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Stanislav Sazonov

What is the danger of layoffs?

When you fire an employee, there may be negative consequences for you as an employer.

1. Even if an employee is fired legally, but complains to the labor inspectorate, and when checking the correctness of the dismissal, errors are found in the preparation of employment documents (orders, work book, etc.), a fine will be imposed:

• for you as an individual entrepreneur - from 1000 to 5000 rubles; from 5,000 to 10 thousand rubles for the absence of an employment contract or for errors in it;

• for you as the director of an LLC (PJSC, CJSC, State Unitary Enterprise, Municipal Unitary Enterprise) - from 1000 to 5000 rubles; from 10 thousand to 20 thousand rubles for the absence of an employment contract or for errors in it;

• like you entity- from 30 thousand to 50 thousand rubles for errors in documents; from 50 thousand to 100 thousand rubles for the absence of an employment contract or for errors in it.

Moreover, fines can be imposed on the director of the company and on the company at the same time.

That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the lack of an employment contract: a 20 thousand fine for the director and 100 thousand rubles for the LLC.

2. If an employee is fired illegally, there may be a demand to reinstate him at work, pay wages for the period of forced absence, pay legal expenses and, as a rule, compensate for moral damages. Reinstatement is carried out only by court decision.

3. If the salary was paid “in an envelope” or the employee was not officially registered, he can file a complaint. If the information is confirmed and goes to tax service, Pension Fund and FSS, then you will be charged additional taxes, insurance premiums and will also be fined.

Let's look at how to avoid the second situation.

Dismissal: 80% psychology and 20% law

How to gently push an employee to voluntarily terminate an employment contract? On dismissal, in addition to legal nuances, there are also psychological ones. And sometimes psychological ones even take priority.

Due to various circumstances, a person may begin to do his job poorly. You can give him a warning, talk to him, but if nothing changes, then you need to fire him.

As practice shows, if your employment contract clearly states the responsibilities of an employee, but he clearly cannot cope with them (for example, a sales manager does not fulfill the plan, violates the technology of working with clients - he takes a long time to approve invoices, violates sales stages, negotiates with the wrong those persons), then there are no disputes and conflicts.

The most important thing here is that everything is clearly spelled out in the employment contract and that you discuss everything in advance before signing it.

It is understatement and unrealistic expectations that are the main causes of conflicts.

The employer thinks: “It seemed to me that everything was great, he understood everything, he will work the way I need. But he ruins deals, doesn’t know how to communicate with clients, doesn’t remember who called, doesn’t write down contacts, says “Hello” on the phone, but should say: “ABV Company, Ivan Ivanov, good afternoon”... Well, my goodness!”

The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, that I would work 24 hours a day, four hours a day, but in reality I only got 30 thousand rubles, and I had to work seven days a week and 10 hours a day...”.

The conditions must be stated without embellishment, but as they are. Many employers like to embellish or say on controversial issues: “Start working, then we’ll figure it out.” And then it’s too late to figure it out.

If there are no differences in expectations, then there is no conflict, which means there are no problems with dismissal.

How can you discuss the terms with the employee before signing the contract?

“I’m taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell 200 thousand rubles. In the second – for 350 thousand rubles. In the third - by 400 thousand rubles.

If you can’t reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need that. Do you agree? If you agree, then let's go."

These are examples from real practice. As a rule, in such cases, a person admits that he cannot cope, and, albeit with regret, leaves. And then he doesn’t do any mischief, doesn’t run around to labor inspectorates and courts demanding to check you and force you to pay extra wages or reinstate him at work.

However, there are also workers who are always offended and believe that they are still owed money. Yes, and those who left on good terms may be “overwhelmed” because, for example, at home the husband or wife will psychologically provoke them to demand something from you.

In an attempt to “grab” at least something, they often try to challenge the dismissal in court, so it is vital for you to know how to dismiss an employee as painlessly as possible and without further consequences in the case of the courts.

Since the court most often sides with the employee (in Russia, for government agencies the employer is always a greedy bourgeois oppressor who is obviously wrong), the most win-win and safest option would be dismissal on the initiative of the employee, since here either no dispute can arise at all, or he himself will have to prove that he did not want to quit.

If the employer decides to fire, he himself will have to prove in court the legality of the dismissal.

This is directly stated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, which explains that when considering a case on reinstatement of an employee, employment contract terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer.

All practical examples I would roughly divide the dismissals into two groups.

