Voluntary dismissal for health reasons. Dismissal due to incompetence: procedure

The loss of the ability to work due to a health condition entails a complex of problems. For example, it may be the inability to fulfill the duties of the position in full. In this case, before dismissing such an employee for health reasons, the employer will offer him all options available for further work. However, these suggestions may not work in every situation. And if the employee refuses to work easier, the employer has the opportunity to terminate the employment relationship with him. Let's consider how to do it right, and we will touch on such an important aspect as payments upon dismissal for health reasons.

Grounds for dismissal for health reasons

Labor legislation includes the following grounds for dismissal due to the health of an employee:

1. Clause 8 of Part 1 of Article 77 of the Labor Code of the Russian Federation - an employee who did not agree with the proposed work assigned to him, in accordance with the conclusion of the doctors, is subject to dismissal for a period of more than 4 months. The absence of vacancies in the institution that are suitable for the conditions due to physicians also entails the termination of the employment contract.
2. Clause 5 of Part 1 of Article 83 of the Labor Code of the Russian Federation - an employment contract is terminated with a person who has received a medical opinion in the prescribed manner and is recognized by doctors as completely incapable of working.

The conclusion of doctors on the fact of establishing disability and changing the requirements for labor activity is issued according to the rules of Order No. 441n dated 05/02/2012.

How is dismissal for health reasons

Step 1. Get a medical opinion. It is provided by the employee himself or by a medical organization. The conclusion should indicate what work is permissible to perform.

Step 2. Suggest other vacancies. The notification shall be made in writing. A choice of all jobs that are suitable for the employee due to his state of health are provided.

If an employee refuses to get acquainted with available vacancies, draw up an act of refusal! It must be signed by two employees who were present at the same time.

Step 3. Obtain written consent or refusal to transfer. The decision of the employee, both positive and negative, must be made in writing. This will save you from possible problems in the future.

If the employee agrees to another job, a transfer is issued. Otherwise, dismissal. We will consider this situation further.

Step 4. Prepare a notice of termination of the employment contract. The document must indicate the reasons. It is prepared in duplicate, the employee must sign on receipt.

Step 5. Issue an order. Use the unified form T-8. Be sure to familiarize the employee with it under the signature.

Step 6. Make the final calculation. It is necessary to pay wages, prepare and,.

What are the payouts upon dismissal

Mandatory compensation includes:

• salary on the last day of work;
• compensation for vacation that was not used by the employee (Article 127 of the Labor Code of the Russian Federation);
• severance pay for 14 calendar days (part 3 of article 178 of the Labor Code of the Russian Federation in the event that a person is recognized as completely disabled and at the same time refused to be transferred to another place).

If there is a dismissal of one's own free will for health reasons, that is, the employee himself expressed a desire to stop working due to health reasons, severance pay is not payable.

When and how much will be paid upon dismissal for health reasons

Dismissal compensations are subject to issuance on the last working day, in the absence of an employee at work - no later than the day following the request for a calculation.

In order to determine the amount of severance pay, the average daily earnings should be calculated. The calculation algorithm used was approved by Decree No. 922 of December 24, 2007, approving the Regulation on average earnings.

The calculation requires income data for the 12 months preceding the dismissal.

The formula used is the following:

Benefit amount \u003d average daily earnings × number of days (working) included in the payable period (that is, 10 days for a five-day period and 12 for a six-day period).

Average earnings per day is calculated by the formula:

SZ per day \u003d the amount of salary (actually accrued for the days worked in the calculation period, including bonuses and remuneration) / the number of days actually worked in this period.

When calculating the average daily amount, you must adhere to the following provisions:

• the employee has worked less than 11 months - vacation compensation is calculated in proportion to the number of months of working;
• in a big way, the surplus should be rounded in fifteen days;
• working off by an employee for 10.5 months gives the right to calculations in full;
• surpluses less than 15 days are not accepted for calculation.

