§1. Grounds for dismissal for disciplinary offense

The list of disciplinary sanctions that can be applied to employees is given in Art. 192 Labor Code Russian Federation(hereinafter referred to as “TK”). These are:

• comment,
• rebuke,
• dismissal for appropriate reasons.

Explanations on the application of this type of penalty are contained in paragraphs. 33-53 Resolutions of the Plenum Supreme Court Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the “Plenum”).

In case of violation of the dismissal procedure, the employee may be reinstated in his position with payment wages for the entire period of forced absence, and the employer faces the risk of administrative liability.

In this article, we will consider several examples of the application of dismissal on certain grounds of Article 81 of the Labor Code of the Russian Federation, supported by judicial practice.

Example #1

By this basis There is an example from the practice of the St. Petersburg City Court: Cassation ruling dated August 1, 2011 No. 33-11608/2011 declaring dismissal orders illegal.

From the case materials it follows that, by order general director LLC dated September 18, 2010, employee G., who had worked as the head of the duty administrator service since December 1, 2004, was reprimanded for failure to comply job responsibilities assigned to him employment contract and clause 3.8 of the job description, which was expressed in the fact that he did not ensure that his subordinate employee complied with the instructions of the company management to provide an explanation for the fact of penetration and theft in the business center.

By order of the same date, G. was reprimanded for failure to fulfill his job duties as provided for in the employment contract and clause 5.1.3 of the job description, which was expressed in the fact that he did not comply with the order of the General Director to immediately arrive at the business center to ensure uninterrupted operation of the service administrators on duty in an enhanced mode, did not provide his replacement with an employee at the post, allowed the post in the business center to become inoperable and did not ensure the readiness of his subordinates to strengthen the security regime for the organization’s facilities.

Further, on September 20, 2010, the general director of the LLC issued an order to dismiss G. for violation of official duties, taking into account previously imposed disciplinary sanctions on the basis of clause 5 of Art. 81 of the Labor Code (repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction). G. went to court to protect his rights to recognize the dismissal order and orders to impose disciplinary sanctions as illegal, reinstatement at work, recovery of wages for the period of forced absence and compensation for moral damage.

By the court's decision, employee G.'s demands were partially satisfied. The court decided to recognize the order to dismiss the plaintiff as illegal and reinstate him in his position, to recover wages for the period of forced absence and compensation for moral damage in his favor. The rest of the claim was denied. The defendant (employer) was also charged National tax to state income. Refused only in terms of recognition of the order to impose disciplinary action illegal.

Checking the legality of imposing a disciplinary sanction on the plaintiff, the court, following the instructions of the Plenum, studied all the terms of misconduct and issued orders, and found out that the employer brought G. to disciplinary liability on September 20, 2010 for the offense charged to him on August 7, 2010, when the deadline for bringing the plaintiff disciplinary liability has already expired.

The court came to the conclusion that the materials of the case do not provide sufficient grounds for concluding that the seriousness of the offenses charged to the plaintiff was significant, requiring the application of an extreme disciplinary measure to him in the form of dismissal. The defendant did not provide evidence to the court that these violations led to significant consequences for the work process. The result was a negative court decision for the employer and additional costs.

Conclusion: Since dismissal for failure to fulfill job duties will be a disciplinary sanction, it must be carried out according to the rules provided for the imposition of disciplinary sanctions. These rules are enshrined in Article 193 of the Labor Code. Firstly, it is necessary to request from the employee a written explanation of the offense committed, and if he refuses to give an explanation, draw up a report about this in the presence of two or three witnesses. Then you need to issue a dismissal order and familiarize the employee with it against a signature on the day of dismissal (order form No. T-8 approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1). If the employee refuses to sign the order, a report is drawn up. After issuing the order, you can make an entry about the dismissal in the employee’s work book and close his personal card, Form No. T-2.

• the employee did not have a disciplinary sanction or it was imposed illegally or its validity period has expired; the terms and procedure for dismissal on guilty grounds were violated (Article 193 of the Labor Code of the Russian Federation);
• the preliminary consent of the Federal Labor Inspectorate and the Commission on Minors' Affairs for the dismissal of a minor employee was not obtained (Article 269 of the Labor Code of the Russian Federation).

Example No. 2

The fact of theft (waste, destruction or damage) of property and the guilt of the employee must be established by a verdict or court order that has entered into legal force (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code, paragraph 44 of the Plenum Resolution). Since the Labor Code speaks specifically about the commission of theft (embezzlement, destruction or damage), then the verdict (decision) must be made precisely on this fact. Therefore, if such a document establishes only the fact of an attempt on these actions, there are no grounds for dismissal under this paragraph.

From the materials of the Resolution of the Presidium of the Samara Regional Court dated August 5, 2004: citizen Ts. filed a lawsuit against AvtoVAZ OJSC for reinstatement and recovery of wages for the period of forced absence. The plaintiff indicated that he worked for the defendant as a forklift driver and was found guilty of committing a crime under Part 3 of Art. 30, paragraph “a”, part 2, art. 158 of the Criminal Code of the Russian Federation, and he was sentenced to one year of correctional labor with the withholding of 10% of monthly earnings to the state.

Since correctional labor is served at the main place of work, Ts. considered his dismissal from work under subsection illegal. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation (committing theft of someone else’s property at the place of work) by order dated May 22, 2003. By the decision of the Avtozavodsky District Court of Tolyatti, Samara Region dated July 10, 2003, Ts.’s claims were satisfied: it was decided to reinstate the plaintiff as of May 23, 2003. at work as a workshop loader driver at AvtoVAZ OJSC and to recover wages in his favor for the period of forced absence. By the ruling of the judicial panel for civil cases of the Samara Regional Court dated September 17, 2003, the decision of the trial court was left unchanged.

Conclusion: Termination of the employment contract under paragraph “d”, paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is one of the disciplinary measures, therefore the employer must comply with the procedure and conditions for applying disciplinary sanctions, incl. the timing of their application. It should be borne in mind that upon dismissal on this basis month period for its application is calculated not from the day the offense was discovered, but from the day the court verdict entered into legal force or from the day the decision was made to impose administrative penalty.

Example No. 3

These may be employees:

• serving monetary or commodity values
• performing educational functions, that is, having a direct relationship with children.

Commitment of guilty actions that give grounds for loss of confidence in employees directly servicing monetary or commodity assets (for example, cashiers, sellers, collectors, storekeepers, etc.) on the part of employers (due to calculation; weighing; failure to preserve property - shortage, use entrusted property for personal purposes, receiving payment for services without receiving the relevant documents, etc.) may be considered as grounds for applying disciplinary sanctions if these actions were committed while the employee was performing his job duties.

Regarding the second point, an employee performing educational functions may be dismissed for committing an immoral offense at the place of work and in connection with the performance of job duties, subject to the procedure for applying disciplinary sanctions.

Immoral is an offense that is contrary to generally accepted morality (appearing in in public places drunk, use obscene words, participation in a fight - that is, behavior that degrades human dignity, “unseemly” actions that discredit an employee) committed in the performance of work duties. This definition is an estimate. It is assumed that not all immoral offenses can be grounds for dismissal, but only those that make it possible to judge that the employee cannot further carry out labor functions of an educational nature. Only the employer will judge this, since the legislator does not establish any criteria. However, it is worth considering that these acts committed in everyday life cannot be recognized as a disciplinary offense.

Conclusion: Loss of trust in an employee must be based on reliable facts confirming the employee’s guilt in causing material damage, creating a threat to cause it, or committing other illegal actions. These should be acts of inventory, verification of financial and economic activities, test purchases, etc.

Example No. 4

The Plenum in paragraph 48 explained that the unreasonableness of a decision is determined as follows: whether adverse consequences precisely as a result of the decision made and whether they could have been avoided if a different decision had been made. This indicates the establishment of a direct connection between the decision made and the material damage that occurred, which indicates the material composition of the offense and does not bring clarity to the resolution of this issue.

The Plenum does not take into account that the validity or otherwise of a decision may be subjective. These are evaluative concepts, and what meaning will be embedded in them depends on who will make the decisions or who will be interested in them. And this problem of “evaluative” concepts, unfortunately, can be seen in our legislation very, very often.

A mandatory condition for dismissal under clause 9 of Art. 81 of the Labor Code of the Russian Federation is also the presence of damage. The Labor Code of the Russian Federation reveals the concept of direct actual damage, which is the basis for bringing an employee to financial liability, which is understood as a real decrease in the employer’s available property, deterioration in the condition of the specified property (including the property of third parties located at the employer, if the employer is responsible for the safety this property), as well as the need for the employer to make expenses or excessive payments for the acquisition or restoration of property (Article 238 of the Labor Code of the Russian Federation).

If, as a result of an unjustified decision, the employer did not receive any income, then dismiss the employee under clause 9 of Art. 81 of the Labor Code of the Russian Federation is impossible.

Conclusion: In order to give an adequate assessment of the decision of a managerial employee, you can use the following criteria for the “unfoundedness” of the decision:

• the decision was made on the basis of incomplete, inaccurate, insufficient or incorrect data;
• When making a decision, not all data were properly assessed; a number of data were ignored (for example, increased risks(commercial, financial, etc.));
• data (including, for example, legal provisions) were misinterpreted or misinterpreted;
• the decision was made on an emotional level, although a number of objective factors had to be taken into account when making it;
• consultations should have been held before a decision was made and preparatory activities(checks (for example, the creditworthiness of an organization), analytical research, data collection, calculations (for example, commercial and financial risks), etc.); however, these activities were not carried out in violation of the established procedure.