1. Dismissal of an employee on his own initiative or with his consent. This:

• dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);

• dismissal due to at will(Clause 3, Part 1, Article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee if he disagrees (we will consider only those grounds that are a measure of disciplinary liability, that is, punishment for the employee’s incompetence). This:

• dismissal in the event of repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal in the event of a one-time gross violation of labor duties by an employee (absenteeism, appearance in a state of intoxication, disclosure of secrets protected by law, theft at the place of work, violation of labor protection requirements) (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation);

• This also includes dismissal during a probationary period if the test result is unsatisfactory (Article 71 of the Labor Code of the Russian Federation).

Termination of an employment contract (dismissal) is recognized as legal only if two conditions are met:

• the grounds for dismissal are expressly provided for by the Labor Code;

• the procedure for dismissal on this basis has been followed.

5 safe ways to fire a negligent employee

The first and best way: dismissal by agreement of the parties

Firstly, unlike voluntary dismissal, in which an employee can withdraw his resignation letter, an employee who has signed a document terminating the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be challenged.

Secondly, by agreement of the parties, you can terminate any employment contract (fixed-term or for an indefinite period) with any persons and at any time (there is no obligation to warn in advance).

Despite the fact that the contract is terminated by mutual consent, either the employee or the employer must take the initiative. If the dismissal occurs at the request of the employee, he can write something like the following statement: “I ask you to terminate the employment contract on the basis of clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties from October 15, 2017”. Date and signature.

The article and the basis itself must be clarified, otherwise this can be interpreted as a statement of one’s own free will, and it has its own “surprises” (more on them below).

If you take the initiative to terminate the employment contract, you can write this:

LLC "ABV" represented by general director Ivanova I. I. invites you to enter into an agreement to terminate the employment contract on May 15, 2016 on the basis of paragraph 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties. I ask you to notify us of your consent or refusal to accept this proposal in writing within two days. Date of. Signature. Seal".

The agreement must be drawn up in writing. The Labor Code does not provide for any forms of such an agreement. So you can take this example:

The second method is also good: voluntary dismissal

Article 80 of the Labor Code of the Russian Federation: “An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.”

Everything is simple here - the employee writes you a statement that he wants to resign of his own free will.

Main disadvantage:

Article 80 of the Labor Code of the Russian Federation: “Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws the conclusion of an employment contract cannot be refused.”

However, you can conclude an agreement on dismissal “on your own” even before the expiration of two weeks.

Also sometimes for better motivation upon dismissal of one's own free will, they offer to write a good reference.

If suddenly an employee says that he was forced to write a statement “on his own,” then he must prove this in court (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It's nice that a non-entrepreneur will have to justify himself. This is important in such matters.

Third method: dismissal of an employee who fails the test

The possibility of dismissal if the test result is unsatisfactory is provided for in Art. 71 Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

Basic Rules probationary period:

• if the test result is unsatisfactory, you can dismiss the employee before the expiration of the test period by warning in writing, no later than three days in advance, indicating the reasons;
• The test cannot be administered to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, employment testing is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who have graduated from state accreditation educational institutions of primary, secondary and higher vocational education and those entering work for the first time in their specialty within one year from the date of graduation educational institution;
• if the employment contract does not contain a probationary clause, it means that the employee was hired without a trial;
• the probationary period cannot exceed three months;
• If the test period has expired and the employee continues to work, then he is considered to have passed the test, and he will have to be dismissed on general grounds.

How to properly fire someone

1. Non-standard option.

It is possible to replace dismissal on the basis of an unsatisfactory result of the test for dismissal of the employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article states that if during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

In most cases, such a situation is resolved peacefully: the employee is informed that he is not suitable to perform the work for the position for which he was hired, that is, he did not pass the probationary period. He understands this and quits of his own free will. The question is settled: the employer has achieved his goal, and the employee does not have a “bad” record work book.

2. Standard option.

It is necessary to establish a probationary period in the employment contract, including:

• comply with prohibitions regarding probation;
• comply with the testing period.

This issue was written above in the basic rules of the probationary period.

During the test, it is necessary to draw up official (report) notes on the work, as well as other documents indicating that the employee does not pass the test. Or document the test procedure and show that it was violated.

Make a written decision stating that the employee failed the test. Correctly calculate the period for warning the employee about an unsatisfactory test result.

