How to correctly formalize the dismissal of an employee. How to fire an ineffective employee and not violate the labor code Why it is acceptable to fire an employee immediately

Dismissal of an employee is one of the current issues for the HR department, as is the hiring of employees, but this issue also has its own subtleties. The most important thing is the moment of “painless” dismissal of an employee, that is, without causing damage to both parties. But the dismissal of an employee does not always occur without consequences - sometimes an employee can sue the employer or move to a competitor and cause a lot of trouble for your company.

How to fire an employee legally and without consequences: legal aspect

There are a huge number of reasons for dismissal, and listing them all would take a lot of time. But if it is decided that an employee should be fired, you need to figure out first what ways he can be fired, based on a legal point of view:

The classic option is at your own request (clause 3 of Article 77 of the Labor Code);

Unsatisfactory results of certification (subparagraph “b” of paragraph 3 of Article 81 of the Labor Code);

Failure to comply with labor discipline (clause 5 of Article 81 of the Labor Code);

Single gross violation (subparagraph “a” of paragraph 6 of Article 81 of the Labor Code).

Now let's look at each point separately.

Dismissal at your own request

The simplest and at the same time beneficial way for both parties is to invite the employee to write a resignation letter in his own hand (according to paragraph 3 of Article 77 of the Labor Code). In this case, you should explain to the employee that there is no bright future for him in your company, he is hindering the development of the organization and he will not be able to advance up the career ladder. If these beliefs help, write good recommendations to the resigning employee. Particularly large and developed companies may even give such an employee a bonus if he agrees to part ways on good terms.

In this case, a good attitude towards the person being dismissed is of great importance. You should not provoke a conflict situation, because a subordinate may refuse to write a statement because of principle. You need to pretend that you really care about this person's future.

The situation changes completely when an employee completely refuses to write a letter of resignation of his own free will. In this case, you will have to try to get him to do it. And remember: in any case, you should avoid using force (no need to publicly insult or threaten the employee). After all, with your threats you can ensure that all other employees will side with the person being fired, which can worsen an already difficult situation.

In such cases, a more correct approach is required. You need to be patient, and at this time carefully collect detailed incriminating evidence on the employee: for example, complaints from clients and office employees, memos. Each remark to such an employee must be accompanied by a reprimand and a written statement of the remark. When you have collected enough documentation with comments, call the employee for a private conversation, citing the available information. Now, in an accessible form, you can inform him that you have a sufficient number of grounds for dismissing an employee under the article, which in the future may deprive him of employment in a good position. Most likely, after such a conversation, the employee will write a letter of resignation of his own free will.

There is another effective way to help an employee quickly navigate writing. It is necessary to make his stay in the workplace unbearable: for example, transfer his clients and part of his powers to another employee, not raise wages, and deprive him of bonuses.

Of course, all of the above methods also have disadvantages. So, a dismissed employee can turn to the tax office, the court, your competitors, or all of them at the same time, turning your existence into an impossible one.

Dismissal based on certification results

Most often, the dismissal of employees occurs due to their inability to cope with job responsibilities, that is, professional inconsistency. The complexity of this dismissal lies in the fact that such dismissal must be based on the results of certification (in accordance with paragraph “b”, paragraph 3 of Article 81 of the Labor Code of the Russian Federation). This event is carried out only in organizations that have a Regulation on Certification, with which employees are familiarized with signature.

Labor legislation does not indicate exactly how certification should be carried out and how its results are formalized. But you can also use the Regulation on Certification, which was approved on October 5, 1973 by the State Committee for Labor of the USSR and the State Committee for Science and Technology and is in force today. Referring to this provision, the manager is obliged to approve the certification schedule at his enterprise, or it is sufficient to issue a decree immediately before the certification. Of course, employees must also be familiarized with this documentation against signature.

The assessment of employee qualifications should be carried out by a special commission, which includes people who can truly assess the level of professional knowledge of each employee. The head of the company does not have to be a member of this commission, because an employee can contact him with a complaint about unsatisfactory certification results.

It is important to remember that the certification results must be issued in a separate order!

If the dismissed employee did not cope with the certification task, he should be given another chance and allowed to pass the certification again, so that no questions arise in the future. Having limited himself to repeated failure, you need to offer him another (less prestigious) place in your company. Of course, you should find a position that the dismissed employee will not agree to. The refusal must be documented, and after that you can safely dismiss the employee.

We must not forget about that either. that just one decision to fire an employee is not enough, it is important to have a general understanding of the work of this person. For example, if before passing the certification he coped well with his professional duties, had no written criticism from management or complaints from colleagues, then such a dismissal is easily challenged in court, and in most cases the judge takes the side of the plaintiff (that is, the former employee) .

In addition, a huge mistake made by the management of many companies is suddenly (without prior warning or legal registration) conducting certifications. This is a clear violation on the part of management, and if the employee wants to challenge his dismissal in court, the results of the certification are invalid in accordance with Article 9 of the Labor Code. It is necessary to try to comply with all formalities and act on the basis of the law.