Example No. 5

As an example, let us consider the Decision of the Moscow City Court dated September 26, 2011 in case No. 33-28491.

Citizen Ts. was appointed to the position of General Director of the State Unitary Enterprise of Moscow "Ekotekhproekt" on the basis of an employment contract for a period of 3 years.

By order of December 28, 2010, the plaintiff was dismissed on the basis of clause 10 of Art. 81 of the Labor Code of the Russian Federation for a single gross violation of labor duties by the head of the organization.

Ts. considers this dismissal illegal, since he did not commit a gross violation of labor duties; when dismissing the employer, the dismissal procedure was violated.

Having assessed the evidence in the case, the court of first instance came to the correct conclusion that the plaintiff’s dismissal was illegal under paragraph 10 of Art. 81 Labor Code of the Russian Federation.

At the same time, the court reasonably proceeded from the fact that dismissal on this basis cannot be carried out without indicating specific facts indicating the unlawful behavior of the manager and his guilt.

The date of dismissal was changed by the employer to March 28, 2011. However, the Labor Code of the Russian Federation does not provide the employer with the right to change the date of dismissal of an employee without his prior consent, after the employment relationship between the employer and the employee is terminated.

Thus, the procedure for dismissing the plaintiff by the employer was not followed in violation of the provisions of Art. 193 Labor Code of the Russian Federation.

Under such circumstances, the court decided to satisfy the plaintiff's demands in full.

Conclusion: Despite the fact that the above articles of the Labor Code provide a fairly large list of grounds on which a disciplinary sanction in the form of dismissal can be applied, this is a last resort. Employers should use it with caution and prepare all documents correctly. The practice of applying the Labor Code in Russia shows that the courts and the state labor inspectorate in such cases try to protect the rights of workers as much as possible.

Aida Ibragimova, head of the HR department of KSK group

These three points must be taken into account before dismissing an unscrupulous employee under the article. Learn about them through a case study.

In almost all organizations there are employees who do not cope well with their duties: they are often late, do not meet deadlines for completing tasks, and violate established rules. Managers do not know how to deal with such employees. When the boss’s verbal comments do not work, it is necessary to apply disciplinary sanctions: a reprimand, a reprimand, or, as a last resort, dismissal.

In Art. 81 of the Labor Code of the Russian Federation specifies the reasons why a contract may be terminated at the initiative of the employer. We are talking about the dismissal of an employee for repeated violation of his work duties (clause 5 of Article 81 of the Labor Code of the Russian Federation).

Next, we will consider in what cases an employee can be fired for systematic violation of labor duties, what conditions are important to take into account and how to competently formalize the imposition of a disciplinary sanction so that the court recognizes the dismissal as legal and does not allow the employee to be reinstated in his position.

Misconduct for which you can be dismissed under the article

Dismissal under this article is possible if the employee commits actions that are prohibited by the employment contract, job description, local regulations, employer’s order, regulations labor legislation and other regulatory legal acts containing provisions of labor law, or, conversely, if the employee does not perform the actions provided for by these documents.

Paragraph 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” refers to such violations:

Absence of an employee from work or workplace without good reason;
- Refusal by an employee, without good reason, to perform job duties in connection with a change in labor standards in accordance with the established procedure, since by virtue of the employment contract, the employee is obliged to perform the labor function specified in the employment contract, to comply with the internal labor regulations in force in the organization;
- Refusal or evasion without good reason from a medical examination of workers of certain professions, as well as the refusal of an employee to undergo medical examination work time special education and passing examinations on occupational health, safety and operating rules, if this is a mandatory condition for admission to work.

This list is given in the resolution of the Plenum of the RF Armed Forces and, of course, is not exhaustive. Such violations include any failure or improper performance by an employee of his or her job duties without good reason. When dismissing for repeated failure to fulfill job duties, the employer must have a clear position and irrefutable evidence of the employee’s guilt. The obligation to provide evidence of the legality and validity of applying a disciplinary sanction to an employee, as well as evidence of compliance with the procedure for its application, rests with the employer (Appeal ruling of the Smolensk Regional Court dated February 24, 2015 in case No. 33-631/2015).

Conditions required for dismissal

Before applying a disciplinary sanction in the form of dismissal under clause 5 of Art. 81 of the Labor Code of the Russian Federation, it is necessary to check whether the following conditions are met:

1. Requirements for the employee must be recorded in documents, and the employee must be familiarized with them against signature

It is possible to apply a disciplinary sanction to an employee only if the employee, against signature, has been familiarized with the documents establishing the requirements and prohibitions. As part of the activities of KSK groups, we provide consulting services, and often we receive complaints from clients that their employees do not fulfill their job duties. We always draw the attention of clients to the fact that it is necessary to bring all personnel documentation into compliance with labor legislation. If there is no document establishing the rules, then there is no way to prove a violation of these rules.

2. The employee has an outstanding disciplinary sanction

A disciplinary sanction or reprimand should not be lifted early and its validity period should not expire (one year from the date of issuance of the order to apply the penalty). A disciplinary sanction can be issued as a reprimand or a reprimand. For dismissal, one outstanding disciplinary sanction is enough; for the second, you can already be fired. If an employee has several disciplinary sanctions, this will strengthen the employer’s position, as it indicates that the employee was given a chance to improve. In this case, dismissal is a last resort, because previous disciplinary sanctions had no effect on the employee.

3. The severity of the offense and the circumstances of its commission

In accordance with paragraph 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” if a dispute arises, the employer will need to provide evidence indicating that:

– the employee committed a disciplinary offense;

– when imposing a penalty, the severity of this offense and the circumstances under which it was committed (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the previous behavior of the employee and his attitude to work were taken into account.

This means that the offense must be proportionate to the punishment. A disciplinary sanction in the form of dismissal cannot be applied for an employee being 15 minutes late if there were no previous complaints about the employee’s work. It is also prohibited to apply multiple disciplinary sanctions for the same act. For example, you cannot reprimand an employee for one delay and fire him for the same. The employer’s behavior will be unlawful if he “accumulates” the employee’s tardiness and one day reprimands and dismisses the employee.

4. Time limits for applying disciplinary action

A disciplinary sanction can be applied within one month from the date of discovery of the misconduct and six months from the date of its commission (based on the results of an inspection of financial and economic activities or an audit - no later than two years from the date of the commission of the disciplinary offense). The day of discovery of the offense is the day when it became known that the offense had been committed.

Please note that the monthly period for applying a disciplinary sanction does not include the time the employee is ill, on vacation, or the time required to comply with the procedure for taking into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Procedure for imposing disciplinary sanctions

Dismissal for repeated failure to fulfill job duties requires strict adherence to the procedure. Let's look at what documents need to be completed:

1. Memo on failure to fulfill labor duties

The employee’s misconduct must be recorded by the immediate supervisor in a memo addressed to the general director. The memorandum confirms the fact of violation by the employee of labor duties and is the basis for applying disciplinary action.

2. Act on committing a disciplinary offense

The commission of a disciplinary offense by an employee must be recorded in an act. The act is drawn up by three employees, including the immediate supervisor and a HR specialist. The employee must be familiarized with the act against signature.

3. Notice of provision of written explanations

Before applying a disciplinary sanction, an explanation must be requested from the employee. In order to confirm in the event of a dispute that explanations have been requested, such a notice must be drawn up in writing and handed to the employee against signature. In case of refusal to receive the notice, it must be read aloud to the employee and an act of refusal to receive the notice must be drawn up.

If, after two working days from the date the employee was asked for an explanation, he did not provide it or refused, then a report is drawn up. If there is an act and document that an explanation was requested from the employee and received by him, dismissal is possible without a written explanation from the employee.

4. Taking into account the opinion of the representative body

Dismissal of workers who are members of a trade union under clause 5 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected body of the primary trade union organization.

5. Registration of termination of the employment contract

Upon termination of an employment contract with an employee under clause 5 of Art. 81 of the Labor Code of the Russian Federation should be followed general rules dismissals. The following documents must be prepared: an order to terminate the employment contract, a settlement note, a work record book, and the employee’s personal card.

Case Study

A client contacted us to conduct a personnel audit. As part of providing audit services, we also advise clients on all issues of application of labor legislation. One of the company’s employees was a single mother and “actively” took advantage of it. When checking the employee's personal file, we discovered a large number of memos about her failure to fulfill her labor duties. Previously, the client tried to lay off the employee, but in response she filed a complaint with the labor inspectorate and went to court (although the employment contract was not terminated). The employer’s position was a losing one, since it is impossible to lay off a single mother by law, and the procedure itself was not formalized correctly.

We advised the client to issue an order to suspend the employee's dismissal procedure, and also notify that her position would be retained. Despite this, the issue of dismissal remained relevant for the client; the employee increasingly began to violate labor discipline, and in response to the employer’s comments, she used the argument that she was a single mother. The woman held the position of sales manager, systematically left workplace ahead of schedule, without permission, without warning, she went on vacation.

A personnel audit showed that the client’s company maintained personnel records with serious violations and many required documents were missing, as a result of which it was impossible to file a claim against the employee.

We have drawn up a plan for the client to restore personnel documents and instructions for behavior in relation to the problematic employee:

Draw up a detailed job description for a sales manager, which should describe all responsibilities and indicate to whom the manager reports;
- establish in the job description that the sales manager is obliged to carry out the instructions of the immediate supervisor and the general director;
- establish monthly sales plans that must be met by all sales managers.

Only upon approval and familiarization of the employee with all specified personnel documents disciplinary action may be taken. For example, for failure to fulfill the sales plan, orders of the manager, violation of labor discipline - a reprimand or reprimand, and in case of repeated violation - dismissal of the employee.