Warn the employee in writing about the unsatisfactory test result no later than three days in advance, indicating the reasons (Part 1, Article 71 of the Labor Code of the Russian Federation). Dismiss upon expiration of the warning period under Art. 71 Labor Code of the Russian Federation in in the prescribed manner(Article 84.1 and Article 140 of the Labor Code of the Russian Federation).

Fourth method: dismissal in the event of a one-time gross violation of labor duties by an employee

You can be fired for the following one-time gross violation employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):

• absenteeism;
• showing up at work while intoxicated;
• disclosure of secrets protected by law that became known to the employee in connection with the performance of his job duties;
• committing theft or embezzlement at the place of work, established by a verdict or court order that has entered into legal force;
• violation of labor protection requirements that resulted in serious consequences (industrial accident, accident, catastrophe) or created a real threat of such consequences;
• the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
• committed by an employee performing educational functions, an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

As is obvious from the word “one-time”, you can be fired if these actions are performed at least once.

Since in these cases the basis for dismissal is disciplinary violations, when applying dismissal as a disciplinary measure, it is necessary to thoroughly follow the procedure for imposing a disciplinary sanction established by Art. 193 Labor Code of the Russian Federation.

How to properly fire someone

The procedure for imposing a penalty is specified in Article 193.

It is necessary to record the offense either in documents, or in the form of a memo, or in the form of an act (preferably with witnesses). You will have to prove it later, so try your best.

Before applying disciplinary action, the employer must request a written explanation from the employee. Explanations are provided in the corresponding note.

The explanatory note must have a title starting with the preposition “o” (“about”), followed by the subject of the explanation.

Explanatory note write on a regular piece of paper indicating:

• employer's name;
• type of document;
• dates;
• signature of the compiler.

If the employee refuses to write an explanatory note, then an act of refusal to give explanations is drawn up. It is better to sign the act by several persons (the more, the better).

The employee is asked to sign the document. If he refuses to sign the act, an entry about this is made in the act - and everyone signs under it again. By the way, no one forbids capturing the fact of refusal on a mobile phone camera.

No later than one month from the moment the offense was committed, an order to impose a disciplinary sanction and dismissal is issued.

Dismissal on these grounds is permitted 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 comply with the procedure for taking into account the opinion of the representative body of the employee (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Fifth method: dismissal in the event of repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction

As is obvious from the word “repeated”, you can be fired if these actions are performed more than once.

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 work specified in this agreement labor function, comply with the internal rules in force in the organization labor regulations(Article 56 of the Labor Code of the Russian Federation);
• refusal or evasion without good reason from a medical examination of workers in certain professions, as well as an employee’s refusal to undergo medical examination work time special training and passing exams on labor protection, safety regulations and operating rules, if this is prerequisite permission to work.

When using this basis for parting with an employee, you must pay attention to the explanations given in paragraphs 33–35 of the Plenum Resolution Supreme Court RF dated March 17, 2004 No. 2 “On the application by courts Russian Federation Labor Code Russian Federation".

Thus, courts, when considering disputes, must take into account that failure by an employee to fulfill duties without good reason is understood as failure to fulfill labor duties or improper performance through the fault of the employee of assigned labor duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions , regulations, orders of the employer, technical rules etc).

The employee must be caught failing to fulfill his work duties without good reason, that is, committing a disciplinary offense. At the same time, on of this employee a disciplinary sanction must be imposed, which must not be lifted by the time a new offense is committed.

How to properly fire someone

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary liability. The procedure is established in Article 193 of the Labor Code of the Russian Federation and was described above.

2. Identify a new violation. Check the procedure for bringing to disciplinary liability in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (recording the fact of a violation, requesting an explanation, drawing up an act of refusal to provide an explanation after a two-day period, and so on).

Write

Do you know the feeling that you can no longer cope with your work, you give up, your former enthusiasm is gone? Our expert believes that you should not immediately think about quitting or torment yourself with thoughts of worthlessness. Any problem can be analyzed and the reasons can be understood. And armed with a clear understanding, you can control what happens.

What might cause an employee to feel like they are no longer doing their job? The reasons may be related to changes at work or personal. Of the “working” reasons, most often this result is caused by a lack of information, misunderstanding of work technology, falling out of the work process (for example, as a result of introduced innovations), an increase in the number of requirements, the introduction of additional functional responsibilities. Or the cause of so-called emotional burnout may be personal difficulties not related to work.