Certification has one very significant drawback - large financial and time costs. Certification is carried out among all personnel, and members of the commission will also not agree to act on a voluntary basis.

Dismissal due to non-compliance with labor discipline

Dismissal of an employee for failure to comply with labor discipline is one of the most convenient reasons (according to clause 5 of Article 81 of the Labor Code). The most important thing in this case is the clause of the employment contract, which clearly indicates the start and end times of the working day (which must be indicated when concluding an agreement with the employee).

In addition, all lateness must be recorded on the timesheet. If an employee’s tardiness is chronic, it is necessary to create a commission and draw up a report of tardiness, and then require a written explanation from the employee (based on Article 193 of the Labor Code). If the employee refuses to write an explanatory note, a statement of refusal should be drawn up and signed by members of a special commission (it should include three disinterested witnesses - for example, a secretary, a laboratory assistant and a security guard), the immediate supervisor of the person being dismissed and an employee of the personnel department. Written comments can also be drawn up on the basis of the above-mentioned acts.

The trick is that a reprimand is not a serious enough measure, unlike a reprimand, and employees practically do not challenge them. At the same time, it is quite easy to find fault with someone being fired - he was a few minutes late and received a reprimand. When a convenient reason arises, it is necessary to issue a reprimand, after which you can safely dismiss such an employee.

It is very important to carefully prepare for dismissal - prepare memos and written comments (of which there should be a sufficient number) so that in the event of a legal dispute you have strong evidence of the employee’s irresponsible attitude towards his duties.

Dismissal due to a single gross violation

In order to consider this point, it is important to think carefully about it. What constitutes a gross violation? To do this, let us turn to the Labor Code of our country (more specifically, to paragraph “a”, paragraph 6 of Article 81).

In accordance with the Labor Code of the Russian Federation, the following factors can be considered a single gross violation:

Appearing at the workplace under the influence of alcohol or other intoxication;

Absenteeism for a certain part of the working day without warning;

Disclosure of commercial or state secrets;

Failure to comply with safety regulations, which may result in serious consequences;

Theft, embezzlement or destruction of property in the workplace.

The most common reasons for dismissal are showing up at work while intoxicated and absenteeism for more than four hours without explanation or good reason. It is important to remember: when starting the dismissal procedure, do not forget to make sure that the employee’s job description or employment contract actually contains a clause stating that the employee is notified where his workplace is located and is familiar with the instructions or contract against signature.

The appearance of an employee at the workplace in a state of intoxication is much more controversial than absenteeism. In order to prove that an employee was drunk at the workplace, not only witnesses and their written testimony will be required, but also a medical examination. A reprimand entered into a personal file. Only having all the documentation with evidence in hand can you proceed with dismissal. Otherwise, this dismissal is easily contested in court, and most often the dismissed employee wins.

As for absenteeism and corresponding dismissal under Article 81, in this case it is possible to dismiss even for a single absence of an employee from the workplace. If an employee is absent for more than 4 hours, he should be reprimanded and require an explanatory note. If there is no significant reason for the employee’s absence, the employee should be dismissed immediately. But such options are used mainly only in critical cases.

Dismissing an employee for absenteeism requires preparation - you should have several comments from management and at least a couple of memos. This is required for possible proceedings in court - so that judges are convinced of the employee’s lack of professionalism. The experience of lawyers shows that an employee who is fired at the first opportunity usually finds understanding from the judges, and someone who has repeated comments in his personal file is unlikely to arouse pity from representatives of the law.

As for the reason for absenteeism, it should not be valid. Unexcusable reasons are everything except sudden illnesses of the employee and his relatives, fire, accident, transport failure.

Dismissal of an employee for absenteeism must be carried out within one month from the moment the misconduct was discovered (in accordance with Article 193 of the Labor Code). Vacation and illness are not included in this period.

Dismissing an employee: solving the problem peacefully

Regardless of the chosen method of dismissal, it is best to give the employee the opportunity to leave peacefully of his own free will. In any case, even if you have a large number of reasons to dismiss him under the article, it is advisable to offer him “severance pay” and good recommendations. Your main task is to avoid litigation, which can bring you a lot of losses (in terms of time and finances). So, during the trial, the employee can be reinstated in his position so that he has the opportunity to earn money during the trial. In this case, you will once again find a person on your staff who is undermining discipline in the company and ruining your existence. In addition, he can use proprietary information and transfer it to competitors.

Don’t know how to properly formalize the dismissal of an employee? In this case, we offer you dismissal instructions, drawn up taking into account possible grounds for dismissal.

In the process of carrying out your business activities with the involvement of employees, you will sooner or later be faced with the procedure for dismissing one of your employees. Labor disputes are a fairly common occurrence when former employees try to convict their employer of violating labor laws and improper dismissal. To avoid such a problem, you should clearly understand the correct procedure for dismissing an employee.

One of the most important factors in following the correct procedure for dismissing an employee is the basis for termination of the employment relationship. They are divided into the following three groups:

• At the initiative of the employee himself;
• With the agreement of both parties;
• At the initiative of the employer. You can often find the wording for this basis - “under the article”.