As a result, two disciplinary sanctions were drawn up against the employee; when she committed a third offense, a dismissal procedure was followed under clause 5 of Art. 81 Labor Code of the Russian Federation. The employee asked for the opportunity to resign at will, because I didn’t want such an entry in work book. The employer met her halfway, and the employment contract was terminated.

The grounds for dismissing an employee for committing a disciplinary offense (disciplinary dismissal) include the requirements of paragraphs 5-10 of Part 1 of Art. 81 Labor Code of the Russian Federation.

So, according to clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer for repeated failure by the employee to fulfill his work duties without good reason, if he has a disciplinary sanction.

As can be seen from the meaning of Art. 192 of the Labor Code of the Russian Federation, non-fulfillment or improper fulfillment by an employee through his fault of labor obligations assigned to him contract of duties is considered a disciplinary offense for which the employer has the right to apply disciplinary sanctions to him. According to the explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, failure by an employee to perform labor duties without good reason is failure to fulfill 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, employer orders, technical rules, etc.).

The employee's fault for the violation labor discipline has the form of intent or negligence, and a disciplinary offense is characterized by unlawful behavior (action, inaction) that is contrary to laws and other regulatory legal acts containing labor law norms.

Such violations, in particular, include:

absence of an employee from work or workplace without good reason;

refusal by an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization ( Article 56 of the Labor Code of the Russian Federation). This violation should be distinguished from refusal to continue work in connection with a change in the essential terms of the employment contract, which is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7, part 1, art. 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Art. 73 Labor Code of the Russian Federation;

refusal or avoidance without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

It should be noted that according to clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, dismissal of an employee is allowed only if he has a disciplinary sanction that remains in force, and has again committed a disciplinary offense. In paragraph 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 on this matter, there are the following explanations: the employer has the right to terminate the employment contract under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated failure to fulfill his work duties without good reason, it has not been lifted or extinguished.

So, according to Art. 194 of the Labor Code of the Russian Federation, a disciplinary sanction applied to an employee (announcement of a reprimand, a reprimand) is extinguished after a year, unless he is subjected to a new penalty, and the employer also has the right to remove the disciplinary sanction from the employee early. Thus, repeated failure to fulfill labor duties means repeated violation of labor discipline within a year and dismissal of the employee under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation applies to an employee who has a disciplinary sanction for Last year work if he again violated his labor duties. In this case, it is necessary to take into account the procedure for applying disciplinary sanctions provided for in Art. 193 Labor Code of the Russian Federation.

Disciplinary action is a penalty imposed by the administration on an employee for violating labor discipline, i.e. for culpable failure or improper performance by an employee of his labor duties. Public penalties are penalties for violation of labor discipline applied to an employee by the work collective, public organizations in accordance with the regulations and statutes governing their activities. Public penalties are not grounds for dismissal.

According to Art. 192 of the Labor Code of the Russian Federation, the following disciplinary sanctions can be applied to an employee: reprimand, reprimand, dismissal on appropriate grounds. Before the introduction of amendments and additions to the Labor Code of the Russian Federation by Federal Law N 90-FZ, this article contained only an indication that a disciplinary sanction (in addition to a remark and a reprimand) is dismissal on appropriate grounds. Currently, this article has been significantly supplemented; the legislator has enshrined in it specific grounds for termination of an employment contract related to disciplinary sanctions, namely: dismissal of an employee on the grounds provided for in clauses 5, 6, 9 or 10 of Part 1 of Art. 81 or clause 1 of Art. 336 of the Labor Code of the Russian Federation, as well as clauses 7 or 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation in cases where guilty actions giving grounds for loss of trust, or an immoral offense were committed by an employee at the place of work in connection with the performance of his job duties.

The above list is exhaustive and any other disciplinary action is unlawful. At the same time, the exception to what is specified in Art. 192 of the Labor Code of the Russian Federation, a list of disciplinary sanctions is possible only in cases provided for by federal laws, charters and regulations on discipline, in which other disciplinary sanctions may be established, which is specifically stipulated in the Labor Code of the Russian Federation.

So, in accordance with Art. 57 of the Federal Law “On the State Civil Service of the Russian Federation”, in addition to the general list of penalties applied to employees, provides for such as a warning about incomplete official compliance and exemption from a civil service position to be filled.

The disciplinary charter of the Customs Service of the Russian Federation, approved by Decree of the President of the Russian Federation of November 16, 1998 N 1396, provides that for violation of official discipline the following types of disciplinary sanctions may be imposed on employees: reprimand, reprimand, severe reprimand, warning of incomplete official compliance based on the results certifications, dismissal from customs authorities. At the same time, during the period of validity of the disciplinary sanction, the incentive measures provided for by the Disciplinary Charter are not applied, with the exception of the early removal of a previously imposed disciplinary sanction.

Thus, it is clear that there are two types of disciplinary liability: general, provided for by the Labor Code of the Russian Federation, and special, which is borne by employees in accordance with the requirements of federal laws, charters and regulations on discipline.

As part of the guarantees of respect for the rights of employees, including against illegal dismissals, it is the lawful imposition of a disciplinary sanction on an employee, for which it is necessary to comply with the procedure for its application established by Art. 193 Labor Code of the Russian Federation. Its purpose is to take into account all the circumstances of the commission of a disciplinary offense and make an informed decision on the issue of the employee’s disciplinary liability. So, according to Art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer must request a written explanation from the employee, and if after two working days it is not provided, then a corresponding act is drawn up. At the same time, the employee’s refusal to give an explanation is not an obstacle to applying disciplinary action.

When imposing a disciplinary sanction, it is necessary to take into account the severity of the offense committed; the circumstances under which it was committed; the employee’s compliance with his work duties and his behavior preceding the offense.

Disciplinary action is applied no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time required to take into account the opinion of the employee’s representative body. Thus, paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 determines that the day of discovery of the offense, from which the month period begins, is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission misconduct, regardless of whether it has the right to impose disciplinary sanctions.

In this case, a disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit or audit of financial and economic activities or an audit - later than two years from the date of its commission. The specified time limits do not include the time of criminal proceedings.

For each disciplinary offense, only one disciplinary sanction can be imposed. On the application of a disciplinary sanction, an order (instruction) of the employer is issued, which indicates the basis for the penalty and its type. The specified order is announced to the employee against signature within three working days from the date of its publication, and if the employee refuses to familiarize himself with it against signature, a corresponding act is drawn up.

One of the main guarantees of an employee subject to dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, is the right established by law to appeal a disciplinary sanction to the state labor inspectorate and bodies for considering individual labor disputes (Part 7 of Article 193 of the Labor Code of the Russian Federation).

It should be taken into account that upon dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, repeated violation by an employee of work duties without good reason must be confirmed by recorded facts of disciplinary sanctions. Thus, from paragraph 34 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, it follows that the employer must provide evidence indicating that the violation committed by the employee, which was the reason for dismissal, actually took place and could become the basis for termination employment contract and that the employer has complied with the provisions of Art. 193 of the Labor Code of the Russian Federation, the time limits for applying disciplinary sanctions.

Another guarantee provided to the employee is compliance with the procedure for taking into account the motivated opinion of the elected body of the primary trade union organization upon dismissal under clause 5 of part 1 of art. 81 of the Labor Code of the Russian Federation for workers who are members of a trade union (Part 2 of Article 82 of the Labor Code of the Russian Federation). The procedure for obtaining such an opinion is regulated by Art. 373 Labor Code of the Russian Federation.

Dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation will be lawful if the following circumstances simultaneously exist:

disciplinary offense for which the employee is dismissed;

he has had a disciplinary sanction for the last working year;

the rules for imposing penalties in accordance with the terms and procedures provided for by the Labor Code of the Russian Federation have been observed;

When dismissing the employer, he took into account the severity of the offense committed, the circumstances under which it was committed, as well as the employee’s previous behavior and his attitude towards work.

If, when considering a labor dispute by an authorized body, one of the above circumstances is not proven, this may serve as the basis for reinstating the employee at work, paying him average earnings for the period of forced absence and compensation for moral damage, which in practice occurs quite often. In this regard, as an example, we will cite the decision of the Butyrsky District Court of Moscow.

The head of the Southern Sales Department of the State Unitary Enterprise "Sportloto" D., who was dismissed on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation. According to the case materials, the administration planned an inspection of the Sportloto kiosk near the Vykhino metro station. The audit should have been carried out by the company's auditor. However, the auditor was unable to carry out an inspection, about which she wrote a report addressed to the director of the State Unitary Enterprise "Sportloto", indicating that the distributor who traded in the tent refused to allow the auditor to perform the inspection and provide documents, citing the absence of a representative of the Southern Department of the State Unitary Enterprise during the inspection." Sportloto". In connection with this order of the administration of the State Unitary Enterprise "Sportloto" dated June 10, 2003 No. 24 D. was reprimanded for lack of control over the activities of distributors.

Subsequently, during inspections of “Sportloto” kiosks belonging to the Southern Sales Department, two more similar cases occurred when the auditor of the enterprise was prevented from carrying out inspections by the distributors. At the same time, for one of them D. was reprimanded, for the other the plaintiff was fired for repeated failure to fulfill her job duties without good reason on the basis of clause 5 of Art. 81 of the Labor Code of the Russian Federation.