If you feel like you can't cope with your work, try to analyze the reasons. You may need to upgrade your skills or review your job responsibilities. IN Russian companies is the norm that job responsibilities are not clearly described, and often their number is increasing and increasing. It is also obvious that a newcomer coming to work may well not be realistic about his resources. After all, it is almost impossible to comprehend the amount of work in theory. And only over time can an employee, having tested his strength in practice, evaluate whether he can cope with the promised amount of work.

Often such difficulties are identified during the certification process - then the employee has the opportunity to discuss the current situation in an open format. If your company does not hold such events, schedule your day hour by hour yourself, evaluate where your time is spent, how functionally it is distributed. A schedule like this is called a “working day photograph.”

You can consult with friends or colleagues about whether it is possible to do something else besides what fits into your working day. With a written work schedule, you can approach management and discuss if you think it is physically impossible to fit more work into the given hours.

There are other ways to analyze why you stopped coping with your job: compare your workday and workload with the workload of a person in a similar position, compare his achievements and yours. This often helps you understand what your difficulties are in performing your job responsibilities.

Our expert believes that fatigue and loss of motivation are a problem not only for the employee, but also for the boss. After all, the manager is interested in the efficiency of the company’s employees and the preservation of the team. Think carefully about what you would like to talk about in advance and come with a specific question. For example, if the company’s motivation system has changed, if the bar for an employee’s capabilities has been set too high, then hushing up these problems is a direct road to dismissal. Perhaps some problems can be resolved through conversation. You can usually see when an employee really does a lot of work and does not waste time - in this case, it is beneficial for the manager to change something in your work process so as not to lose a valuable employee.

It is best to approach the manager with a proposal. For example, the situation can be formulated as follows: “I like working in the company. And I would like to continue working here. Let's try to redistribute my job responsibilities so that they can be performed by one person.”

If personal difficulties arise, this is also worth talking about. After all, the manager in any case sees that the quality of your work has changed. The reasons are unknown to him - in this case, the boss may think that you have decided to quit or are looking for another job. In situations of personal problems, solutions can be discussed - adjusting the work schedule, reducing employment, or the opportunity to do part of the work at home. But you should remember that if you come up with such a request at the height of the working season, then the conversation should be planned to the smallest detail.

08.05.2014 84079

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself - nerves and time. But why sometimes, knowing that a break in relations is inevitable, do we postpone the decision for months?

The dismissal process can be divided into three stages: making a decision to dismiss, informing the employee, legal registration dismissals.

Decision-making

The decision to dismiss arises in the head of the manager at first unconsciously, implicitly and matures for some time. As a rule, from the moment the thought appears that an individual employee has no place in the company or department, months pass until the decision is made. Often managers delay dismissal because they are not ready to say it out loud. The most common reasons for such delay can be identified.

• “If I admit the need for dismissal, I actually admit that I made a mistake when I conducted the interview, I didn’t see it, I didn’t recognize it, I taught the wrong thing, I didn’t pay enough attention.”
• “I feel sorry for dismissing him; he has a difficult financial situation.”
• “It’s so frustrating to report this. I hope the situation will resolve itself."
• “Staffing problem! I’ll fire this one, but where is the guarantee that the next one will be better? Who will work?

All these reasons are a sign of excessive softness of the leader. By delaying making a decision, you deprive your business of efficiency and face the fact of lost profits due to the fault of a careless employee.

Managers sometimes believe that it is better to have a bad employee than none at all. The directors say: “I can’t get rid of this employee now, because the rest will have to work even more, there are not enough people.” Of course, you need to choose a convenient moment to quit. But there will never be enough time, staffing, and there will always be a reason to say to yourself: “I don’t have time to interview candidates right now” or “Maybe he’ll come to his senses.” If bad employees do not want to improve, they need to be fired.

Perhaps right now there is a person working on your team whom you want to get rid of, but are delaying making a decision. Analyze the employee’s behavior by refuting or agreeing with the following statements:

1. The employee takes a lot of time, energy, money, and his performance does not improve. He does not (does not want to, cannot) fulfill the tasks assigned to him.
2. The employee shows disrespect for you and the team (customers, if the position involves communicating with clients).
3. Personally, you are uncomfortable working with this person; he is unpleasant to you.
4. The employee is disloyal to the company and does not share its values ​​and principles.
5. The employee is conflict-prone and regularly creates difficult situations.

