How and why you can fire an employee without his consent. Legal grounds for dismissing an employee without his consent

Instructions

Dismissal employee possible, if the employee does not correspond to the position held, not if the employer has terminated his employment, due to the employee’s repeated failure to fulfill his direct duties, a change in the owner of the enterprise, a one-time gross violation of labor duties by the employee (lack of employee throughout the entire working day or four hours without a break), etc. The list is exhaustive and is regulated by Article 81 of the Labor Code of the Russian Federation.

If you decide to quit employee on your own initiative, you must inform him about this in advance. Draw up an order in which you indicate the reason for dismissal, the date, affix the company seal, and sign. Familiarize yourself employee with this document for signature. You must prepare a copy of the order so that the employee can take it for himself. In case of refusal to sign, draw up an act and attach it to the document or put a note about this on the order, below your own signature.

The last day of work for the dismissed person will be considered the day the order is issued. At the same time, you are obliged to give him documents from your personal file. About dismissal, a corresponding entry is made in the labor report, the rule of law, the basis for dismissal are indicated, and the signature of the head of the organization is affixed.

If an employee resigns on his own initiative, he is obliged to inform management about this at least two weeks before the last working day. During this time, management selects a new employee and prepares the necessary list of documents for the previous one.

There are cases when an employee who has been decided to be fired is on the list. In this case, the employer does not have the right to dismiss him on his own initiative until he recovers, but if the employee himself wants to terminate the working relationship, then there are no obstacles to issuing a dismissal order.

In any case, follow the dismissal procedure. Ask to write in advance employee an explanatory note justifying the violation of labor laws, if he refuses to prepare the document, draw up an act with the presence of at least two witnesses, sign it and subsequently attach it to the dismissal order. You can carry it out in several stages, for example, first reprimand the employee, then reprimand him, then and finally, the employee’s position.

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An employer, in accordance with the Labor Code of the Russian Federation, has the right to dismiss an employee for a number of reasons. This list is imperative; you cannot arbitrarily supplement it with any reason not listed there. In addition, the law does not allow employers to dismiss certain categories of persons unilaterally. An exception is the liquidation of an organization. Therefore, in order to fire an employee competently, you need to know and take something into account.

Instructions

You can fire an employee if he is not in the position he occupied, has not passed certification, has repeatedly failed to perform his direct duties, or has committed other gross violations. It is also possible to fire a person for absenteeism, that is, absence from the workplace for a whole working day or more than 4 hours in a row, due to a change in the owner of the enterprise, and also if you, as an employer, cease your activities. This is, of course, not a complete list. The full list is exhaustive, and it is regulated by Article No. 81 of the Labor Code of the Russian Federation.

If you decide to fire an employee on your own initiative, let him know about it in advance. Draw up an order where you need to indicate the reason for dismissal, as well as the date, put the company seal and sign. Familiarize the employee with the document and offer to sign it. Don’t forget to make a copy of the order - the employee will take it for himself. If he refuses to sign the document, draw up a corresponding act, and then attach it to the order or, below your signature, make a note about this on the document.

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

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

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

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

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

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

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

Now let's look at each point separately.

Dismissal at your own request

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

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

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

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

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

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

Dismissal based on certification results

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

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

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

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

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

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

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

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

Dismissal due to non-compliance with labor discipline

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

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

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

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

Dismissal due to a single gross violation

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

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

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

Absenteeism for a certain part of the workday without warning;

Disclosure of commercial or state secrets;

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

Theft, embezzlement or destruction of property in the workplace.

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

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

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

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

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

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

Dismissing an employee: solving the problem peacefully

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

How to fire an unwanted employee? The head of a private organization approached me with this question. In practice, there are a number of ways in which you can fire an unwanted employee.

Dismissal by agreement of the parties

The first, most civilized way to dismiss an unwanted employee is dismissal by agreement of the parties, that is, according to Article 78 of the Labor Code of the Russian Federation. But what if the unwanted employee does not want to quit? One way to force an employee to quit is to offer him some kind of severance pay or, in other words, monetary compensation. Severance pay upon dismissal by agreement of the parties is not provided for by law, but the law does not prohibit its payment by agreement between the employee and the employer. The same agreement determines the amount of such benefits. Basically, monetary compensation in such cases is set at 2-3 monthly salaries of the employee, that is, by analogy with dismissal due to reduction in headcount or staffing.

If an employee has committed a disciplinary offense for which he can be dismissed, but the employer has not collected the necessary evidence or violated the necessary procedure for imposing a disciplinary sanction, the employer, for fear of dismissal at the initiative of the employer, may offer the employee to resign by agreement of the parties with or without compensation. (For example, absenteeism, repeated violations of labor discipline, showing up at work while intoxicated).

The disadvantages of this basis for dismissing an unwanted employee are as follows.

1. There is a category of workers for whom dismissal by agreement of the parties, even with payment of compensation, is not acceptable, these are pregnant women, persons listed in Article 261 of the Labor Code of the Russian Federation and workers who understand that they cannot find a better job. In a word, for some reason, an employee may not agree to dismissal by agreement of the parties, even with the payment of generous monetary compensation.
2. In most cases, if the employee agrees to resign, the employer will have to bear the cost of paying monetary compensation.
3. Practice shows that an employee can subsequently challenge dismissal by agreement of the parties due to the employee’s defect of will. Judicial practice knows many examples when the claims of such employees were satisfied by the court.