Let's consider the dismissal procedure and the registration procedure for each of the groups of grounds.

Dismissal at the initiative of the employee

If an employee has expressed an independent desire to resign, and you do not see any obstacles to this, then your course of action is as follows.

Step 1.

You must receive a statement from the employee indicating their desire to resign. It must indicate the reasons for dismissal, usually expressed in the phrase “at one's own request” and the date of the desired dismissal.

Having received the application, you register it as an incoming document, review it and put down your resolution with the decision. Your decision may be to satisfy the employee’s desire to dismiss on the date indicated in the application - this is the first option. If for some reason you do not agree with the specified date, then you have the right to dismiss him with two weeks of work, which allows you to do the provisions of Article 80 of the Labor Code of the Russian Federation.

Step 2.

An order is issued to dismiss the employee, with which you must familiarize him with signature and he must indicate the date of familiarization. In the order, you must refer to the fact that the basis for dismissal is paragraph 3 of Article 77 of the Labor Code of the Russian Federation - the employee’s own desire.

Step 3.

The next stage is making an entry in the work book about the dismissal. For the reason under consideration, the entry will be as follows: dismissed at his own request on the basis of clause 3 of Art. 77 Labor Code of the Russian Federation. Next, enter the position of the person who made the entry in the work record, put his signature and a transcript of the signature. The labor record entered is confirmed by the seal of the organization or individual entrepreneur (if he has one).

Step 4.

You must give the employee his work permit. In this case, you absolutely need him to sign in the book of movement of work books and inserts to them that he received the work record.

IMPORTANT: If an employee deliberately avoids receiving a work permit, you need to send a written notice to him at his registration or actual residence address. In this case, in accordance with Article 62 of the Labor Code of the Russian Federation, you will relieve yourself of liability. And responsibility for the untimely issuance of a work permit can be expressed in the former employee going to court, with claims for not issuing a work permit to him. The court will consider such actions to create obstacles to getting a new job and will oblige you to pay lost earnings on the basis of Article 234 of the Labor Code of the Russian Federation.

Step 5.

On the day of dismissal of an employee, final payment must be made to him. He is entitled to receive the amounts of earnings accrued on the day of dismissal, compensation for unused vacation (if any). A full calculation of remuneration upon dismissal is drawn up in free form.

Step 6.

If the dismissed employee requests, you must provide him with other documents, or copies of them, directly related to the work. Most often, a request is received for the issuance of a certificate of form 2-NDFL, indicating the income received and tax withholdings made from them.

Dismissal by agreement of the parties

When dismissal by agreement of the parties, the procedure described in the previous section is actually repeated, with the exception of the first step. Let's look at these differences.

The dismissal of an employee by agreement of the parties occurs on the basis of paragraph 1 of Article 77 of the Labor Code of the Russian Federation. In this case, a bilateral agreement must be drawn up, which must indicate: the day of dismissal, the amount of compensation due and the procedure for its payment. The agreement is sealed with the signatures of the employer and the resigning employee.

The order indicates paragraph 1 of Article 77 - agreement of the parties - as the basis for dismissal. The following entry should be made in the work book: dismissed by agreement of the parties on the basis of clause 1 of Art. 77 Labor Code of the Russian Federation. Otherwise, the registration procedure for labor is repeated.

Dismissal at the initiative of the employer

If the basis for dismissal is the initiative of the employer, then the differences in registration also consist in the first step, as well as in making an entry about the grounds in the work book and order. Otherwise, the procedure for registering dismissal is the same as for voluntary dismissal. An employer may dismiss on his own initiative in the following cases:

• In case of staff reduction;
• Professional unsuitability;
• Truancy;
• Showing up to work while drunk.

Dismissal due to staff reduction is provided for in paragraph 2 of Article 180 of the Labor Code of the Russian Federation. You need to start by drawing up a new staffing table, excluding from it the position of the dismissed employee. Next, you need to issue an order to reduce staff. The next stage is a warning to the employee against his signature about the reduction of staff two months in advance. To do this, you need to give a notification in the form of a letter or an order, on which, in addition to the signature, the employee must also put down the date of familiarization, from which the calculation of the two-month period before dismissal will begin.

IMPORTANT: If the employee gives his written consent to the reduction without warning two months in advance, he can be fired immediately. But keep in mind that then you must pay him compensation in the amount of two months’ earnings.

If your organization has vacant staff positions, you will have to offer them to the employee subject to layoffs. Consider this point.

By professional unsuitability You can dismiss an employee on the basis of paragraph 3 of Article 81 of the Labor Code of the Russian Federation. The fact of his professional incompetence must be confirmed. To do this, you can conduct certification, warning him in writing about this procedure in advance.

Next, you create an certification commission by order, which will evaluate the professional level of the employee. It should include persons who are competent in determining the qualifications of an employee proposed for certification. If there are no such people in your state, then you can invite them from outside.