If the answers are ambiguous, then give the person another chance. Give him the opportunity to improve certain deadlines. If you agreed with 4 statements, decide to break up right now and set a date for the final conversation.

Informing an employee about dismissal

Often in the final conversation, the manager lists what the person did badly and gives negative examples. In such words lies an attempt to prove to both oneself and the employee that he really does not correspond to the position he holds. This is a serious mistake. When you voice mistakes or shortcomings, be prepared for the person to defend himself - this is a natural reaction. He may not show his resentment, but when he goes outside the office, at every opportunity he will talk about your disadvantages and the problems of the company. Your task is to conduct the conversation so that the employee does not leave embittered and does not discredit the name of the organization.

The dismissal procedure should be an additional reason for feedback and is carried out according to the “plus-minus-plus” formula. Start a conversation with a list positive qualities employee, based on which you once hired him. Then explain why you are unhappy and what caused the dismissal. Finishing the conversation, once again highlight a few advantages that, in your opinion, are his strengths and will be useful to him new job. Any person has the right to understand why they want to break up with him.

When conducting the final conversation, it is better to be guided by the following rules. Talk to the person being fired personally and privately, be attentive and polite, but do not sympathize. Stay correct: voice only facts, not emotions. Give the employee the opportunity to speak, do not agree or challenge his words, just listen. Speak firmly, because the decision has already been made. End the conversation on a positive note - every person has something to praise for.

Legal registration of dismissal

It is important to fire an employee legally and without consequences. The Labor Code offers us several options; let’s look at the most common ones.

Classic option - at your own request(Clause 3 of Article 77 of the Labor Code of the Russian Federation). This method is the simplest for both parties: the manager invites the employee to write a letter of resignation in his own hand, the employee agrees. If he refuses to write a statement of his own free will, then you can sympathize with the manager, since he will have to try to force the employee to do it. Each remark must be accompanied by a reprimand and written documentation. When there is a sufficient amount of documentary evidence of the employee’s failure to fulfill his duties, you can talk again with the employee and invite him to voluntarily write a statement in order to avoid dismissal under the article. Most likely, after reviewing the documents and talking with you, the employee will write a letter of resignation of his own free will.

You can go the other way, namely, change the employee’s working conditions: transfer his clients and part of his powers to another employee, do not raise wages, deprive the bonus. In this case, everything depends on the personality of the leader and his moral principles.

But these methods have their drawbacks - they incite war and affect relationships within the team as a whole. Angry, the fired employee may contact tax office, to court, to your competitors or to all at the same time, turning your existence into a nightmare.

Another way to break up - termination of a trade agreement by agreement of the parties(clause 1, part 1, article 77 of the Labor Code of the Russian Federation). This method is convenient to use when both sides are set to break labor relations. In this case, the date of dismissal is selected taking into account their mutual interests, for example, when a replacement for the employee is selected or when he finds a new job. If it is legally correct to formalize the termination of an employment contract by agreement of the parties, then it is necessary to conclude a termination agreement, which must stipulate the date and conditions of termination. IN real life The parties agree on the terms of departure orally, and when the agreed date arrives, the employee writes a letter of resignation, and the entry in the work book is made on the basis of paragraph 3 of Article 77 of the Labor Code, that is, “at his own request.”

Opportunity dismissal due to failure to complete the probationary period must be provided in advance. The probationary period usually lasts up to three months, and during this period the employment contract can be terminated at any time. Please note that the probationary clause must be included in the employment contract and, preferably, in the order and application for employment. Otherwise, the employee is considered hired without a probationary period, and he cannot be fired on the basis of failure to pass the test. If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the test subject early by warning him in writing no later than three days before the date of termination, indicating the reasons that served as the basis for recognizing the employee as having failed the test. In this case, it is advisable to confirm the reasons with written evidence.

Termination of a fixed-term employment contract passes easily and simply after the expiration of the contract. In this case, the employer is not required to provide any justification for his decision. The only condition is that the employee must be notified of this in writing no later than three days before dismissal.