The advantages of this foundation:

1. It allows the employee and employer to reach a compromise and part ways in a civilized manner.
2. This method of dismissal is simple to implement.
3. Despite the existence of positive judicial practice for employees dismissed by agreement of the parties, it is quite difficult to prove the presence of a defect of will in court.

What arguments can force an employee to resign by agreement of the parties?

1. Convince the employee that he will still be dismissed due to a reduction in numbers or staff or for negative reasons and with less compensation or without payment thereof.

1. Dismissal by agreement of the parties saves the employee’s time, which would be spent upon dismissal due to reduction in headcount or staff;
2. Dismissal by agreement will allow the employee to agree with the employer on the amount and procedure for payment of compensation.

Dismissal due to staff reduction

Another reason for dismissing an unwanted employee is dismissal under clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, that is, for staff reduction. When dismissing someone on this basis, it is important to follow the dismissal procedure provided for by law and prevent violations of labor laws.

Disadvantages of this ground for dismissal:

1. complicated dismissal procedure.
2. There is a high risk of the employee being reinstated in the event of a legal dispute due to violation of the dismissal procedure.
3. The dismissed employee may belong to the category of persons enjoying a preferential right to remain at work; he needs to be offered another job.
4. Material costs for payment of severance pay.

The advantages of this foundation:

If you scrupulously follow the dismissal procedure, you will not undermine its legality.

Dismissal for absenteeism

Another reason for dismissing an unwanted employee is absenteeism, that is, absence from work for the entire working day or for 4 hours in a row.

The disadvantages of this ground for dismissal are;

1. An employee can be disciplined and not commit absenteeism. Being late for work, as a rule, does not last more than 4 hours in a row, and therefore is not absenteeism.
2. A rather complex dismissal procedure that can easily be violated or the employee will provide evidence of valid reasons for absenteeism.
3. There is a high risk of challenging dismissal on this basis in court.

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

This method of getting rid of an unwanted employee is very difficult to achieve. In order to dismiss on this basis, the employer must first adopt a local regulatory act on certification. Before conducting certification, it is necessary to give the employee time to prepare for it, create a certification commission, record the procedure for conducting certification and its outcome in accordance with the requirements of the law, and ultimately provide convincing arguments for the employee’s inadequacy for the position held. Moreover, after all this, the employer must offer the employee another job at home.

In practice, some use the following scheme: the employer changes the job description of an unwanted employee, warning him about this two months in advance. After this, in an additional agreement to the employment contract, the employer specifies the conditions on the basis of which the indicators are considered unfulfilled. Indicator values ​​are taken once a week or once a month, once a quarter. If an employee fails to perform, he is reprimanded, severely reprimanded, and then fired.

The disadvantage of this scheme is that the employee may subsequently challenge changes in the job description. And if in these changes the employer imposes on the employee duties that are not typical for this work, then the court will certainly recognize such changes as illegal.

In addition, this scheme contradicts Russian legislation, since a change in the job description means a change in the employee’s job function, and this is allowed only by agreement of the parties. In addition, the employee’s consent is required to sign additional agreements to the employment contract. If the employee does not want to sign an additional agreement, then nothing will come of it.

In addition, in order to dismiss on this basis, the employer will have to conduct certification in compliance with all legal requirements.

Dismissal of an employee for repeated failure by the employee to fulfill work duties without good reason, if he has a disciplinary sanction

A frequently used basis for dismissing an unwanted employee is dismissal for repeated failure by the employee to fulfill his job duties without good reason.

Here, the employer subjects the employee to disciplinary action for violating or failing to comply with a job description, sometimes unreasonably, and soon again attracts the employee for some violation of discipline. In practice, employees rarely appeal the order to impose the first disciplinary sanction, but when a second disciplinary sanction is issued and dismissal, they appeal both disciplinary sanctions in court, if the three-month period for challenging this sanction has not yet expired.

The employer first subjects the employee to disciplinary action for failure to comply with internal labor regulations, for example, for smoking in the wrong place, if this is stated in the internal regulations and the employee is properly familiarized with these rules, and then for some other similar violation.

In practice, this option of dismissing an unwanted employee is the most effective and achieves the goal. It can be very difficult to challenge such dismissal in court.

Disadvantages of this dismissal option:

1. Long implementation period
2. The disciplinary procedure must be followed scrupulously.
3. An employee can challenge the imposition of a disciplinary sanction in court.

The advantages of this dismissal option:

1. Most employees violate internal labor regulations, and therefore it is not difficult to subject them to justified disciplinary action.
2. Most employees do not challenge in court the imposition of disciplinary sanctions on them in the form of a reprimand.