If the results of the certification show that the employee’s professional level does not correspond to the level established in the job description, then he can be fired. The grounds for the order and labor will be clause 3 of Art. 81 of the Labor Code of the Russian Federation, and the order also contains a link to the certification results.

Grounds for dismissal of an employee when truancy is paragraph 6 of Article 81 of the Labor Code of the Russian Federation. Absenteeism will be considered absence from work for more than 4 hours. The fact of absence must be reflected in the time sheet, and an absence report must be drawn up, which must be endorsed by two more employees. After returning to work, an employee who committed absenteeism must be required to request an explanatory note. If he refuses to write it, then this action must also be recorded by drawing up an act signed by two employees.

The grounds for dismissal of an employee who appeared in intoxicated, is paragraph 6 of Article 81 of the Labor Code of the Russian Federation. You can document his drunken state by calling a medical professional from the nearest medical facility. institutions. If this is not possible, then you need to draw up an act signed by two employees.

The grounds for the order and labor in case of absenteeism and appearing drunk will be clause 6 of Art. 81 Labor Code of the Russian Federation. Now you know what the correct procedure for registering dismissal is and you can avoid a number of labor disputes by following our recommendations.

Sometimes the relationship between employer and employee ends. That is, the employee is dismissed. This can happen either at the request of the employee or at the initiative of the employer. How to fire an employee and properly prepare all the documents?

What are the options for dismissal?

Let's start with the fact that the law provides for three options for dismissal:

• at the initiative of the employer
• at the initiative of the employee
• by agreement of the parties

It is clear that the first option involves unilateral dismissal for some violations on the part of the employee, for example, systematic absenteeism, as well as in case of staff reduction. As for dismissal at the initiative of the employee, there is a statement of resignation of his own free will, which the employer is obliged to satisfy. And dismissal by agreement of the parties can be used if the employee is not satisfied with the employer, but he does not want to leave of his own free will, but there are no formal reasons for dismissal.

Dismissal by agreement of the parties

Termination of an employment contract by agreement of the parties is a quick and concise procedure. It occurs on the basis of Article 78 of the Labor Code and can be carried out at any time. By agreement of the parties, it is possible to dismiss even those employees who are on vacation or sick leave. To begin the procedure, the employee must submit an application addressed to the manager, and if the initiator is the employer, then he sends the employee a proposal to terminate the contract. Then (if the parties have come to an agreement), an Agreement is drawn up, an order for dismissal is issued, and the entry in the work book indicates that the dismissal was made on the basis of clause 1 of Article 77 of the Labor Code of the Russian Federation.

Dismissal at the initiative of the employer

Various reasons may serve as grounds for dismissal of an employee at the initiative of the employer. For example, a desire to reduce company costs, staff reductions, employee inadequacy for the position held, or a change of owner. But the most common reasons for such dismissal are violations of discipline by the employee - absenteeism, showing up at work while drunk, being late and other violations. Now that it is clear why you can fire an employee, let’s figure out how to do it correctly.

Dismissal due to violation of labor discipline

Before punishing an employee for violating discipline, you should make sure that his employment contract clearly states the work schedule, place of work, and other points. This may seem strange to some, but there are companies that do not indicate a specific place of work, since the activities of the company and, accordingly, the work of the employees are related to the performance of duties at various sites that cannot be specified in advance when hiring a person. How to fire an employee for absenteeism if he works under such an agreement? No way, since the papers do not indicate a specific place of work. But if the working conditions there are clearly regulated, then if they are violated, the employer can bring the employee to disciplinary action. It is, of course, possible to fire an employee for a single violation of labor discipline. But only if it is serious enough.

For example, going to work while drunk (or under the influence of drugs), theft, embezzlement, damage (accidental or intentional) to someone else's property, disclosure of commercial or state secrets. It is also possible to be fired for absenteeism or absence from work for four hours. But if an employee is absent from work, before dismissing him, it is better to make sure that he does not have a certificate of incapacity for work. As for minor violations, such as being late, only disciplinary liability is possible. In this case, the employer’s procedure is as follows:

1. detection of violations (this is done within the established time frame in accordance with Article 193 of the Labor Code)
2. recording this violation
3. obtaining an explanation from the employee regarding the violation (the employee must write an explanatory note regarding the violation)
4. issuance of a manager’s order to impose disciplinary liability (announcement of a warning, reprimand, reprimand)
5. bringing the order to the attention of the employee

If there is a repeated violation of discipline, then, as a rule, a severe reprimand is issued (such punishments are also associated with deprivation of bonus payments), and the third time the employee faces dismissal.

Dismissal due to staff reduction

If we are talking about staff reductions, the law clearly regulates the procedure and rules for dismissing employees. For example, when one of the equivalent positions is reduced, a more qualified employee should be left at work (provided that their social status is equal). And if the qualifications of the workers are the same, but their social status is not, then management does not have the right to dismiss: single mothers, the only worker in the family, an employee who was injured or mutilated at work, disabled people, veterans of the Second World War, labor and combat, mothers, having children under 3 years of age, pregnant women, participants in the resolution of collective disputes, as well as those employees who undergo on-the-job training from the enterprise. For those employees who are laid off due to staff reduction, management is obliged to notify them two months in advance and offer (if possible) another job. If an employee agrees to move to a new place of work, this is formalized by an internal transfer, and if not, then he writes a statement asking to be dismissed due to staff reduction and he is fired with all due payments.