Dismissal based on certification results- a risky step, since in 90% of cases the court decision is made in favor of the employee, regardless of how well the employer’s documents are drawn up. If an employee cannot cope with his job responsibilities, then he can be dismissed based on the results of certification (in accordance with subparagraph “b” of paragraph 3 of Article 81 of the Labor Code of the Russian Federation). The company must have a Regulation on Certification, as well as an approved certification schedule or order, which is created immediately before the certification. The employee must be familiarized with all these documents in advance against signature. It is better for the head of the company not to be a member certification commission, since then the employee will not have the opportunity to file a complaint about disagreement with the results, which are issued in a separate order. If the results of the certification are unsatisfactory, it is necessary to give the employee time to correct it and re-certify him. If the results of re-certification are unsatisfactory, it is better to offer the employee another job, and if he refuses, you can safely fire him. Most often, such dismissal involves a conflict between the company and the person, and therefore this measure should be used only in extreme cases. If before the certification the employee did not have written comments or complaints from colleagues, then such dismissal is easily challenged in court, and in most cases the judge takes the side of the former employee.

If an employee is systematically late, then he can be dismiss due to non-compliance with labor discipline(Clause 5 of Article 81 of the Labor Code of the Russian Federation). The most important thing in this case is the clause of the employment contract, which clearly states the start and end times of the working day. In addition, the time sheet must record the time of arrival at work. If an employee’s tardiness is chronic, it is necessary to draw up a report of tardiness, and then require a written explanation from the employee on the basis of Article 193 of the Labor Code of the Russian Federation. If the employee does not want to write an explanatory note, he should draw up a statement of refusal and get the signatures of three other employees on it. If there are three written comments, you can issue a reprimand, after which you can safely dismiss such an employee. I would like to emphasize that if you want to fire an employee under an article, it is important to carefully prepare written documents(memos, comments, orders) so that in case of a legal dispute you have strong evidence.

Despite the abundance of ways to part ways with an employee, the best is voluntary dismissal. Try to do everything possible to ensure that the employment contract is terminated precisely on this basis, regardless of the presence or absence of a conflict with the employee. The main thing for you is to avoid lawsuits that entail costs. In addition, there is a possibility that you will be forced to reinstate the employee during the trial. It is better not to bring the dismissal to trial and resolve the situation peacefully.

Sooner or later, any manager is faced with the need to part with an employee. A correctly and timely dismissal procedure will save the company money, and the boss himself – nerves...

Sofya Povzikova, head of the HR administration department at Coleman Services, continues to expand on the topic of dismissals at the initiative of the employer. Today we will talk about dismissals related to repeated failure to fulfill official duties by employees.

The specified basis is established by paragraph 5 of Article 81 of the Labor Code of the Russian Federation, but it must be used by thoroughly preparing personnel documentation on the one hand, and on the other hand, having a reserve of time, because on this basis, as a rule, it takes at least a month.

What is meant by failure to perform or poor performance of official duties?

Failure to fulfill labor duties is a violation of requirements labor legislation, functions specified in the employment contract, local regulations in force for the employer: PVTR, job description, orders from the management of the organization, technical rules for preparing documentation or using equipment, labor protection and safety requirements, etc.

Example: an employee works in a call center and his job description states the duty to “make 40 phone calls per work shift.” If an employee does not fulfill the specified norm during the day, this indicates poor performance of job duties. If during the day the employee for some reason did not make a single call at all (he invented a job for himself or found reasons to take time off from work), then this is a failure to fulfill his duties.

As can be seen from the example, one of the most important documents establishing requirements for the quality of job duties is another document that specifies the employee’s labor function.

Job description is not mandatory local normative act, but its presence and competent formulations help the employee, his immediate supervisor and specialists personnel service determine the quality of an employee’s work in controversial or conflict situations.

Very often, when drawing up a job description, streamlined formulations are used: “call customers” or “register customer orders.” Such vague responsibilities are not of a specific nature, which means that some other document is needed that establishes criteria for assessing the quality of work, and the employee must be familiar with it and sign it. Otherwise, the employer’s actions can be appealed, pointing out that the calls to clients were completed, but the employee was not informed that exactly 40 calls were needed.

What is meant by “repeated failure”?

In practice, there are very often cases when managers complain to HR specialists about the quality of work of line personnel. However, just as often, managers refuse to document the identified violations: a lot of documents need to be completed, and, as always, there is not enough time. The HR specialist must understand that verbal complaints from the manager cannot be considered as a failure to fulfill official duties. Therefore, “repeated failure to comply” means several documented disciplinary sanctions for various violations of various official duties.

It is impossible to impose a disciplinary sanction for the same violation, otherwise two penalties will be applied to the employee for one offense, which is unlawful (Part 5 of Article 193 of the Labor Code of the Russian Federation).