Dismissal for appearing at work while intoxicated

This reason for dismissal is possible only in relation to employees who are excessively addicted to alcohol. To dismiss an employee on this basis, it is sufficient to properly document the employee’s appearance at work in a state of intoxication once during working hours. To do this, it is necessary to invite the employee to undergo a medical examination. If an employee refuses to draw up an act of refusal to undergo a medical examination in the presence of witnesses, this refusal can be recorded on video. Invite the employee to give an explanation for the fact that he was intoxicated at the workplace, and if the employee does not want to give an explanation, then also draw up an appropriate report after two days that must be given to the employee to give an explanation. The proposal to provide explanations must be recorded in the form of a notification to the employee about this. As a rule, if the fact that an employee is intoxicated at the workplace has been properly recorded, the employee will not be able to challenge the dismissal on this basis in court.

Dismissal for disclosing professional secrets under paragraphs. “c” clause 6, part 1, art. 81TC RF

To dismiss an unwanted employee on this basis, the following is required:

— the organization has a local act defining specific information as a commercial, state or other secret protected by law;

- the employee was familiarized with this act against signature;

— the employee has given a written undertaking not to disclose certain information;

- the fact of dissemination of information that constitutes a secret by this particular employee, which confirms this.

The advantages of this reason for dismissal:

1. Even the personal data of another employee can be a secret, and the very concept of personal data is quite broad, and theoretically it is fashionable to fire an employee, for example, for telling someone the home phone number of another colleague and the amount of his salary.

Disadvantages of this base:

1. Not every employee knows about this or that secret, and therefore not all employees are warned for disclosing it.
2. In practice, it is difficult to identify and prove that information constituting the relevant secret was disseminated by this particular employee.

Dismissal due to changes in significant working conditions

Changing working conditions is the legal right of the employer. Before changing them, the employer must notify the employee about this 2 months in advance, against signature. The employee must either agree to work under new working conditions, or resign according to Article 74 of the Labor Code of the Russian Federation.

However, it should be taken into account that changes in essential working conditions must be caused by production needs in connection with changes in the technological process, labor organization and for other reasons.

In addition, the employer must be prepared to prove in court that it was impossible to maintain the previous working conditions.

The third important point is that the employer must not change the employee’s job function.

The disadvantage of this method of dismissing an unwanted employee is the complex legislative regulation of the dismissal process on this basis. The employer must:

1. inform the employee in writing about the upcoming changes in working conditions;

— written justification of the reasons for the changes introduced;

— offer the employee a vacancy during the entire notice period;

— correctly record all employee consents and refusals;

— dismiss the employee only after the notice period has expired;

— pay the employee severance pay in the amount of two weeks’ earnings.

1. An employee may agree to work with modified working conditions.

Thus, dismissing an undesirable employee is not such an easy task. And in order to fire a competent employee who does not want to lose his job, you will have to spend a lot of effort.

• How to fire a person if he doesn't want to leave his job
• The most common reasons for layoffs
• Dismissal for absenteeism
• Absence from work is a reason for dismissal
• How to fire a pregnant employee
• Inconsistency with the position held

How to fire a person if he doesn't want toleave work

From time to time, employers are faced with a rather difficult question to resolve - how to fire an employee without his desire. To correctly answer such a question, you should thoroughly study the legal framework and become familiar with difficult cases in practice. Labor legislation is represented by many different regulations, which, in particular, provide a relatively larger number of benefits and privileges for employees. Their rights are protected as much as possible from encroachment and illegal violations. That is why the issue of dismissing employees without their consent is difficult and requires utmost care from the boss.

Legal basis for dismissal without the employee's desire

The main act of national legislation that is capable of resolving such disputes between subjects is the Labor Code of the Russian Federation. It contains key concepts and rules for the application of articles, clarified and more widely disclosed in specialized regulations.

First of all, it is recommended to calmly discuss this issue with the employee. This makes it possible to persuade him to write a letter of resignation of his own free will, and also to avoid many labor-intensive processes with documents and lawyers. If agreement could not be reached, answer the question “How can I legally fire an employee?” Article 81 of the Labor Code of the Russian Federation will help you. It describes in detail how to carry out such an operation. All labor legislation of the Russian Federation is aimed at maximum protection of the rights of employees and is aimed at resolving most disputes in their favor.

Dismissal for absenteeism

According to paragraph a, paragraph 6 of Article 81 of the Labor Code, absenteeism is considered a one-time violation by the employee in a gross form of his duties under the employment contract. Based on the analysis of the text of the presented article, absenteeism can be considered the complete absence of an employee from the workplace during the working day/shift, regardless of its total duration. The subordinate must document a valid reason for absence. Otherwise, the employer may be considering how to fire the employee for absenteeism.

Following judicial practice, namely the resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004, we can identify specific situations that are officially considered absenteeism from work. These, in particular, include:

• missing a day of work without a valid reason;
• unauthorized use of vacation days or compensatory days without warning to the boss;
• for no particular reason, being away from the workplace for more than 4 hours in a row;
• a number of other reasons specified in this regulatory act.

How to fire a pensioner without his desire

The dismissal of a pensioner does not provide for any benefits or additional conditions for the employee. If you follow practice, a pensioner can be legally dismissed without his consent in the following cases:

• significant staff reductions;
• inadequacy for the position due to age or health status;
• impossibility of performing the presented work due to health and a number of other reasons.