Dismissal upon liquidation of an enterprise

If the enterprise is liquidated, then all employees are subject to dismissal. How to dismiss an employee during liquidation? First, you need to warn all employees two months in writing in accordance with Article 180 (Part 2) of the Labor Code. This applies to both main workers and part-time workers. A notice of dismissal is issued to each employee, and a second copy, completed for signature, is filed with the order. After two months have expired, the enterprise administration issues an order to dismiss employees in the T-8 form, pays severance pay, compensation for unused vacation and wages for the time actually worked. The calculation is made on the last working day, and a corresponding entry is made in the work book. In addition, employees dismissed due to the liquidation of an enterprise have the right to payment of average monthly earnings for the period of employment, but not more than three months. This rule does not apply to part-time workers, seasonal workers, or those with whom a fixed-term employment contract was concluded (for a period of no more than two months).

Inconsistency with the position held

The issue of compliance or non-compliance with the position held is decided by the certification commission of the enterprise. If the result of the certification, which is carried out at enterprises to check the professional suitability and qualifications of employees, is unsatisfactory, then the employee may be offered to move to another position. If he refuses, the employer has the right to dismiss the employee as unsuitable for the position held, but no later than two months after the certification. In case of dismissal, both the order and the work book indicate the wording “due to inadequacy of the position held and refusal to transfer to another position.”

Who can't an employer fire?

An employer cannot fire an employee while on vacation, regardless of what kind of vacation he is on: annual paid leave, parental leave, educational leave or unpaid leave. The only exception is the liquidation of the institution. You also cannot fire an employee while on sick leave. This applies to both essential workers and those who work part-time, as well as home-based workers.

In addition, there are certain categories of employees who either cannot be fired at the employer’s initiative, or it is quite difficult to do so. These include:

Dismissal at the initiative of the employee

If an employee himself decides to leave the company, he has the right to submit a resignation letter of his own free will, regardless of what kind of employment contract (fixed-term or open-ended) he entered into when applying for a job. The application may indicate the reasons for dismissal (enrolling in an educational institution, moving to another area, caring for a child until he reaches 14 years of age), or it may not. In any case, to the question under what article to dismiss an employee, there is only one answer - under Art. 77 of the Labor Code of the Russian Federation.

In any organization, voluntary dismissal involves working for two weeks, but this period can be reduced by the employer. Upon expiration of the service period, a dismissal order is issued, which is delivered to the employee against signature, an entry is made in the work book and a full payment of wages is made. In addition, the employee is given all the necessary documents: salary certificates, copies of the order for transfer to another job (if any), the dismissal order, 2-NDFL certificate and other documents that the employee requests.

The voluntary dismissal procedure also implies the transfer of affairs to another employee, if necessary. For refusal to transfer cases in the prescribed manner, the employer can punish the employee, for example, by depriving him of a bonus, but cannot prevent his dismissal.

When resigning voluntarily, it is worth paying attention to the fact that the employee has the right to change his mind before the expiration of the dismissal period. In this case, he may withdraw his application and continue to perform his duties. But if another person has already been invited to take his place in writing and there is no possibility of refusing to conclude an employment contract, the dismissal remains in force.

How to fill it out correctly work book

The correct wording in the work book matters. So it’s a good idea to have a little cheat sheet on hand that will help you avoid making corrections in your document.

Important points

In conclusion, it is worth saying that dismissing employees is a complex procedure that can bring a lot of problems to the employer if it is carried out with violations. This means that, for example, dismissal due to inadequacy of the position held can be challenged in court due to the lack of certification provisions in the organization or the employee’s job description. An employee can also be reinstated by a court decision if the dismissal for systematic violation of labor discipline was not preceded by bringing the employee to disciplinary liability. Therefore, all documents must be carefully checked and comply with legal requirements.

Dismissal can be caused by completely different reasons. Most often, employees leave on their own initiative. Note that this situation is the most acceptable for the employer, because there is no risk that a subordinate may sue. But there are cases when an employee simply cannot cope with his functional responsibilities, or even does not go to work at all. What to do in this case? How to fire an employee without violating the Labor Code?

At your own request

Many managers believe that dismissal of an employee at his own request is the best and easiest option. The subordinate writes an application, works for 14 days, receives a full payment and picks up the work book. And everything is in the bag. But this is not entirely true; there may be many nuances here. For example, if a person can no longer fulfill his job duties due to certain circumstances (say, he entered a university, retired, moved to another city for permanent residence, was admitted to hospital treatment for an indefinite period, etc.), then he must be fired on the date he indicates in his application. That is, he should be released without detention. In all other cases, management may oblige the employee to work for the required 2 weeks until a replacement is found.