Let's return to our example: the employee can take the first disciplinary sanction (if there is documenting) receive for poor performance of official duties, the second, for example, for being late for work.

In 2004, the Plenum of the Supreme Court of the Russian Federation (paragraph 33 of Resolution No. 2 of March 17, 2004) decided: that dismissal the specified basis was legal and justified, two conditions must be simultaneously met:

the employee does not perform job duties without good reason;

the employee commits the violation repeatedly, that is, he already has at least one outstanding or outstanding disciplinary sanction in the form of a reprimand or reprimand.

What documents should I fill out to impose a disciplinary sanction on an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and his manager demands that the HR specialist announce to him. We discussed in detail the actions of the personnel officer when filing a disciplinary sanction in the article “Loss of Trust.”

Let's repeat some points:

1. It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memo should record:

• Full name of the employee;
• date and time of the violation. If the violation is detected after the end of the working day, this must also be indicated
• details of the violation itself and detection of the violation
• the manager's proposals on measures to influence the employee.

Indicative text of the memo for our example:

“On April 13, 2017, a call center specialist (full name) made 10 phone calls during a work shift from 9:00 to 18:00, in violation of the requirements of the job description. I became aware of this fact in the process of summing up the results of the working day. I propose to reprimand (full name).”

1. It is necessary to explain to the immediate supervisor that a reprimand can only be issued if there are written explanations from the employee about the reasons for failure to fulfill official duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for Explanation) and oral (when the manager verbally demands an explanation from the employee). I cannot advise my HR colleagues on the second option: if an employee appeals the employer’s actions, then without the appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

The request for explanations is usually prepared by HR specialists and issued to the employee, making sure to record the time the document was issued. The request is issued to the employee against signature. At the request of the employee, he may be given a copy of the Requirement.

1. After two working days, the employee must provide a written explanation. If an explanation is not provided, it is necessary to draw up a Certificate of Refusal to Provide Explanations. The act is announced to the employee in the presence of witnesses. The employee may sign that he has familiarized himself with the Act, or he may refuse to familiarize himself with it. In this case, the Act is read aloud to the employee.
2. Two received documents documenting the violation are submitted to the head of the organization (or other authorized person) for consideration to make a decision. The manager, taking into account the available facts, can decide on a penalty or on the absence of grounds for it, and can mitigate the punishment or toughen it. The manager reflects his decision in a resolution, which he writes on a memo.
3. Based on the decision of the head of the organization, the HR specialist prepares an Order to impose a disciplinary sanction on the employee.

The procedure for HR specialists may vary depending on the traditions of the organization, but two primary documents are required, because are the starting points for calculating deadlines.

Since we are talking about repeated violations, this procedure must be completed at least one more time.

There are two disciplinary sanctions. What's next?

So, the HR specialist has two orders to impose disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Certificates of refusal to familiarize themselves with documents were prepared and signed by witnesses.

If the next violation occurs, a third set of evidentiary documents is prepared and submitted to the head of the organization for decision. If the manager’s decision is dismissal, then it is necessary to prepare a dismissal order according to unified form T-8, or in the form established by the organization. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, then a corresponding entry is made directly on the order (Article 81, paragraph 5 of the Labor Code of the Russian Federation).

Thus, preparing for dismissal due to repeated failure to fulfill official duties by employees requires:

Availability of a job description (or detailed job responsibilities in the employment contract)

Willingness to complete a lot of documents quickly and accurately.

Time, because dismissal due to repeated failure to perform job duties by an employee takes about a month

Aida Ibragimova, director HR department KSK groups

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. It's about on the dismissal of an employee for repeated violation of his labor 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 an employee commits actions that are prohibited by an employment contract, job description, local regulation, order of the employer, labor legislation and other regulations containing provisions 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 in certain professions, as well as the refusal of an employee 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.

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. Needs to be completed following documents: order to terminate the employment contract, settlement note, work book, 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 found a large number of memos about her failure to fulfill her job 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 in the client’s company, personnel records were maintained with serious violations and many required documents were absent, as a result of which it was impossible to make 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 charges were filed against the employee. disciplinary sanctions, when she committed the third offense, a dismissal procedure followed under paragraph 5 of Art. 81 Labor Code of the Russian Federation. The employee asked to be given the opportunity to resign of her own free will, since she did not want such an entry in her work book. The employer met her halfway, and the employment contract was terminated.