However, the court found this dismissal illegal, violating labor rights plaintiffs, since the defendant did not prove that D.’s official duties included monitoring the actions of distributors when conducting checks at kiosks. None of the regulations presented by the defendant established any responsibilities of the head of the sales department when conducting these inspections. The order of the director of the enterprise, which placed personal responsibility on the heads of sales departments for access of inspectors to the Sportloto kiosks, was issued after the facts that served as the basis for bringing D. to disciplinary liability.

Having assessed the evidence in the case, the court came to the conclusion that in D.’s actions there were no facts of the plaintiff’s failure to fulfill her labor duties during audits. According to this civil case the court not only reinstated D. at work, but also canceled illegal orders about imposing disciplinary sanctions on her.

Clause 6, Part 1, Art. 81 of the Labor Code of the Russian Federation provides for five gross one-time violations by an employee of his work duties, each of which is an independent basis for dismissal even if the employee does not have disciplinary sanctions. Federal Law of June 30, 2006 N 90-FZ in clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, some adjustments have been made: the concept of absenteeism is defined in more detail; in sub. "b" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation clarifies how the concept of an employee’s appearance at work should be assessed geographically (where exactly at work); the subclause regarding the disclosure of secrets protected by law (state, commercial, official and other) also includes the disclosure of the employee’s personal data as the employee’s guilty actions; in sub. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the legislator clarified that a violation of labor protection requirements committed by an employee, which could serve as a basis for dismissal through his fault, must be established by the labor protection commission or the labor protection commissioner.

Clause 6, Part 1, Art. 81 of the Labor Code of the Russian Federation, as well as the previous clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, provides for the possibility of terminating an employment contract with an employee for violation (non-fulfillment) of labor duties. The difference is that according to clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, dismissal is allowed only when repeated violation labor discipline, and according to clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, an employee can be dismissed for a one-time violation of labor duties, if it is gross.

According to the explanations given in paragraph 38 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 of a person dismissed under paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the employee committed one of the gross violations of labor duties specified in this paragraph. It should be borne in mind that the list of gross violations of labor duties, which provides grounds for termination of an employment contract with an employee under clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is exhaustive and is not subject to broad interpretation.

So, according to clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, gross violations of labor duties for which the employer has the right to dismiss an employee include:

truancy (subparagraph "a");

the employee’s appearance at work in a state of alcohol, drug or other toxic intoxication (subparagraph “b”);

disclosure of secrets protected by law (subparagraph “c”);

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 (subparagraph "g" );

violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of such consequences (subparagraph "e").

Since the basis for dismissal under clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is a disciplinary offense, i.e. unlawful, culpable failure by an employee to fulfill his labor duties, then dismissal is a disciplinary measure. As already noted, for the legal application of such a penalty, it is important to comply with the established procedure for applying disciplinary sanctions in accordance with Art. 193 Labor Code of the Russian Federation. It should be noted that applying a disciplinary sanction to an employee in the form of dismissal is not an obligation, but a right of the employer, and therefore the latter, after clarifying all the circumstances of the disciplinary offense, can limit itself to an oral remark, conversation, etc.

For this reason for dismissal, the lack of respect for the reasons for the employee’s absence from the workplace for a certain time and the guilt of the employee are of fundamental importance, since in order for the absence from the workplace to qualify as absenteeism, it must be due to unjustified reasons. Before applying disciplinary sanctions, the employer is obliged to find out the reason for the employee’s absence from the workplace, for which it is necessary to obtain an explanation from him in writing (Article 193 of the Labor Code of the Russian Federation). If there is a good reason, the employee cannot be dismissed under subsection. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation.

An approximate list of circumstances and reasons for an employee’s absence from the workplace, giving the employer grounds for applying disciplinary sanctions, is defined in paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, according to which dismissal under clause. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, in particular, can be made for:

absence from work without good reason, i.e. absence from work during the entire working day (shift);

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

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

abandonment of 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 warning period for early termination of the employment contract (Article 79, Part 1 of Article 80, Article 280 of the Labor Code of the Russian Federation);

unauthorized use of days off, as well as unauthorized departure on vacation (main, additional).

Due to the fact that legislation cannot exhaustively provide for all life circumstances that could justify an employee’s absence, the question arises: what reasons for an employee’s absence from the workplace can be considered valid? In this case, we share the opinion of E.A. Ershova, who believes that the concept of “good reasons” is evaluative, the list of them is open, they can be considered as subjective and objective circumstances that inevitably prevent an employee from appearing at the workplace. It seems that the right to establish the presence or absence of a valid reason for an employee’s absence from the workplace belongs to the employer and in each specific case he needs to assess whether the employee’s explanation for his absence is motivated and whether the reasons he gives can be considered valid.

To qualify an employee’s actions as absenteeism, it is necessary to take into account all legally significant circumstances related to the reason for the employee’s absence from the workplace:

absence of an employee from the workplace during the entire working day (shift) or for more than four hours in a row during the working day (shift);

lack of respect for the reasons for such absence;

Failure to prove one or more circumstances is the basis for reinstatement of the employee at work, payment of wages for the period of forced absence and compensation for moral damage.

As the analysis shows judicial practice, employers often violate the rights of employees. When considering cases on the legality of dismissal for absenteeism, a legally significant circumstance is the establishment of the employee’s obligation to be at the workplace in connection with the performance of job duties during the period of alleged absenteeism. It is necessary to cite as an example the decision of the Butyrsky District Court of Moscow.

K. was dismissed by the administration of the Federal State Unitary Enterprise "Research Institute of Automation" for absenteeism on the basis of clause. "a" clause 6 of Art. 81 Labor Code of the Russian Federation. The plaintiff worked at the enterprise since 1972 as a 5th category boiler room operator. From July 1, 2001 to July 7, 2001, K. did not go to work during three work shifts, which she was supposed to work in accordance with the duty schedule of the boiler room operators. After returning to work, the plaintiff explained that the reason for her absence was a fire in the garden plot and the need to constantly remain on its territory until the consequences were eliminated. In addition, due to the fact that, in accordance with the vacation schedule established at the enterprise, K.’s next vacation began in the first ten days of July, the plaintiff believed that she had the right to use the days from July 1 to July 5 as vacation credit.

The administration of the enterprise considered K.'s absence from work for three shifts as absenteeism, and therefore a disciplinary sanction was imposed on the plaintiff in the form of dismissal.

The defendant explained at the court hearing that, in the opinion of the administration, K. did not properly formalize her departure on vacation, therefore, on her part there was an unauthorized departure on vacation, which is truancy. Taking into account the severity of the offense committed by K., as well as the fact that the boiler room is a particularly sensitive facility, the administration of the enterprise decided to dismiss K.

Assessing the evidence in the case in its totality, the court found the plaintiff’s dismissal illegal and unfounded, since the administration, when imposing the penalty, did not take into account all legally significant circumstances related to the reason for K.’s absence from work and the employee’s previous attitude to the performance of his job duties.

With regard to K.’s absence from work on July 1 and 5, the court took into account that the plaintiff’s leave was not properly documented, i.e. the administration did not issue an order to grant her leave. However, the court indicated that in accordance with the vacation schedule approved by the administration of the enterprise, K.’s vacation should have been granted from the first ten days of July. The court did not accept the defendant’s argument about the plaintiff’s unauthorized departure on vacation, since the plaintiff, in accordance with the schedule, had the right to be granted vacation on the specified days, and the responsibility for properly registering the vacation and notifying the time of its start is assigned by law to the administration of the enterprise. During the trial, the defendant did not provide evidence to the court that K.’s next vacation should have started on any other date; on the contrary, the plaintiff’s work schedule presented to the court was drawn up without taking into account the employees’ vacation schedule.

The defendant also did not present any local legal act establishing the procedure for providing next holidays employees of the Federal State Unitary Enterprise "Research Institute of Automation" and registration of the employee going on vacation.

The court also took into account the plaintiff’s previous behavior in the performance of her work duties, her attitude towards work, expressed, in particular, in the fact that the plaintiff had never previously been subject to disciplinary liability in 25 years of work at the enterprise.

Under these circumstances, the court came to the conclusion that K.’s absence from work on the specified days cannot be recognized as absenteeism and is not grounds for dismissal of the plaintiff on the basis of subsection. "a" clause 6 of Art. 81 Labor Code of the Russian Federation. By a court decision, the plaintiff was reinstated at work; in her favor, the court recovered the average earnings for the period of forced absence and compensation for moral damage caused by illegal dismissal.

According to sub. "b" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer if an employee appears at work (at his workplace or on the territory of the employing organization 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. Federal Law No. 90-FZ of June 30, 2006 clarified what exactly the concept of “at work territorially” includes.

In accordance with Art. 76 of the Labor Code of the Russian Federation, the employer is obliged to suspend from work (not allow to work) an employee who appears at work in a state of alcohol, narcotic or other toxic intoxication. Otherwise, he is responsible for the consequences that may arise in connection with this (accident, damage to equipment). However, this does not deprive the employer of the right to terminate the employment contract with the specified employee under subclause. "b" clause 6, part 1, art. 81 Labor Code of the Russian Federation.

For dismissal on the basis of this clause, the fact that the employee appears in a state of intoxication at work is sufficient. In this case, it does not matter when the employee was at work - at the beginning or at the end of the working day, and whether he was suspended from work for appearing in this form or not. It is also necessary to take into account that dismissal on this basis can also follow when the employee was in a state of intoxication during working hours not at his workplace, but on the territory of the employing organization or facility where, on behalf of the employer, he must perform a labor function.

Appearing at work while intoxicated must be proven by the employer. Thus, according to paragraph 42 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, the state of alcohol, drug or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court. Other evidence may include testimony, a report drawn up by representatives of the employer and other employees.