Quite often difficulties arise when you need to fire an employee during a probationary period. In this case, the period of its processing is reduced to 3 days. If the boss obliges him to go to work for 14 days, this will be considered a violation. It is very important to pay the employee on the last day of his stay in the service, at which time he is given a work book.

Dismissal at the request of management

In order for an employer to fire an employee on his own, he must have good reasons for doing so; desire alone, of course, will not be enough. In addition, if the employer does not fully take into account all the requirements of the Labor Code regarding dismissal, the employee can easily challenge such a decision in court. So, what is the correct way to fire an employee on the initiative of the director? Firstly, it is worth understanding that the Labor Code of the Russian Federation provides an exhaustive list of grounds on which an employment contract with a subordinate can be terminated. In particular, these are the following cases:

1. Complete liquidation of an enterprise or individual entrepreneur.

2. Reduction of staff or number of employees.

3. The employee’s inadequacy for the position held due to insufficient qualifications.

4. Change of founder (applies only to the director, his deputies, and chief accountant).

5. Repeated failure to perform functional duties without good reason, but provided that the employee already has a disciplinary sanction.

6. One-time gross violation of duties:

• absenteeism (absence from work for more than 4 hours in a row);
• appearance in a state of narcotic, toxic or alcoholic intoxication;
• disclosure of commercial, state, official or other secrets;
• theft at work, embezzlement or intentional damage to someone else's property (if there is a corresponding court decision);
• violation of labor protection requirements (if established by the labor protection commission);

7. Commitment of guilty actions by an employee who services commodity and monetary assets, which led to a loss of trust on the part of his superiors.

8. Committing an immoral act (for workers who perform educational functions).

9. Making a decision on what resulted in a violation of the safety of property or its unlawful use (this applies to the manager, his deputy, the chief accountant).

10. One-time gross violation of labor duties by the boss or his deputies.

11. Providing false documents when applying for a job.

12. In other cases provided for by law or employment contract.

Liquidation of an organization or staff reduction

If the company is planned to be liquidated or a reduction in the number of employees is coming, then it will not be possible to dismiss employees at their own request. We will have to act in accordance with the letter of the law.

Firstly, if we are talking about the liquidation procedure, then this fact must be documented in writing. If a reduction is carried out at the enterprise, the employer is obliged to prepare documents where the reasons for the reduction in the number of employees must be given. For example, if it is proven in court that the employer did not need to make redundancies, then the employee can easily be reinstated.

About the upcoming liquidation and reduction of staff must be informed 2 months in advance. Subordinates who are subject to layoffs must be offered other vacant positions, even if they are lower paid (if any are available). If the employee refuses the job offer, he can be fired. After the 2-month period, the dismissed employees are calculated, and they are also entitled to payment of severance pay and average earnings for 2 months (if they are not employed during this period).

You are not suitable for us

If a subordinate fails to cope with his responsibilities, you can also say goodbye to him. However, the fact that he is not fit for his position still needs to be proven. The employee's knowledge will have to be tested. For this purpose, an extraordinary certification is carried out. An enterprise order creates a certification commission of several people (the manager does not have to be included there). A special provision for employee certification should also be developed. It specifies the timing, evaluation criteria and procedure for conducting such an event.

Subordinates are introduced to this position upon signature. It is also necessary to approve the composition of the commission. It may include a director, deputies, representatives from the trade union, and the immediate supervisor of the employee whose knowledge will be tested.

How to fire an employee under an article for inadequacy of the position he occupies? To do this, it is necessary to obtain a conclusion from the commission that the person failed the certification. But that's not all. The employee will need to be given a second chance, and after a while, another check will be arranged. If this time the commission members recognize the employee as having failed the certification, then he can be fired. However, remember that a person can try to appeal such a decision in court.

Violation of labor discipline

How to fire an employee if he has violated labor discipline? In this case, you need to be very careful, since even the slightest mistake can lead to the employee being reinstated by a court decision. Firstly, it is worth remembering the following points:

1. You cannot be fired for one disciplinary violation. According to the Labor Code, employees who repeatedly violate routines and rules are subject to dismissal. Lawyers advise writing a dismissal order only in the event of a third violation of labor discipline. For the first two acts, the employee must have reprimands (entered in his personal file), the validity of which has not expired. If the employee commits a violation for the third time, then he does not need to be given any reprimands. You can safely fire him.
2. The act committed by the employee must be recorded somewhere as a violation. For example, in his job description or other local act.
3. Before dismissal, the boss must demand an explanation from the employee. If he refuses to write it, draw up an appropriate act about it.
4. Even if you fired a person from work under the article, you still need to pay him off: arrears of wages are repaid, for unused vacation, paid sick leave (if any).
5. On the last day of service, the dismissed person is given his work book (against signature).

If you fulfill all the requirements, do not miss deadlines, and receive an explanatory note from your subordinate, then you can be sure that it will be almost impossible for the violator of discipline to be reinstated at work.

