to another person (for example, another employee of the enterprise). The main thing is that the corresponding action was committed by the offender at the place of work (which, of course, should be understood not as a workplace, but as an enterprise where the employee works).

It is also necessary to draw the readers' attention to the legal subtleties regarding the choice of grounds for dismissing an employee. A person guilty of committing illegal actions in relation to someone else's property at the place of work is subject to dismissal on the grounds provided for in subparagraph "d" of paragraph 6, only if the court verdict that has entered into legal force indicates that the employee has been sentenced to a punishment that does not exclude the possibility of continuing an employee of the work assigned to him in accordance with the employment contract. This circumstance must be taken into account when issuing a dismissal order and, in particular, when making appropriate entries in the work book.

And, finally, on the early termination of the employment contract on the basis provided for in subparagraph "d" of paragraph 6. Dismissal on the specified basis of an employee who has violated labor protection requirements, which had serious consequences or knowingly created a threat of such consequences, is permitted if:

1. The employee was familiarized with the labor protection requirements in the prescribed manner (in this regard, see Article 225 of the Labor Code of the Russian Federation). 2. The employer provided the employee with labor safety and conditions that meet the requirements of occupational safety and health. 3. The employee’s violation of these requirements actually entailed serious consequences or created a real threat to their occurrence. 4. The circumstances listed above are documented - a properly executed report on an industrial accident, an expert opinion issued by an authorized body, a resolution of a state labor protection inspector, etc. The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to the commission of guilty actions by an employee directly servicing monetary or commodity assets

In accordance with paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract early in connection with the commission of guilty actions by an employee directly servicing monetary or commodity assets, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. P. In general, dismissal of an employee on the specified grounds is permitted provided that:

the employee, in accordance with the employment contract concluded with him, was entrusted with the performance of work (labor function) involving the direct servicing of monetary (commodity) assets, and he actually performed the corresponding work, which is documented;

the fact that the employee committed guilty actions is appropriately recorded in the documents; The commission of guilty actions gives the employer grounds for loss of confidence in the employee.

We emphasize again that documents used as evidence of the employee’s guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving grounds for loss of confidence in relation to a particular employee (taking into account the above) is actually more extensive than this may be appear at first glance. Thus, law enforcement practice in recent years indicates that employers may take into account the following circumstances as such:

circumstances that in themselves indicate the illegal nature of the employee’s actions, namely: receiving payment for goods (services) sold without the appropriate documents, underfilling, measuring, weighing, shortchanging, violating the rules for the sale of alcoholic beverages and cigarettes, violating the rules for issuing narcotic drugs and etc.;

circumstances indicating the employee’s negligent attitude towards his job duties, which in turn gives the employee grounds for loss of trust, including: receiving and issuing sums of money without proper registration, storing keys to premises with material (monetary) valuables in the wrong place, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in poor condition, making their theft (loss) possible, etc.;

circumstances indicating that the employee uses the property entrusted to him for direct maintenance for personal purposes.

It should also be emphasized that, in accordance with the provision of the Labor Code under consideration, no distinction is made regarding whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. – the basis for early termination of an employment contract lies in the very fact of committing guilty actions by one or another employee and its corresponding (documentary) confirmation. It also does not matter whether an agreement on full financial liability was previously concluded with the guilty employee or not. Finally, it does not matter whether the work involving direct servicing of material (monetary) assets by the guilty employee was the main one or whether the latter performed it part-time.

On the other hand, the dismissal of certain categories of workers on the basis provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation cannot be implemented due to the fact that they cannot be entrusted (entrusted) with the performance of the relevant types of work.

To summarize, we note that in order to make a decision to dismiss a guilty employee due to loss of trust in him by the employer, as a rule, the documents listed above are sufficient, i.e. such a decision can be made in the absence of a court verdict that has entered into legal force, as provided for in subparagraph “d” of paragraph 6 (see earlier). However, in the event that the fact that an employee has committed guilty actions (theft, bribery, other mercenary offenses) is established in the manner prescribed by law, the culprit may be dismissed due to loss of trust and if the commission of such actions is not related to the performance of work on servicing material (monetary) values.

If guilty actions giving grounds for loss of confidence were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then dismissal on the grounds provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is allowed in for one year, calculated from the date when the employer became aware of the employee’s misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).