Considering that termination of the employment contract under sub. "b" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is one of the disciplinary measures (Article 192 of the Labor Code of the Russian Federation), termination of an employment contract on this basis is possible in compliance with the procedure, as well as the deadlines for applying disciplinary sanctions provided for in Art. 193 Labor Code of the Russian Federation.

In addition, when applying such a type of penalty as dismissal to an employee, the employer must take into account the severity of the disciplinary offense, the harm caused by it, the circumstances under which it was committed, and information about the person who committed the disciplinary offense.

The circumstances to be proven when establishing a disciplinary offense in the form of an employee appearing at work in a state of intoxication are:

showing up at work during working hours in a state of alcohol, narcotic, toxic or other intoxication;

the severity of the disciplinary offense corresponds to at least a disciplinary sanction in the form of dismissal;

compliance with the deadlines and procedures for bringing to disciplinary liability;

no obstacles to dismissal - employee illness or being on vacation.

Failure to prove any of these legally significant circumstances is the basis for reinstatement, compensation for losses and compensation for moral damage.

Protection of secrecy means that legal liability is established for the disclosure of information of a special nature. An employment contract with a person admitted to state secrets is concluded only after it has been verified by the competent authorities. Citizens admitted to state secrets undertake obligations to the state not to disseminate information entrusted to them that constitutes a state secret.

According to Part 4 of Art. 29 of the Constitution of the Russian Federation, the list of information constituting state secrets is determined by federal law. The protection of state secrets is regulated by the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets” (as amended on August 22, 2004).

In accordance with Art. 2 of the Law of the Russian Federation "On State Secrets" state secrets are information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational investigative activities, the dissemination of which could harm the security of Russia. Article 5 of this Law, as well as Decree of the President of the Russian Federation of November 30, 1995 N 1203 (as amended by Decree of the President of the Russian Federation of February 11, 2006 N 90) “On approval of the list of information classified as state secrets”, defines a list of information which may constitute a state secret.

The provisions on official and commercial secrets are enshrined in Art. 139 Civil Code RF, according to which information constitutes an official or commercial secret in the case when this information has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis, and the owner of such information takes measures to protect its confidentiality. According to Art. 3 of the Federal Law of July 29, 2004 N 98-FZ "On Trade Secrets" (as amended on February 2, 2006 N 19-FZ), a trade secret is the confidentiality of information that allows its owner, under existing or possible circumstances, to increase expenses, avoid unjustified expenses, maintain a position in the market for goods, works, services or obtain other commercial benefits. In contrast to the Law of the Russian Federation "On State Secrets", Art. 5 of the Federal Law “On Trade Secrets” stipulates only information that cannot constitute a trade secret. Thus, trade secrets include the content of contracts and business plans of an enterprise, trade and financial secrets, forecast estimates of sales markets and segments of consumer markets, nomenclature and pricing strategies of the enterprise, the enterprise management organization system as a whole and its individual functional subsystems, as well as know-how. know-how on recipes and technologies, devices and design solutions. Official secrets usually include information about the activities of government bodies and their employees that is not of commercial, but of state interest, as well as information that constitutes a trade secret of an entity engaged in business activities, received by a government body within its competence to perform the functions assigned to it.

The main source reflecting the concept of another secret protected by law is Decree of the President of the Russian Federation of March 6, 1997 N 188 “On approval of the list of confidential information” (as amended on September 23, 2005), which approved the list of confidential information.

Other secrets protected by law include banking, lawyer, medical, will, secret of adoption of a child, etc.

Federal Law No. 90-FZ subp. "c" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is supplemented with such a reason for termination of an employment contract as disclosure of the employee’s personal data. It seems that such data includes any information relating to the identity of the employee that may be known to managers and specialists personnel services, departments of organization and remuneration, accounting.

According to Art. 57 of the Labor Code of the Russian Federation, the employee’s obligation not to disclose secrets protected by law is established by the employment contract, which means the dismissal of the employee under clause. "c" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is possible only if his employment contract provides for such an additional condition. Legal basis to include in an employment contract conditions on non-disclosure of trade or official secrets by an employee, both federal laws and other legal acts can be used, but only to federal level. So, according to Art. 139 of the Family Code of the Russian Federation (as amended on June 3, 2006 N 71-FZ), officials carrying out state registration of the adoption of a child, as well as persons otherwise aware of the adoption, are obliged to maintain the secrecy of adoption.

Dismissal of an employee under clause. "c" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation can be recognized as legal if the following conditions are met:

availability of access, confirmed by written documents, to information constituting state, commercial, official and other secrets protected by federal law;

obtaining the specified information in connection with the performance of job duties;

communication of information protected by federal law to one or more persons;

compliance with deadlines and application of disciplinary sanctions;

there are no obstacles to dismissal - the employee’s illness or being on vacation.

According to the explanations set out in paragraph 43 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, if an employee challenges the dismissal under subsection. "c" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation relate to state, official, commercial and other secrets protected by law, this information became known to the employee in connection with the performance of his job duties and he undertook not to disclose them.

In the absence (unproven) of one or more legally significant circumstances, termination of the employment contract under sub. "c" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation cannot be recognized as lawful and is the basis for reinstating an employee at work, paying him for forced absence, and compensating for moral damage.

Employees who disclose official or commercial secrets contrary to the requirements of the employment contract are obliged to compensate for the losses caused. In accordance with paragraph 7 of Art. 243 of the Labor Code of the Russian Federation, an employee who discloses information that constitutes a secret protected by law is obliged to compensate for losses in full, i.e. he bears full financial responsibility.

Features of the grounds for dismissal under sub. "g" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is that it provides for three disciplinary offenses that have signs of crimes or administrative offenses and disciplinary liability for which can be imposed jointly with criminal and administrative liability.

In accordance with the note to Art. 158 of the Criminal Code of the Russian Federation (as amended on July 27, 2006 N 153-FZ), theft refers to the unlawful gratuitous seizure and (or) circulation of someone else’s property in favor of the culprit or other persons committed for mercenary purposes, causing damage to the owner or other holder of it property. It should be noted that neither the Criminal Code of the Russian Federation nor the Code of Administrative Offenses of the Russian Federation (as amended on June 27, 2006) provides for a division into types of property, while Art. 158 of the Criminal Code of the Russian Federation provides for punishment for secret theft (theft) of someone else's property of any individual (legal entity). In this regard, in paragraph 44 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, an explanation is given that any property that does not belong to a given employee is regarded as someone else’s property, in particular property belonging to the employer, other employees, and also to persons who are not employees of this organization.

Embezzlement is a form of theft through which property legally entrusted to an employee is consumed by him or alienated to third parties. This type theft is associated with a person’s use of his position. When determining this disciplinary offense, it is necessary to prove that the embezzlement was committed by the employee guiltily and unlawfully, and if the fact of embezzlement is proven and the competent authority made a decision to find the employee guilty, the employer has the right to dismiss the employee under subsection. "g" clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Intentional destruction or damage by an employee to the organization's property may also be grounds for dismissal if it is established by an act of the competent authority that has entered into legal force.

Theft, embezzlement, intentional destruction or damage to someone else's property may be considered crimes or administrative offenses depending on the damage caused to the owner or other owner of the property. Thus, if the value of stolen or wasted property does not exceed one minimum wage (hereinafter referred to as the minimum wage), destroyed or damaged property does not exceed 5 minimum wages, then these acts relate to administrative offenses, otherwise - to crimes.

Theft, embezzlement, deliberate destruction or damage to someone else's property can serve as grounds for dismissal only when they are committed at the place of work of the violator of labor discipline, i.e. on the territory of the employing organization or other facility where the employee must perform his work functions.

Due to the fact that the right to bring to administrative and criminal liability vested with the relevant jurisdictional bodies (Federal Law No. 90-FZ specifies which bodies are classified as such), the employer can, if there are signs of an offense, only initiate the initiation of the corresponding case. Dismissal is allowed only after the fact of committing an offense has been established by a verdict or resolution of a court, body, or official authorized to consider cases of administrative offenses that has entered into legal force.

Theft, embezzlement, deliberate destruction or damage to property, being disciplinary offenses, imply, upon dismissal, compliance with the deadlines provided for the application of a disciplinary sanction. Established Art. 193 of the Labor Code of the Russian Federation a month period for applying a disciplinary measure in the form of dismissal under sub. "g" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is calculated from the date of entry into force of a court verdict or resolution of a court, body, official authorized to consider cases of administrative offenses.

The disciplinary offense includes the following legally significant circumstances:

committing theft (including small) of someone else's property at the place of work, including through its embezzlement, deliberate destruction or damage to property;

the presence of a court verdict or ruling that has entered into legal force, establishing the fact of the commission of the listed actions;

compliance with the deadlines and procedures for bringing to disciplinary liability;

correspondence of the severity of the disciplinary offense to the measure of disciplinary action in the form of dismissal;

no obstacles to dismissal in the form of employee illness or being on vacation.

Failure to prove one or more legally significant circumstances is the basis for reinstating the employee at work, paying him for forced absence, and compensating for moral damages.

It should be noted that the fact of a conviction or a decision imposing an administrative penalty against an employee does not mean that the employer is obliged to dismiss the employee. Dismissal under clause "g" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employer has the right to apply it to the employee at his own discretion. Only if a guilty verdict is passed against the employee, by which the employee is sentenced to punishment that precludes the continuation of his previous work, the employer is obliged to terminate the employment contract, but on the basis provided for in paragraph 4 of Art. 83 Labor Code of the Russian Federation.