How to fire an employee for absenteeism?

Well, what's so complicated about that? - many will ask. The person did not show up for work and did not notify his superiors about his absence, which means that he can be fired immediately for absenteeism. But it's not that simple. Even if the employee was absent from work for more than 4 hours in a row or the entire working day, you must obtain an explanation from him. In addition, the employee may have a valid reason. If the next day he brings a sick leave certificate or, for example, a certificate of blood donation, then he will not be able to say goodbye to the employee.

Sometimes it happens that a subordinate disappears altogether, does not show up at work for weeks, and does not answer phone calls. How to fire an employee in such a situation? You need to send him a letter at his home address asking him to come to work within a certain period of time (for example, 5 days) and write an explanatory note. At the same time, it is necessary for his immediate supervisor to draw up written reports about the person’s absence from the workplace. If during this time the employee does not appear, you can draw up a dismissal order. A sample of such a document might look like this:

Appearing drunk

If an employee comes to work drunk, it is, of course, prohibited to allow him to perform his job duties in such a state. However, it is very important to record the fact that the employee is intoxicated. The immediate supervisor must draw up a memorandum on him (addressed to the employer). It is important not only to indicate that you suspect that the subordinate is “under the influence.” Describe the signs of intoxication you notice: the smell of alcohol, incoherent speech, lack of coordination, etc.

If possible, create a special commission to investigate this case. It is also necessary to draw up a report documenting the employee’s condition.

It will be even better if you send your subordinate for a medical examination. For example, it can be carried out by a narcologist. A medical report, a commission report, and witness testimony are the most important documents that give every reason to say goodbye to an employee who likes to have a drink during working hours.

When the employee is already sober, demand from him a written explanation of his action. If he refuses to write such a paper, draw up an act about this too. After all these procedures, write a dismissal order. A sample wording is as follows: “Dismissed for appearing at work in a state of alcoholic (toxic, narcotic) intoxication, clause 6, part 1, article 81 of the Labor Code of the Russian Federation.” Date the order on the day it was issued, and not on the day the employee arrived “tipsy.”

Dismissal while on sick leave or vacation

It is generally prohibited to fire an employee who is on sick leave. Even if we are talking about layoffs, absenteeism, committing a disciplinary violation, etc. If a subordinate is sick, then no action can be taken against him (dismissal, transfer to another position). But even in this case there are exceptions.

If the company is liquidated, then all employees can be fired (even if they are on vacation or sick). Also, an employee who is on sick leave can pay himself. That is, dismissal at one’s own request, even if the employee has an open certificate of incapacity for work, is allowed.

It is worth noting that in this case the subordinate will not have to work out the two-week period. And the employer is obliged to pay him sick leave benefits. This rule applies if the certificate of incapacity for work is closed within 30 days after the person leaves work.

How to fire an employee on sick leave at the request of the boss? As already noted, this will not work. You definitely wait for him to go to work. And only then do you decide on dismissal, if there are grounds for it.

Other reasons for dismissal

The Labor Code provides for more than 10 grounds for dismissing an employee at the request of the boss. In particular, these include theft of property at the place of work or its damage. But it is very important to understand that only a court can find a person guilty of theft. The manager, of course, has the right to conduct an internal investigation and interview witnesses, but dismissal cannot be carried out without a court decision. Therefore, do not neglect this requirement.

It is also possible to terminate an employment contract in cases where an employee has violated labor safety rules. But, again, this fact must be proven. Only the labor protection commission can recognize the guilt of a subordinate.

Special grounds

A very interesting case is the termination of a contract due to loss of trust. How to fire an employee on this basis? Many employers forget that in this way, only those employees whose activities are directly related to the maintenance of commodity and monetary assets can be fired. For example, the chief accountant does not fall into this category. He should not receive money or other valuables from checks. For this reason, it is also impossible to say goodbye to the merchandiser, controller, labeler and other persons who are not financially responsible.

Why else can you fire an employee? Special grounds also include committing an immoral act. However, in this case, it is possible to terminate the employment contract only with the employee who performs educational functions. At the same time, the concept of “immoral act” is not explained by law. We can only note that this includes obscene statements or behavior that humiliates another person, appearing drunk in public places. In any case, the employer (director) himself must determine the severity of the teacher’s act and, on this basis, decide whether he is subject to dismissal or not.

Dismissal of unwanted employees

Many companies have employees who, although they perform their duties well and do not violate discipline, are, for example, very talkative or like to undermine their superiors, which can harm the company. Of course, we are not talking about a trade secret, nevertheless, many managers would like their subordinates to talk as little as possible about the successes or failures of the enterprise, its corporate policy, etc. How to fire an unwanted employee? Naturally, it will not be possible to say goodbye to an employee for his long tongue. We will have to look for legal grounds. Perhaps everything is not so smooth in his work, and he can be brought to disciplinary action, his suitability for his position can be doubted, and finally he can be fired under an article. In a word, here every leader must show ingenuity and intelligence. You should not rashly write an order and fire a subordinate, for example, for violating discipline, if he has not had a single reprimand before. It would also be a mistake to fire him due to a reduction in staff, if in fact no reduction is expected. The main thing is that from the standpoint of the law everything is perfect, and the employee has no grounds to sue.