Let's consider a specific example. Ivanov I.I. assigned 2nd group of disability. The administration of the institution could not find a vacancy suitable for the employee in terms of his health, which means that the latter had to be fired. The day the employee receives documents on the assignment of a disability group is 03/24/2018.

1. The calculation should take into account the income received for the period from 03/24/2017 to 03/23/2018, in the amount of 259,200 rubles.
2. During this period of time, a person worked 216 days.
3. Average earnings per day: 259,200 rubles / 216 days = 1200 rubles.
4. The amount of severance pay: 1200 rubles. × 10 r / day = 12,000 rubles.

The amount does not go beyond the size of three times the average monthly earnings, which means that it is not subject to taxation.

What happens if you don't pay

The liability of the employer comes under the condition of full or partial non-payment of the funds due to the employee (part 6 of article 5.27 of the Code of Administrative Offenses of the Russian Federation).

For the primary violation, a warning or a fine is established:

• to an official - 10,000-20,000 rubles;
• IP - 1000-5000 rubles;
• legal entity - 30,000-50,000 rubles.

Repeated violation entails a fine:

• to an official - 20,000-30,000 rubles or disqualification for up to a year to three;
• IP - 10,000-30,000 rubles;
• legal entity - 50,000-100,000 rubles.

Non-payment of wages can also lead to criminal liability under Art. 145.1 of the Criminal Code of the Russian Federation. The limits of punishment determined by this article vary from a fine to imprisonment for up to 5 years with simultaneous deprivation of the right to engage in certain types of activities.

Thus, the dismissal of an employee due to his state of health is provided for by the current labor legislation. At the same time, the employer should remember the obligation to provide the employee with a number of mandatory payments. Violation of the algorithm of compensation provided may result in penalties of varying severity.

Getman Elena Nikolaevna, expert consultant
Department of legal support of the company PRAVOVEST

The reason for the transfer to another position and even the dismissal of an employee may be the state of his health. Consider questions that are often of concern to the employer and personnel services: what to do with persons who are not allowed to work in a certain profession by the conclusion of a medical board, how to transfer an employee to another position for health reasons or terminate an employment contract with him?

The employee refuses to be transferred to another job for health reasons in accordance with a medical report. Based on Part 2 of Art. 72 of the Labor Code of the Russian Federation, an employee who needs to be provided with another job, the employer is obliged, with his consent, to transfer to another available job that is not contraindicated for him for health reasons. If the employee refuses to transfer or if there is no relevant work in the organization, the employment contract is terminated in accordance with paragraph 8 of Art. 77 of this Code.

The employee does not correspond to the position held or the work performed due to the state of health according to a medical report. In this case, it is necessary to establish the very fact of the employee's inconsistency with the position or work, that is, the employee's mistakes (marriage) in the performance of his labor function. In the event of termination of the employment contract under paragraphs. "a" paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, the employer is obliged, in particular, to provide evidence confirming that the state of health of the employee, in accordance with the medical report, prevented the proper performance of his labor duties.

At the same time, it should be borne in mind that if an employee properly performs his labor duties, however, it turns out that he needs to be provided with another job due to the fact that the work performed is contraindicated for him or dangerous for the team of workers or the citizens he serves, by virtue of Art. 2 tbsp. 72 of the Labor Code of the Russian Federation, if the employee refuses to transfer to another available job that is not contraindicated for him for health reasons, or if the organization does not have the appropriate work, the employment contract with the employee is terminated on the basis of clause 8 of Art. 77 of the Labor Code of the Russian Federation.
In this case, the employee is transferred to an easier job, special working conditions are created for him, or they are fired under paragraph 8 of Art. 77, paras. "a" paragraph 3 of Art. 81 of the Labor Code of the Russian Federation (if the organization does not have a job corresponding to the state of health of the employee or there is no possibility of transfer to another position).

Let's clarify: transfer is possible only with the consent of the employee.