In accordance with Art. 21 of the Labor Code of the Russian Federation, the main responsibilities of an employee include compliance with labor protection requirements and ensuring its safety. In addition, Art. 212, 214 of the Labor Code of the Russian Federation regulate the responsibilities of the employer and employee in the field of labor protection, the analysis of which allows us to conclude that the employer has a much more significant amount of duties and responsibilities, to which, according to Art. 212 of the Labor Code of the Russian Federation, in particular, includes: conducting training on labor protection, on-the-job training and testing knowledge of labor protection requirements; organization of training safe methods and methods of performing work and providing first aid to victims at work; organizing control over the state of working conditions in the workplace; carrying out certification of workplaces according to working conditions; informing workers about labor conditions and safety in the workplace; familiarizing workers with labor safety requirements, organizing established by law cases of mandatory preliminary and periodic medical examinations. If the employer does not comply with these requirements of the Labor Code of the Russian Federation, then the issue of the employee’s guilt in violating labor protection requirements should be investigated further. For example, if an employee, when hired, was not familiar with the safety rules and did not undergo the mandatory induction training, then dismissal under clause. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is hardly possible, since he was not properly familiarized with labor protection requirements.

In accordance with Art. 214 of the Labor Code of the Russian Federation, the employee’s responsibilities include:

compliance with labor protection requirements;

correct use of personal and collective protective equipment;

completing training in safe methods and techniques for performing work and providing first aid to victims at work, instruction on labor protection, on-the-job training, testing knowledge of labor protection requirements;

immediately notifying your immediate or superior manager about any situation that threatens the life and health of people, about every accident that occurs at work, or about a deterioration in your health, including the manifestation of signs of an acute occupational disease (poisoning);

passing mandatory preliminary (upon entry to work) and periodic (during labor activity) medical examinations (examinations), as well as extraordinary medical examinations (examinations) at the direction of the employer in cases provided for by the Labor Code of the Russian Federation and other federal laws.

So that the employer has grounds to dismiss the employee under subsection. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, violation by an employee of labor protection requirements must be gross and obvious. In this case, the employer will have the right to use this basis for dismissal only if he himself complied with all the requirements of labor protection legislation and the employee’s actions were guilty, i.e. the employee did not do what he was supposed to do and what he was informed about or what he was trained to do.

It is important that dismissal on the grounds in question is possible only if the violation committed by the employee entailed serious consequences or knowingly created a real threat of such consequences. An investigation is conducted into the fact of the violation, during which the employee’s guilt is established. Depending on what kind of consequence took place, the fact of committing a disciplinary offense is documented in an accident report, expert opinion, a resolution of a federal labor protection inspector, a resolution of an official of the relevant federal executive body, etc. Creation real threat the occurrence of serious consequences may be confirmed by an order from the federal labor protection inspector or officials of other control and supervisory authorities.

Termination of the employment contract under clause. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation is possible under the following conditions:

the employee is duly familiarized with the specified requirements;

the employer provided the employee with labor safety and conditions that meet occupational safety and health requirements;

the employee’s violation of these requirements entailed serious consequences or created a real threat to their occurrence;

the deadlines and procedure for bringing to disciplinary liability have been observed;

the severity of the disciplinary offense corresponds to the extreme measure of disciplinary action;

there are no obstacles to dismissal in the form of employee illness or being on vacation.

The employer must prove these conditions, otherwise there is a basis for the employee’s reinstatement at work with payment for the period of forced absence and compensation for moral damage.

In accordance with clause 7, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer if guilty actions are committed by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer.

In accordance with Art. 192 of the Labor Code of the Russian Federation, in the event that an employee commits guilty actions that give rise to loss of trust, at the place of work and in connection with the performance of his job duties, dismissal on the basis provided for in clause 7, part 1, art. 81 of the Labor Code of the Russian Federation will constitute a disciplinary sanction. This addition was introduced into the Labor Code of the Russian Federation by Federal Law N 90-FZ, and within the meaning of the previously valid norm, dismissal on this basis was not considered a disciplinary sanction.

The basis under consideration has a limited scope, since it applies only to those employees who have direct access to monetary or commodity values. By virtue of clause 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, these include workers who receive, store, transport, distribute and other actions with material assets. As a rule, agreements on full individual or collective financial responsibility are concluded with such employees. However, other subjects with whom an agreement on full financial responsibility was not concluded, but who are directly entrusted with monetary or commodity values ​​in connection with their work activities, may be dismissed under clause 7 of Art. 81 Labor Code of the Russian Federation. For example, a store seller, with whom an agreement on full financial liability was not concluded, may be fired on this basis if the buyer is shortchanged. This dismissal is legal, since the seller is one of the persons directly servicing the goods. Employees servicing monetary or commodity valuables usually bear full financial responsibility for the entrusted valuables (clauses 1, 2 of Article 243 of the Labor Code of the Russian Federation).

According to paragraph 7 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, an employee who does not directly service monetary or commodity assets cannot be fired. For example, the dismissal of a chief accountant on this basis will be illegal, since current legislation cannot impose responsibilities related to direct financial responsibility for funds and material assets.

According to paragraph 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, a prerequisite for dismissal on this basis is the fact that the employee committed such guilty actions that gave the employer grounds for losing confidence in him. The basis for the loss of trust must be the specific commission by the employee of guilty actions, confirmed by some written evidence, which, for example, can serve as an act of shortchanging, weighing the buyer down by the seller.

The employee’s guilt in committing specific actions that give rise to loss of trust in him is a mandatory circumstance to be established, otherwise the employee cannot be dismissed on the grounds of loss of trust.

It should be borne in mind that the basis for loss of trust in an employee can be both guilty actions committed by him at the place of work or outside the place of work and in connection with the performance of his work duties, and guilty actions giving grounds for loss of trust committed by the employee not in connection with the performance of his labor duties (committing theft, bribery, and other mercenary offenses). Such guilty actions of an employee may serve as grounds for dismissal of the employee under clause 7, part 1, art. 81 of the Labor Code of the Russian Federation, however, in the first case, dismissal will be a disciplinary sanction, but in the second - not.

Loss of trust is possible not only for abuse committed by an employee, but also for his negligent attitude towards his job duties (for example, storing keys to premises with material assets in the wrong place).

Guilty violation of labor duties by an employee can serve as grounds for loss of trust both in cases where it was systematic and when it was a one-time but gross violation.

When deciding on dismissal, it does not matter whether the employee’s guilty actions caused damage to the employer or not. This ground for termination of an employment contract is independent, and a court verdict that has entered into force is not required. It is sufficient for the specific fact that an employee directly servicing monetary or commodity assets committed guilty actions that give grounds for the loss of trust in him by the administration.

performance of a labor function by an employee directly servicing monetary or commodity assets;

committing guilty actions that give rise to loss of trust on the part of the employer;

the severity of the disciplinary offense corresponds to at least a disciplinary sanction in the form of dismissal;

In accordance with clause 8, part 1, art. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated with an employer if an employee performing educational functions commits an immoral offense that is incompatible with the continuation of this work.

Dismissal on this basis, as well as on the basis provided for in clause 7, part 1, art. 81 of the Labor Code of the Russian Federation, can be a disciplinary sanction only if an employee commits an immoral offense at the place of work and in connection with the performance of his job duties. In this case, dismissal will be lawful if the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.

The reason under consideration, like the previous one, can be applied only to a certain category of workers performing educational functions. According to paragraph 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2, such employees include teachers, lecturers educational institutions, masters of industrial training, teachers of children's institutions. It does not matter where the immoral act was committed - at work or at home.

Despite the fact that the concept of “immoral offense” is often used in law, its definition is not contained in any normative act. Based on the meaning of clause 8, part 1, art. 81 of the Labor Code of the Russian Federation, an immoral offense is a guilty action or inaction that violates moral standards, moral norms, rules of behavior in society, contrary to the content of the educational and labor function of the educator.

It seems that immoral offenses should include appearing in public places while intoxicated, which offends the human dignity of others and public morality, public foul language, beating people, etc.

It is important to take into account that Art. 336 of the Labor Code of the Russian Federation establishes additional grounds for termination of an employment contract with teaching staff:

repeated gross violation of the charter within one year educational institution;

the use, including one-time use, of educational methods associated with physical and (or) mental violence against the personality of the student (for example, striking, uttering insults);

reaching the age limit for filling the corresponding position in accordance with Art. 332 of the Labor Code of the Russian Federation (for example, for filling the positions of rector, vice-rector, head of a branch (institute) in universities, the age limit is 65 years);

non-election through competition to the position of scientific and pedagogical worker or expiration of the period for election through competition.

It should be borne in mind that the commission of an immoral offense must be reliably proven, since dismissal based on a general assessment of a person’s behavior, as well as insufficiently verified facts, is unacceptable. The components of this offense include:

performance of a labor function by an employee performing educational functions;

the employee commits an immoral offense;

compliance with the deadlines and procedures for imposing penalties;

the severity of the disciplinary offense corresponds to at least a disciplinary sanction in the form of dismissal;

no obstacles to dismissal - employee illness or being on vacation.

Failure to prove one of these circumstances provides grounds for declaring the dismissal illegal.

Clause 9, Part 1, Art. 81 of the Labor Code of the Russian Federation provides that an employment contract can be terminated by the employer if an unjustified decision is made by the head of the organization (branch, representative office), his deputies and the chief accountant, which entails a violation of the safety of property, its unlawful use or other damage to the organization’s property. This basis is additional and applies only to the head of the organization (branch, representative office), his deputies and the chief accountant. Other employees cannot be dismissed on this basis.