Calculations when leaving work

We have found out in more detail why you can fire an employee. Finally, it is necessary to mention the calculation. On the last day of his work, a subordinate is entitled to payment of wages for the time worked, as well as other stipulated accruals. This rule applies to all employees. Even if an employee is fired as a result of his guilty actions, he is entitled to vacation pay. Money is not paid only if the employee goes on vacation followed by dismissal. The same applies to the certificate of incapacity for work. Payment of sick leave to a dismissed employee must be made within 30 days after payment. And lastly: on the day of dismissal, do not forget to give the employee a work book.

The 3 most common options for dismissing an employee: inadequacy for the position held, violation of labor discipline, being under the influence of alcohol or drugs.

Is it possible to fire an employee without his desire?

During a crisis, many enterprises try to reduce their workforce to reduce costs, but it is not always possible to part with them by voluntarily dismissal. If you are fired due to staff reduction, this will entail additional payments, which is disadvantageous for the employer.

Entrepreneurs who do not know how to fire an employee without his or her desire according to the law can familiarize themselves with the possible reasons for dismissal, respectively. from Art. 81 Labor Code of the Russian Federation:

• Insufficient qualifications, inadequacy for the position held, failure of subordinates to pass certification.
• Failure to fulfill labor duties established by the contract, repeated disciplinary violations.
• The appearance of an employee in the organization in a state of intoxication.
• Violation of labor protection requirements established by the commission.
• Theft of funds.
• Committing an act that is contrary to moral standards, making further work activity impossible.

To avoid litigation, in which the court will definitely side with the employee, it is important to know one detail: you cannot fire an employee while he is on sick leave, pregnant or on vacation.

Dismissal if the employee is not suitable for the position held by the employee

To fire an employee due to non-compliance, you need to take several steps:

• Issue an order for the employee to undergo certification, then give him a notification about it.
• Organize certification, including the most difficult tasks for him, which he will not be able to cope with.
• Recognize the employee's inadequacy for the position held.

For a manager, this method is not the most acceptable, because By law, he must offer an uncertified employee a vacant lower-level position, which he can accept while remaining employed by the company.

Dismissal for violations of labor discipline

If an employee has previously been subject to disciplinary action and is subject to a reprimand or reprimand, the employer has the right to dismiss him if he repeats the violation. What the procedure itself looks like:

• The fact of a repeated offense is documented by means of a memorandum, act, decision of the commission, or by indicating the actual time worked in comparison with the general norm of man-hours.
• An explanatory note is required from the offending subordinate. If it is absent, the employee will be able to challenge the dismissal in court, referring to Art. 193 of the Labor Code of the Russian Federation, according to which the employer is obliged to request it from the subordinate. If he does not provide it within two working days, a corresponding act is drawn up.
• Orders are issued for disciplinary action for systematic violations of labor discipline, as well as for dismissal for failure to fulfill labor obligations.
• A record of dismissal is made in the work book, indicating the reason - clause 5, part 1 of Art. 81 Labor Code of the Russian Federation.

On the employee’s last day of work, it is necessary to make all payments due to him: wages earned for the period worked, compensation for unused vacation, etc.

Dismissal of an employee due to intoxication

Such cases are extremely rare, and it is easier to get rid of an employee through certification or disciplinary violations, which everyone has. If there is any doubt about his sobriety, you need to do the following:

• Conduct a medical examination. It is advisable for an entrepreneur to attend.
• Draw up a report on whether a subordinate is in the workplace or on the territory of an enterprise in a state of alcohol (drug) intoxication.
• Issue an order for removal from work.
• Request a note of explanation from the employee.
• Draw up a report on the fact that the employee appeared in a drunken state.
• Draw up a dismissal order at the initiative of the employer and register it in the registration journal.
• Make a calculation note in form T-61, familiarize the former subordinate with the order against signature.
• Make an entry in the work book indicating paragraphs. b clause 5 art. 81 Labor Code of the Russian Federation.
• Issue a completed work book and make an entry in the Accounting Book.

As a rule, most employees found drunk at work agree to leave of their own free will, so it is quite possible to avoid the procedures described above by offering to disperse peacefully.

The simplest reasons for dismissal

It’s easiest for employers who hire employees for a certain period under a contract, because after the expiration of this document, it does not have to be renewed. In addition, the most common reason for dismissal among managers is failure to comply with labor discipline, which includes violations common to 90% of subordinates:

• Absenteeism and tardiness.
• Premature leaving work without an agreement with management.
• Ignoring the director's orders.
• Failure to fulfill direct job duties.

Despite the many options for the development of events, the simplest is still voluntary resignation, because only in this case the dismissed employee will not be able to win a claim in court unless he proves that the dismissal was under pressure from the employer. Even in this situation, the chance that the court will side with him is very low.