Moreover, when transferring to a lower-paid permanent job in the previous organization, this person is paid his average salary within one month from the date of transfer (and in the case of an industrial injury, occupational disease or other damage to health associated with work, until a permanent loss of professional ability to work is established or until employee recovery).
An employee who is dismissed in accordance with paragraphs. "a" paragraph 3 of Art. 81 for health reasons, a severance pay is paid in the amount of two weeks of average earnings. Cash amounts cannot be withheld from him for unworked days of vacation used in advance. In this case, the article of the Labor Code of the Russian Federation plays a significant role, on the basis of which the employee is dismissed: clause 8 of Art. 77 or para. "a" paragraph 3 of Art. 81. In accordance with Art. 178 of the Labor Code of the Russian Federation upon dismissal of an employee under paragraphs. "a" paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, he is entitled to a severance pay in the amount of two weeks of average earnings, and upon dismissal under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation - no.

The employee is recognized as completely disabled in accordance with the medical report. In this case, the dismissal is carried out under paragraph 5 of Art. 83 of the Labor Code of the Russian Federation, because according to the conclusion of the MSEK, the possibility of continuing labor activity is completely excluded, and transfer to easier work is unacceptable. This is an objective circumstance that does not depend on the will of the parties. In this case, severance pay is not paid.

Dismissal for health reasons is possible only if a person has a medical opinion regarding the subject's health, or rather physical impairments and incapacity. Termination of the contract can be made both by the employer and the subordinate himself. The terms of termination in such cases are regulated by law and directly by the contract itself.

After being examined in a hospital and identifying a person with a disease that affects his future work activity, he must be sent to special organizations that conduct a detailed examination.

These include:

1. CEC (clinical expert commission).

This structure diagnoses the state of health of the subject, after which it issues a certificate to him, which entitles the person to extend the treatment throughout the year. You cannot use this document to obtain a disability group or terminate an employment contract. The commission can indicate the diagnosis only after the agreement of the patient who applied.

1. MSEK (medical and social expert commission).

This medical structure is aimed at protecting human rights regarding the receipt of social, medical and material assistance for further work or full provision from the state. After passing the examination and additional examination, confirming the presence of a chronic disease that affects the ability to work, a person is assigned a disability.

The conclusion of the examination must be approved by the signatures and seals of medical workers. This document has legal force, and therefore neither the employer nor government agencies have the right to ignore it.

Important! A certificate from MSEC may affect the terms of termination of the contract and, in particular, the calculation upon dismissal.

Classification of disability groups

Each type of disease affects some area of ​​human activity. Based on this, all types of violations of the physical condition of a person were divided by law into special groups. Each of them has its own rights and conditions for awarding social protection.

So, the cause of a complete or partial violation of legal capacity can be:

1. Common disorders caused by long-term chronic illness or injury.
2. Violations caused by the peculiarities of labor activity (unhealthy working conditions).
3. Injury acquired during working hours, etc.

The legislation establishes three groups of disability.

1. I group. This category of people is considered completely incompetent. The disease leads to such extensive dysfunction of the whole organism that a person becomes unable to take part in even the simplest types of labor activity.
2. II group. A person who has received this group is considered partially capable, and the disease may be temporary in such cases.
3. III group. Diseases belonging to this group do not deprive a person of legal capacity, but require easier work or the creation of special conditions.

Attention! Dismissal for medical reasons can be made only on the basis of the first group; for all subsequent ones, the employer is obliged to offer easier conditions or another vacancy.

For each type of disease and disability group, the law provides for various benefits, allowances, pensions, and most importantly, special working conditions. At the end of the document, the patient needs to re-pass the examination and confirm the group or change it.

Transfer to a vacant position

Dismissal due to illness occurs after the management is presented with the conclusion of the commission on the state of health of the subject, or rather that he has completely lost his legal capacity.