According to Art. 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Labor Code of the Russian Federation, other federal laws and other regulatory legal acts of constituent entities of the Russian Federation, regulatory legal acts of local governments, constituent documents of a legal entity (organization) and local regulatory acts, manages this organization , including performing the functions of its sole executive body.

As a rule, the subjects covered by clause 9, part 1, art. 81 of the Labor Code of the Russian Federation, are vested with significant powers regarding the disposal of the organization’s property, including funds.

According to the explanations given in paragraph 48 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, when deciding whether the decision taken is unfounded, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether it was possible they can be avoided if a different decision is made. Moreover, if the employer does not provide evidence confirming adverse consequences, dismissal under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal.

Thus, the fact that an unjustified decision was made by a certain person, if it did not entail a violation of the safety of property, its unlawful use or other damage, cannot serve as a legal basis for dismissal for the reasons specified in this paragraph. And dismissal on this basis can be considered lawful only if there is a causal connection between the unjustified decision made by the said employee and the adverse consequences that occurred.

In addition, the actions of the manager (his deputy, chief accountant) that served as the reason for dismissal must be culpable. The presence of guilt implies that the person was aware of the illegality of his actions, knew or should have known about possible consequences and desired their occurrence or was indifferent to the possibility of their occurrence.

At the same time, the dismissal of a manager for erroneous actions that resulted in damage to the organization, even significant, will be illegal. In case of erroneous actions, the manager may be recognized as unsuitable for the position held due to insufficient qualifications, but no more.

The employer is given the right to independently qualify accepted by the person the decision is unfounded, and he must be guided by the facts. When the court considers a dispute about dismissal under clause 9, part 1, art. 81 of the Labor Code of the Russian Federation, the employer is obliged to prove the unfoundedness of the decision.

Clause 2 of Art. 55 of the Civil Code of the Russian Federation establishes that a branch is considered a separate division of a legal entity, located outside the location of the legal entity and performing all or part of its functions, including the functions of a representative office. In accordance with paragraph 1 of Art. 55 of the Civil Code of the Russian Federation, a representative office is a separate division of a legal entity, located outside the location of the legal entity, representing its interests and protecting it. The heads of branches and representative offices are appointed by the legal entity - their founder and act under his power of attorney. A division can be considered separate if it operates on the basis of a charter or regulation approved for it by an enterprise, institution, or founding organization, and has its own current or current account. The employment contract with the heads of other structural divisions and their deputies cannot be terminated due to a single violation of labor duties. However, an employment contract with such employees can be terminated for a one-time gross violation of their labor duties under clause 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations in accordance with sub. "a" - "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation or in other cases if provided for by federal laws.

Dismissal under clause 10, part 1, art. 81 of the Labor Code of the Russian Federation, in contrast to dismissal under clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, which also establishes a single gross violation of labor duties as a basis for dismissal, does not have a list of offenses that should be considered a gross violation of labor discipline. Thus, paragraph 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 on this matter contains an explanation: as a gross violation of labor duties by the head of the organization (branch and representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to them persons under an employment contract of obligations, which could lead to harm to the health of employees or property damage to the organization.

In this regard, we believe that the definition of a gross violation of labor duties depends on the specific production situation, which takes into account not only the nature of the disciplinary offense, but also the consequences caused by it. Objective criteria for classifying an offense as a gross violation of labor duties are, firstly, clearly defined labor responsibilities of the manager (either in the employment contract or in statutory documents), and secondly, it is the severity of the violation, i.e. first of all, the guilt of the act (the person must have been aware that he was grossly violating his work duties).

It is obvious that the list of grounds that could serve as a reason for dismissal under clause 10, part 1, art. 81 of the Labor Code of the Russian Federation, must be recorded in a specific employment contract concluded with the relevant categories of workers, or in local regulations(for example, in job descriptions). In addition, these grounds should be reflected in regulations more high order(in laws, government regulations, etc.).

Considering that dismissal on the basis in question is a disciplinary measure, when terminating an employment contract, it is important to comply with the rules for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.

The components of this offense include:

performing the labor function of the head of an organization, branch, representative office, or his deputy;

committing a gross violation of one’s official duties, which does not fall within the scope of subsection. "a" - "d" clause 6, part 1, art. 81 Labor Code of the Russian Federation;

compliance with the deadlines and procedures for imposing penalties;

the severity of the disciplinary offense corresponds to at least a disciplinary sanction in the form of dismissal;

absence of obstacles to dismissal in the form of employee illness or being on vacation.

Unfortunately, in practice situations quite often occur illegal dismissal, in this regard, we cite as an example the decision of the Meshchansky District Court of Moscow.

The first deputy chairman of the board of the bank, S., who was dismissed on the basis of clause 10 of Art., applied to the court with a demand for reinstatement. 81 of the Labor Code of the Russian Federation, on payment for forced absence, compensation for moral damage. From the case materials, it appears that S. was fired during a period of temporary incapacity for work, which is confirmed by a certificate of incapacity for work. It does not follow from the dismissal order what kind of violation was committed by S. During the trial, the defendant was unable to present evidence indicating that the plaintiff committed a gross violation of his labor duties. In this regard, the court came to the conclusion that the dismissal was carried out in violation of the requirements of the law, since the dismissal order was issued during the plaintiff’s illness. The court made a decision: to recognize the dismissal as illegal and to reinstate S. in the position of first deputy chairman of the bank’s board and to recover in his favor the average earnings for the period of forced absence.

The list of cases of application of dismissal as a disciplinary sanction is clearly outlined by the Labor Code and is exhaustive. Incorrect application of this type of penalty can lead to an appeal in court and the employee’s reinstatement in his position and, accordingly, payment of compensation for forced absence. And payment for forced absenteeism is made from the day the dismissal order is issued: only from this time absenteeism is forced.

Let's consider the grounds for applying dismissal as a disciplinary sanction.

Clause 5 of Art. 81 of the Labor Code of the Russian Federation provides for termination of an employment contract for repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.

To recognize such a dismissal as legal, the following circumstances must be met simultaneously:

1) the employee has a disciplinary sanction for the last working year, it has not been withdrawn or repaid;

2) the employee committed a disciplinary offense without good reason;

3) the employer requested from the employee a written explanation of the reasons for the labor offense no later than one month from the date of discovery of the offense and six months from the date of its commission (two years for an audit)

4) if the employee is a member of a trade union, then the opinion of the trade union must be taken into account.

The dismissal order in this case must indicate as a basis the numbers and dates of orders on previously imposed disciplinary sanctions, the essence of the offense, the date and circumstances of its commission, consequences, absence of valid reasons, absence (presence) of an explanation from the employee.

Clause 6 of Art. 81 of the Labor Code of the Russian Federation provides for a single gross violation of labor duties by an employee as grounds for dismissal.

Clause 6 of Art. 81 of the Labor Code of the Russian Federation establishes the following grounds for dismissal.

1. Absenteeism (clause “a”) – absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as absence from the workplace without good reason for more than four hours in a row during a working day day (shift).

Paragraph 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 17, 2004 No. 2 states that dismissal on this basis can be made for the following violations:

a) abandonment of work without good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the employment contract, as well as before the expiration of the two-week notice period (see Article 80 of the Labor Code of the Russian Federation);

b) absence from work without good reason, that is, absence from work throughout the entire working day (shift), regardless of the length of the working day (shift);

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

d) unauthorized use of time off, as well as unauthorized going on vacation.

TO good reasons The court usually considers the absence of an employee at the workplace as confirmed by documents or testimony:

Employee illness;

Transport delay in case of an accident;

Accidents in the employee’s home, etc. circumstances.

2. Appearing at work in a state of alcohol, drug or other toxic intoxication (paragraph “b”).

An employee who appears at any time of the working day (shift) in a state of intoxication, the employer is obliged to suspend from work on that day (shift). The removal of an employee is formalized by order. If the employee was not suspended from work, evidence of this basis is a medical report, a report drawn up at that time, witness testimony and other evidence. In any case, it is necessary to draw up an act of committing an offense.

Let us note that, according to the law, it is possible to prove the fact that an employee is in a state of intoxication without a medical report, but in practice this is quite problematic.

3. Disclosure of secrets protected by law - state, commercial, official and other, which became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (clause "c").

Here it is important to evaluate the following circumstances: does the organization have a trade secret protection regime, is the employee familiar with it, is the employee allowed access to information constituting a trade secret, etc. If at least one clause of the Federal Law “On Trade Secrets” is not observed, dismissal such a basis will be considered illegal.

4. Commitment at the place of work of theft (including small) of someone else’s property, its embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a relevant administrative resolution (paragraph “d”).

Here key point is the presence and entry into force of the act of the authorized government agency– all internal documents (memos, inventory acts, etc.) have no force for dismissal on this basis.

5. Violation by an employee of labor protection requirements, if this violation entailed grave consequences or knowingly created a real threat of such consequences (paragraph “e”), if it was established by the commission or the labor protection commissioner.

Grave consequences include: an industrial accident, an accident, a catastrophe, the presence of which (or the presence of a known real threat of their occurrence) must be proven by the employer when considering the dispute in court.

The Labor Code also provides the following grounds for dismissal for a single gross violation of labor duties.

Committing guilty actions that give rise to loss of confidence in him on the part of the employer (clause 7 of article 81 of the Labor Code of the Russian Federation).

Only an employee directly servicing monetary or commodity assets can be dismissed on this basis, regardless of what type of material liability (limited or full) is assigned to him.

The employer must prove the mistrust of the employee (acts of calculation, weighting, shortage, etc.).

Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation).

An offense that contradicts generally accepted morality is immoral (appearing in public places while intoxicated, obscene language, fighting, degrading behavior, etc.). An offense can be committed not only at work, but also at home.

The employer will have to establish both the fact of the misconduct itself and the circumstances interfering with work activity of this employee as a result of such an offence.

Dismissal of the heads of an organization (branch, representative office), their deputies and chief accountants for their adoption of an unfounded decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).

The unreasonableness of a decision is a subjective concept, so it is assessed by the employer. However, if the employee disagrees with this assessment and a labor dispute arises, it is the employer who will have to prove the employee’s guilt.

A one-time gross violation of their labor duties by heads of organizations (branch, representative office), their deputies, chief accountants (clause 10 of article 81 of the Labor Code of the Russian Federation).

The obligation to prove that such a violation actually occurred and was of a gross nature also lies with the employer.

In accordance with paragraph 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2, as a gross violation of labor duties by the head of an organization (branch, representative office), his deputies should, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm health of workers or causing property damage to the organization.

Repeated gross violation of the charter of an educational institution by a teaching staff member within a year (clause 1 of Article 336 of the Labor Code of the Russian Federation).

Sports disqualification for a period of six months or more, as well as the use, including single use, of doping agents and (or) methods by athletes (Article 348.11 of the Labor Code of the Russian Federation).

When dismissing an employee for any of the above reasons, the terms and rules for applying disciplinary sanctions established by Articles 192 and 193 of the Labor Code of the Russian Federation must be observed.

Disciplinary action in the form of dismissal is a measure of influence on an employee who has violated his work obligations.

The admission of a person to the company's staff and his appointment to a position is always formalized by signing. Under the terms of this document, a person undertakes certain obligations, for the fulfillment of which he will be paid a certain amount of money.

For improper performance of official duties or commission of misconduct, various measures of influence may be applied to the employee, up to and including termination of professional cooperation. A similar thing is the dismissal of a person from a position and the dismissal of a person from an organization.

This approach is used when other methods have exhausted themselves. The party interested in terminating the interaction, namely the head of the company, should consider the following important points:

• in what cases is it permissible to apply this penalty;
• what may serve as a reason for applying such a measure to an employee;
• what is the procedure for implementing this method of influence.

These issues are extremely important, since in practice, the reason for a complaint from a dismissed employee is often the incorrect implementation of the procedure for terminating the working relationship.

The possibility of dismissal as punishment for misconduct is provided for in Article 192 of the Labor Code of the Russian Federation. This method is used if other attempts fail.

Although the current regulations provide for cases when dismissal can occur immediately, without the use of other measures. This happens when a person commits serious violations of his obligations. These are the offenses specified in. It should be noted that not all such violations qualify for immediate dismissal. Therefore, the manager needs to be very careful when making decisions in order to avoid legal proceedings in the future.

To ensure that the procedure for terminating professional interaction does not violate current standards, the following mandatory conditions must be met:

• the person must have an outstanding disciplinary sanction for a previously committed offense;
• the employee committed a new violation of his obligations;
• written explanations about what happened were received from the offender;
• the decision on punishment was agreed upon by the manager with the trade union body;
• the person was familiarized with the relevant order within the time period established by the norms.

Possible reasons for application

Dismissal as a disciplinary sanction is a measure that can be immediately applied to a person only in cases of very serious misconduct that affects negative impact for the normal functioning of the entire company as a whole. Such situations include the following cases:

• the commission by a person of more than one offense in a row, if measures of influence have already been applied to him;
• absence from work place for more than four hours continuously;
• consuming alcohol or illegal drugs during work or appearing on company premises under the influence of such substances;
• communication of limited information to unauthorized persons;
• theft, damage or loss of property assets of the organization, provided that the guilt has been established in judicial procedure or an authorized specialist;
• human violation current rules safety, if this caused an accident, disaster or damage to the health of workers;
• misconduct on the part of a person whose duties include servicing inventory and Money, which became the reason for the termination of the trust relationship;
• providing false information about income received or refusing to transfer it, as well as about the income of the other half; such issues apply more to people who occupy leadership positions - bosses, their deputies, chief financial specialists;
• immoral behavior of a person who raises children;
• incorrect order of the manager, which caused damage to the property or interests of the organization;
• one-time serious misconduct on the part of the manager;
• providing false information and data when appointing a position;
• an act by which a teaching specialist violated the requirements internal rules;
• deprivation of qualification of an athlete for more than six months.

Violation of labor duties

One of serious reasons dismissal is a person's failure to fulfill or improperly fulfill his work obligations. Such behavior may be grounds for disciplinary action and, as a consequence, termination business cooperation.

According to the rules of Article 21 of the Labor Code of the Russian Federation, when hired as a member of a company, an employee is assigned the following job responsibilities:

• fully and properly fulfill all obligations specified in the employment agreement and determined by applicable regulations;
• prevent violations of the company’s internal operating procedures;
• strictly follow the requirements of work discipline;
• fulfill ;
• do not violate internal security rules;
• treat with care the property assets of the organization and other companies that are in temporary storage or use;
• immediately inform management about all facts that pose a threat to the organization’s property, employees, as well as the life and well-being of others.

Inadequate fulfillment of these obligations or self-refusal from their fulfillment can lead to extremely serious consequences both for the organization and for the people.

Therefore, in such cases, the manager has every right, without first resorting to other measures of influence.

Loss of trust, immoral act

Another reason for terminating business cooperation is the loss of trust in a person. This fact also allows the manager to fire the employee.

It should be noted that this reason may not apply to every employee. The specificity of human activity must meet the following requirements:

• The person must be given inventory or cash for storage and use. This applies to financial specialists, storekeepers, housekeeping managers, and drivers.
• An agreement must be signed with the person for the specified values ​​and funds. Such an agreement can only be signed with a person who is at least eighteen years old and whose activities will involve the use of facilities of this kind, in accordance with the current rules.

In case of failure to comply with the terms of such an agreement, this will be considered a reason for ending the interaction.

Examples of such offenses are: appearing in public places under the influence of alcohol and illegal drugs, violence against others, and the use of profanity.

Unacceptable methods of education, violation of the regulations by the teacher

Unacceptable methods of education are specific violations of work discipline, since they are characteristic only of the pedagogical field of activity.

Such methods can be divided into two types.

Firstly, the physical version of the impact. It manifests itself in violence towards the recipient, that is, inflicting bodily harm on the latter. Moreover, these include not only kids who go to kindergarten, or those who study in secondary schools, but also students after school education. However, it should be noted that in order to dismiss a person for a disciplinary violation of this kind, it is necessary to conduct an inspection by competent law enforcement agencies, since such behavior also entails criminal liability.

Secondly, violence mental nature. It is expressed in unacceptable and profane words and expressions in relation to the pupil or pupil, which cause the latter moral suffering.

The charter of any pedagogical organization provides for a number of conditions for the conduct of specialists, for violation of which a person will be dismissed. These include:

• compliance with internal rules of the organization;
• proper performance of their duties;
• polite and correct attitude towards students.

A teacher can be fired for committing gross misconduct.

However, such a concept is not defined by current standards. Therefore, failure to comply with these requirements may serve as grounds for termination.

Rules for bringing to responsibility

It is impossible to apply disciplinary measures to an employee just like that, only on the basis of a violation that has become known to the manager. This is preceded by a whole procedure.

First of all, you need a reason to start implementing it. It could be a report from the violator’s immediate superior, or an act drawn up by the inspection commission.

After this, it is necessary to request a written explanation from the person about what caused the offense. A person must give such explanations within two days. In case of refusal, a report on this is drawn up. The worker’s reluctance to explain anything is not an obstacle to further action.

The current regulations allow, after receiving clarifications, to issue an order. However, in practice, it is correct to conduct an internal review. Should be asked possible participants incident, as well as obtain other documentary evidence of the misconduct.

After receiving all the necessary data and information, the manager has a time period to make a decision. It is one month from the moment the violation became known. In any case, after six months it will be impossible to punish the person. The exception here is the results financial checks. In such a situation, two years are given to make a decision.

The violator must be familiarized with the manager’s order on punishment no later than three days from the date of execution of the document. This period does not include time of absence of a person, for example, illness or.

In case of refusal to familiarize, a report is drawn up.

Arbitrage practice

In one of the courts of the Russian Federation, there was a hearing of a person’s petition asking for reinstatement in his position, payment of funds for the period of an unforeseen break and for moral damage.

During the study of the request, it was established that the initiator was a member of labor relations With pedagogical organization, on the basis of a signed agreement, under the terms of which he was appointed to the position service personnel. During the work process, the person was transferred to the position of teacher. However, cooperation with him was terminated due to the fact that he committed a gross misconduct on his part, again, because he demanded money from the parents of the students to improve the educational premises.

The initiator believed that such termination of cooperation did not meet the requirements of current standards, since the assistance was provided in voluntarily, and did not affect the learning process of children in any way. Parents received a full and detailed report annually on how money was spent.

The representative of the organization did not agree with the applicant’s arguments and explained that, according to the company’s charter, the collection of funds, as well as the provision of other services on a paid basis, are prohibited. The applicant was informed about this upon appointment to the position. After committing the first offense, an explanation was taken from the offender and a reprimand was given, and a preventive conversation was held. But despite this, the initiator again violated the charter. For this reason, cooperation with him was terminated.

Having studied all the materials presented, the court came to the conclusion that the company did not violate its obligations, and the dismissal was legal. In this regard, the initiator’s request was completely denied.

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