The latest changes to Article 81 of the Labor Code were made by Federal Law No. 231-FZ of December 3, 2012 "On amendments to certain legislative acts of the Russian Federation in connection with the adoption of the Federal Law "On control over the compliance of expenses of persons holding public positions and other persons their income" and, according to Federal Law No. 273-FZ "On Combating Corruption", this basis for dismissal can be applied to certain categories of civil servants. The norms of paragraph 7.1 of part one of Article 81 apply to state civil servants (Article 59.2 of Federal Law dated 27 July 2004 No. 79-FZ "On the State Civil Service of the Russian Federation"), employees of the Ministry of Internal Affairs (clause 4 of Article 82 of the Federal Law of November 30, 2011 No. 342-FZ "On service in the internal affairs bodies of the Russian Federation and in introducing amendments to certain legislative acts of the Russian Federation"), bodies of the Prosecutor's Office of the Russian Federation (Article 41.9 of the Federal Law of January 17, 1992 No. 2202-1 "On the Prosecutor's Office of the Russian Federation"), the Investigative Committee (Art. 30.2 of the Federal Law of December 28, 2010 No. 403-FZ “On the Investigative Committee of the Russian Federation”), customs authorities of the Russian Federation (Article 7.1, paragraph 10 of Article 48 of the Federal Law of July 21, 1997 No. 114-FZ "On service in the customs authorities of the Russian Federation"), employees of state companies and corporations (Resolution of the Government of the Russian Federation of August 21, 2012 No. 841), heads of federal government institutions (Resolution of the Government of the Russian Federation of March 13, 2013 No. 208).

Early termination of an employment contract due to the commission of an immoral offense by an employee performing educational functions

Early termination of an employment contract in connection with the commission of an immoral offense by an employee performing educational functions (clause 8 of part one of Article 81 of the Labor Code of the Russian Federation) is carried out if such an act is incompatible with the continuation of this work. It is noteworthy that this provision of the Labor Code does not specify under what circumstances - related or not related to the performance of the assigned work (labor function) - a particular employee committed an offense.

At the same time, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work (labor function) not related to the education of wards, cannot be dismissed on this basis. Accordingly, early termination of employment contracts with employees from the administration of establishments (institutions), as well as with technical (service) personnel in connection with their commission of immoral offenses is not allowed.

The fact that an employee has committed an immoral offense must be documented, for example, by materials from an internal investigation. Conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the employee committing an immoral offense with his continuation of his previous work.

This takes into account the circumstances of the commission of the immoral offense, the degree of its severity, as well as whether the employee has previously committed similar offenses. As a rule, when an employer makes a decision on dismissal, it also takes into account how well the employee has proven himself in the eyes of his colleagues and wards.

If an immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then dismissal on the grounds provided for in paragraph 8 of part one of Article 81 of the Labor Code of the Russian Federation is allowed within one year calculated from the date when the employer became aware of the employee’s misconduct.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to the employee making an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the enterprise

Let us next turn to the consideration of the procedure for early termination of an employment contract in connection with the adoption by the employee - the head of the enterprise (branch, representative office), his deputies and the chief accountant - of an unreasonable decision that entailed a violation of the safety of property, its unlawful use or other damage to the property of the enterprise (clause 9 part one of Article 81 of the Labor Code of the Russian Federation). As the name suggests, dismissal on this basis applies only to strictly defined categories of employees of the enterprise. To ensure the legality of dismissal on this basis, the following is essential:

1. The employee, in accordance with the employment contract, is vested with the authority to make decisions regarding the disposal of the property of the enterprise (establishing the procedure for disposing of this property) and actually made such decisions in the process of daily activities. 2. A decision made by an employee and considered by the employer as a circumstance making it possible to dismiss an employee on the grounds provided for in paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable. 3. The consequence of the employee making an unfounded decision was a violation of the safety of the enterprise’s property, its unlawful use or other damage caused to the enterprise’s property. 4. The circumstances listed above are documented. Let us add that there must be a clearly visible cause-and-effect relationship between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests). In other words, the employee must be responsible for the decision made by him personally.