Temporary or partial disability is not a legal basis for dismissal, in such situations, the manager can take the following steps:

1. Create special, easier working conditions, change the schedule and tasks set in the contract.
2. Offer the subordinate another vacancy suitable for the state of health that the employee currently has.
3. To create a special commission, thanks to which the state of the subject will be confirmed, after which an act will be drawn up and a decree will be issued to transfer him to another vacancy.

Important! If the proposed job with easier working conditions does not suit the employee, then he has the right to refuse the position, after which the employment contract will be terminated.

If there are several options among the available jobs, then the employee has the right to independently choose the position that suits him. Notification of a transfer to another vacancy and an offer of another job is made in writing. The document must be drawn up in two copies.

One, with the signature of the subordinate, remains with the director, and the second is transferred to the employee.
If the employee refuses to sign the notification received, then the created commission records the refusal in the act, after which, on the basis of this document, the dismissal is made.

Rights and obligations of an employee

A person who has lost the ability to perform the tasks and duties specified in the employment contract has the legal right to quit on his own initiative, while not working out the required two weeks.

To do this, you need to write a letter of resignation and attach a medical certificate confirming the diagnosis to it.

The subordinate also has the right to demand to provide him with easier working conditions or to offer another position. For this, an application is also drawn up describing a request for a transfer to another vacancy or a change in working conditions.

Important! The job offered may not match the qualifications of the employee, and the pay may be less than what was in the previous position.

The right to move to another position, stay at your workplace or quit is assigned to a subordinate. Mandatory termination of an existing contract or an order to transfer a person to another position is prohibited by law.

The subordinate also has the right to refuse to take his job and move to another position. In this case, the manager may suspend his employee for the period specified in the medical report. If such deadlines are not established by the decision of the commission, then dismissal is carried out on the basis of Article 77 of the Labor Code of the Russian Federation.

Attention! Payments upon dismissal for health reasons depend on the circumstances under which the disease was acquired, and also under which of the articles the employment contract is terminated.

Concealment of any information about the state of health, emerging diseases is strictly prohibited. If any incident occurs with an employee due to withheld information, the company is not responsible for the consequences and is not obliged to pay compensation.

The issued health certificate must be provided to the management of the enterprise no later than within three days.

Rights and obligations of the employer

Further actions of the company's management directly depend on what is indicated in the conclusion of the medical commission. As a rule, such a document contains recommendations regarding the further organization of labor activity, namely, facilitating work in an already occupied place, transferring to another vacancy, or terminating further cooperation.

The second factor influencing the development of events is the wishes of the employee. The manager can offer another position or advise to stop working, but he does not have the right to oblige his subordinate to make a decision.

A medical worker may also indicate a temporary cessation of employment for a period of up to 4 months. In such a situation, the employer is obliged to keep his subordinate's place until his recovery or general improvement in health.

Attention! After dismissal, a subordinate has the right to claim a number of social benefits for people with disabilities. They also include disability pensions.

As for funds, all payments are regulated on the basis of an employment contract and the Labor Code of the Russian Federation. In connection with voluntary redundancy or temporary termination of employment, the employer is not obliged to pay any additional benefits.

All the basics that are associated with dismissal for health reasons are spelled out in the following provisions of the Labor Code:

A “limited health condition” that prevents an employee from performing their duties is determined by the healthcare facility, not the employer.

Therefore, before dismissing an employee, the employer needs to familiarize himself with the medical report that the employee has lost his health. The reasons for such a loss can be, for example, trauma, chronic illness, harmful working conditions, etc.

There are 3 groups of disability in the Russian Federation, which differ in the severity of the disease, as well as the state of the employee's ability to work. This is:

1. Group I - non-working, in which there is a complete loss of ability to work. Dismissal is made without working off under paragraph 5 of Art. 83 of the Labor Code of the Russian Federation;
2. II group - partial ability to work. Dismissal is made in two cases: transfer to another position is impossible, because there are no relevant vacancies (clause 8 of article 77 of the Labor Code of the Russian Federation) and the employee’s refusal to transfer to a new position (clause 8 of article 77 of the Labor Code of the Russian Federation);
3. Group III - the availability of working capacity under certain working conditions.

IMPORTANT! The employer does not have the right to make personnel decisions without a medical opinion from the KEK or MSEK, because. such action is illegal in the Russian Federation.

In what cases can not be removed from office?

The employer does not have the right to dismiss employees in the following cases:

Regarding the last point, there are a number of features that the employer must comply with so that there are no consequences.

Step-by-step algorithm of actions

When dismissing an employee due to disability, the following procedure must be observed:

Medical examination

These are preventive measures., which help to identify violations of the health status of workers and medical contraindications to the implementation of work. The employer organizes and allocates funds for this event. The medical opinion is given by the institution with which the employer has concluded an agreement.

IMPORTANT! For this procedure, a health passport and a medical card of an outpatient client are issued.

Translation offer

The employer may offer positions that meet the requirements of the medical certificate. The application for transfer is made in writing., in duplicate. The transfer is carried out within the framework of one enterprise.

The act of refusal to familiarize with the proposed vacancies

In this case, an act of refusal is drawn up, which is part of the document flow of any organization. The document is free form, but must contain:

• date of drawing up the act;
• Name and position of the constituent;
• Name and position of the employee;
• Name and position of the witness;
• reason for refusal to familiarize with vacancies;
• painting on both sides.

If the employee does not agree with the action of the document

The document is drawn up by an employee of the personnel department when an employee refuses to be transferred to another position. The name of the company is written at the top of this document., the presence of 3 people is required, indicating their full names. It is noted that the administration of the organization offered to transfer to another vacancy (to whom, position, number), but the employee refused. Below - signatures, names and date.

Suspension order for a specified period

How to write this document correctly? For this, it is important to know that it contains the following items:

1. Name of the organization;
2. the word "ORDER";
3. date;
4. Full name position and term of suspension from work;
5. base;
6. Name, position and signature of the employer;
7. Full name and signatures of persons familiarized with the document.

Notice of termination of the employment contract

Drawing up such a notice is a mandatory procedure for any employer. Arranged randomly. Be sure to indicate the reason for the preparation, information about the persons between whom the contract was concluded. The document is signed by the employee of the personnel department and the dismissed employee.

It is drawn up in 2 copies: one is given to the employee, the second remains with the employer. This is proof of lawful action and helps prevent possible conflicts.

Order to terminate employment contract due to ill health

This document is in writing and contains the following main points:

Resignation for health reasons

This application is made by the employee in the event that he is not interested and does not intend to transfer to another vacancy(clause 8, part 1, article 77 of the Labor Code of the Russian Federation).

1. the word "Statement";

Entry in the workbook

It is important to make the following entries:

• record number;
• the date;
• the reason for the termination of the employment contract (link to the conclusion of the medical commission and clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
• two signatures: the employer and the resigning employee;
• registration data of the order - date and number;
• the signature of the leaders and the wet seal of the enterprise.

The picture shows a sample entry in the work book about dismissal for health reasons:

What payments are provided?

(Article 178 of the Labor Code of the Russian Federation).

If an employee used his vacation "in advance", then the amount of this amount is reduced. At the same time, it can be increased at the request of the manager for the achievements and contribution of the employee.

Responsibility of the employer for dismissal for health reasons without a conclusion medical commission.

Article 5.27 of the Code of Administrative Offenses

Attention! When dismissing for health reasons, it is important for both the employee and the employer to comply with all laws and procedures of this process so that there are no problems in the future.

There is no sample and specific actions in the Russian legislation when drawing up an application, but there are a number of points that are mandatory:

• appeal to the head of the company (full name and position);
• the word "Statement";
• a request for dismissal due to the deteriorating current state of health of the person, which does not allow him to work under the same conditions;
• a link to the conclusion of the MSC, which is attached to the application in the original version (the employee must keep a duplicate certified by a notary public);
• date, signature and transcript of the person submitting the application.

What should be reflected in the work book?