As law enforcement practice shows, it is most difficult to establish such a connection in relation to decisions that are not recorded in any management documents, i.e. announced orally. In such cases, the circumstances of the decision-making and its implementation require especially careful study.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to a one-time gross violation by the employee - the head of the enterprise (branch, representative office) (his deputy) of his labor duties

Let's move on to consider the procedure for early termination of an employment contract in connection with a one-time gross violation by an employee - the head of an enterprise (branch, representative office) (his deputy) of his labor duties (clause 10 of part one of Article 81 of the Labor Code of the Russian Federation). As we can see, the application of this basis for dismissal is even more “selective” in nature compared to that discussed in the previous paragraph, since it does not apply to employees holding the position of chief accountant.

The content of the paragraph in question does not define what exactly should be considered a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list - for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice. Let us clarify that the number of gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies, and giving the employer grounds for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation, is currently It is customary to include, in particular, the following: violation of labor protection rules, violation of the rules for recording values, exceeding official authority or using the latter for personal (selfish) purposes, etc.

Dismissal on the grounds provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation will be absolutely legal if:

1. An employment contract concluded with an employee contains a condition on the latter’s obligation to perform certain actions in accordance with the powers granted (or, on the contrary, a condition ordering the employee to refrain from performing certain actions).

2. The employee’s commission of the relevant violation actually took place, and this fact is documented in the proper form. Dismissal on this basis will be legal even if the employment contract concluded with the employee specifically states that the commission of such and such actions (abstaining from performing them) is qualified as a gross violation and entails the dismissal of the violator for the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion of a corresponding condition in an employment contract should not contradict other provisions of the Labor Code, which provide for the possibility of early termination of an employment contract with an employee - the head of an enterprise (branch, representative office) (his deputy) on other grounds.

It is also necessary to draw the attention of readers to the fact that the ground we are considering gives the employer the right, on his own initiative, to early terminate an employment contract with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer himself decides whether to dismiss the violator or wait until another suitable case presents itself.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to the employee submitting false documents to the employer when concluding an employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission by the employee of false documents to the employer when concluding an employment contract (clause 11 of part one of Article 81 of the Labor Code of the Russian Federation). It should immediately be clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract are determined by Article 65 of the Labor Code of the Russian Federation, and, therefore, the employer’s attempt to accuse the employee of submitting false documents, which the employer had no right to insist on, from a legal point of view vision will look inadequate.

Thus, if the employee presented the employer with a forged (relatively speaking, someone else’s or counterfeit) work book or fake passport, and this fact is properly documented - for example, by an act of verification of a document that raises doubts - then the employer has the right to early terminate the employment contract with the specified employee on the basis provided for in paragraph 11 of part one of Article 81 of the Labor Code of the Russian Federation.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract on the grounds provided for in the employment contract with the employee - manager (members of the collegial executive body) of the enterprise

It seems appropriate to devote the next paragraph to consideration of the procedure for early termination of an employment contract on the grounds provided for in the employment contract with the employee - manager (members of the collegial executive body) of the enterprise (clause 13 of part one of Article 81 of the Labor Code of the Russian Federation). Thus, the peculiarity of this clause lies, firstly, in the fact that it can only be applied for the dismissal of employees from among the managers (members of the collegial executive body) of the enterprise and, secondly, only on the grounds provided for in employment contracts concluded with by these employees in addition to the general grounds for dismissal.

Please note that additional grounds for dismissal are established upon concluding an employment contract by agreement between the employee-manager (member of the collegial executive body) and the employer. In this case, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of employees.

The occurrence of circumstances that make it legal for the early termination of an employment contract with an employee - manager (member of the collegial executive body) of the enterprise must be documented. At the same time, the forms and methods of their documentary confirmation may be different (see earlier).

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract in other cases established by law

Let us briefly consider the procedure for early termination of an employment contract in other cases established by law (clause 14 of part one of Article 81 of the Labor Code of the Russian Federation). Previously, we have already touched upon certain issues related to the dismissal of enterprise employees on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

In this case, however, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on his own initiative, terminating his employment contract before the expiration of the latter. In other words, these are situations that allow early dismissal of an employee at the initiative of the employer and are directly provided for by law, with the exception of those discussed earlier.

Thus, Article 33 of the Federal Law of the Russian Federation of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” gives the employer the right to early termination of an employment contract with an employee - a state civil servant on grounds. The corresponding grounds may be provided for by other laws of the Russian Federation in relation to other categories of workers.

Information about additional grounds for dismissing an employee is recorded in the employment contract. The fact of the occurrence (identification) of circumstances allowing the dismissal of an employee for one of the additional grounds must be documented.

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), other necessary documents are drawn up.