It is important to make the following entries:

What payments are provided?

When leaving for health reasons the employee must be paid an amount not exceeding the amount of two weeks' earnings(Article 178 of the Labor Code of the Russian Federation). If an employee used his vacation "in advance", then the amount of this amount is reduced. At the same time, it can be increased at the request of the manager for the achievements and contribution of the employee.

If an employee has “non-vacation leave”, then he can use it or receive material assistance.

Employer liability

Article 5.27 of the Code of Administrative Offenses provides for the liability of the employer if he dismisses the employee without the conclusion of a medical examination:

• administrative fine - from 1 to 5 thousand rubles;
• a fine of up to 5 thousand rubles. or suspension of activities for 90 days (for individual entrepreneurs who have not formalized their activities as a legal entity);
• a fine of 30-50 thousand rubles. for legal persons;
• disqualification for 1-3 years if the employer has already been subjected to a similar penalty.

When dismissed for health reasons, it is important for both the employee and the employer to comply with all laws and procedures for this process so that there are no problems in the future.

The Labor Code and other regulatory documents govern all issues of dismissal, payment of compensation, establishment of the required benefits and guarantees upon termination.

Grounds for sick leave

Termination of work for health reasons can be made for the following reasons:

1. If the health condition of the worker does not allow him to continue, and he refuses to be transferred to another job suitable for health reasons. When the employer cannot provide another job.
2. The employee is recognized by the ITU as completely incapable of work. The employment relationship with the employee is terminated only on the basis of a certificate of disability, or medical opinion medical commission on the compliance of the employee's health with the assigned work. The procedure for issuing a medical report is regulated by the order of the Ministry of Health and Social Development of the Russian Federation of May 2, 2012 No. 441n.

Dismissal due to illness in connection with the establishment of complete disability

The basis for dismissal is a certificate of disability with the note "Disabled" or Extract from the examination certificate. Certificate of incapacity for work with a group of disability and the date of its establishment. without a certificate, the ITU does not give the right to establish benefits and guarantees due to a disabled person. From this follows the conclusion:

• the above documents are required. After receiving the certificate, a termination order is issued in the form T-8. The date and wording of the dismissal are affixed in strict accordance with the Labor Code of the Russian Federation, with reference to paragraph 5ch1 of Article 83. The employee gets acquainted with the order against signature on the day of its publication. A full calculation is made, with the inclusion of all types of amounts due at the time of dismissal, a two-week average earnings.

In the list issued to the dismissed employee documents include:

1. order (at the written request of the employee);
2. The issuance of a certificate of two calendar years preceding the dismissal is mandatory (FZ No. 255-FZ of December 29, 2006);
3. Other documents necessary for the employee or their copies at the written request of the employee.

Dismissal under paragraph 8 of part one of Article 77 of the TKRF

The procedure for dismissal is the same as for the conclusion of complete disability. The difference is that at first all available vacancies suitable for health reasons are offered. Dismissal due to illness is carried out only as a last resort, when all the possibilities for providing the sick employee with the necessary work have been exhausted.

The offer of vacancies can be issued in the form of an order or notification, with which the employee gets acquainted with the signature. An employee's refusal to transfer must be made in writing. A convenient option would be to draw up an act. When the impossibility of providing work comes from the employer, the notice must be in writing, indicating the reasons.

Difficulties encountered during dismissal

In practice, dismissal due to illness, due to complete inability to work, often comes down to the correct determination of the date of termination of employment. for all types of dismissals (part 3 of article 84.1) determined the date of dismissal - the last day of work.

The termination of the employment relationship should be considered the day preceding the establishment of disability. It happens when an employee presents a certificate some time after the examination. If the employee continued to work after the establishment of disability, then the day will be the date of presentation of the ITU certificate.

To avoid negative consequences, it is recommended reflect the date of provision of the certificate with an act that is attached to the order. Disputes of a complex nature arise when other work is provided or denied. In such cases, you can contact a specialist for advice.