The relationship between the employer and the employee does not always work out well. There are situations when the only way to avoid conflict is to quit. It can be initiated by both the employee and the employer.
In the first case, everything is quite simple. According to general rules, the employee writes a statement, fulfills 2 weeks and leaves the company. As for the dismissal of the employee at the initiative of the employer , there are many subtleties. Further in the article we will try to deal with them.
Why can they get fired?
The reasons for the dismissal of the employee on the initiative of the employer are many. Meanwhile, any action related to the termination of the contract must be justified and documented.
The main reasons for the dismissal of an employee on the initiative of the employer can be considered:
- Unsatisfactory results of certification.
- Failure of employees to perform their duties properly, careless attitude to work. It is worth saying that in this case, the dismissal of an employee on the initiative of the employer is allowed only after a series of measures. In particular, the employer is obliged to warn the employee about the inadmissibility of such behavior in writing, to apply other disciplinary sanctions. If all these measures fail, then dismissal follows.
- Employee committing actions causing damage to the enterprise. It is, in particular, the disclosure of information protected by law, theft, etc. In all these cases, there must be evidence of employee guilt.
- Committing an immoral act incompatible with the position held. For example, dismissal threatens a teacher who degrades students.
- The appearance at the enterprise in a drunken state.
- Providing deliberately fake documents when applying for a job.
- Liquidation of the enterprise (termination of IP), staff reduction.
If the organization changes its owner, then you can fire the accountant and director. The remaining employees must remain at work, unless, of course, there are other grounds for dismissal. At the initiative of the employer, the contract with the employee is terminated only in extreme cases. Moreover, in some situations, dismissal is a right, and in others it is the employer's duty.
The nuances of the process
In the TC, the requirements are fixed for the employer who wants to part with an employee.
When an employee is dismissed at the initiative of the employer, the latter is obliged to notify the employee in writing of upcoming events. The notice should reflect the reasons for making such a decision with reference to the norms of labor legislation.
The employee, in turn, can prevent dismissal. His actions will depend on the nature of the reasons why the contract is terminated with him. In many cases, in practice, the parties manage to resolve the conflict. In such situations, you can contact the labor inspectorate, whose representatives will assist in the settlement of the dispute. If the employer and the employee did not manage to come to a consensus, it is better to terminate the contract.
Guilty Offenses
The dismissal of an employee at the initiative of the employer may be due to unlawful actions of the employee. Among the main violations are the following:
- Systematic lateness, absenteeism.
- Refusal to comply with the rules of the company.
- Failure to comply with the requirements for medical examination, training in safety rules, evasion of certification, if these procedures are mandatory for the employee.
- Disclosure of information classified by law as commercial, official or other secret.
- Violation of TB rules if this entails serious consequences or the threat of their occurrence.
Certification
In the course of its passage, the correspondence of the competence of the person to the position that he occupies is determined. The law establishes the certification test procedure. The procedure includes:
- Approval of the Regulation on certification. It describes the conditions, the frequency of the procedure, the evaluation criteria, the composition of the commission, the rules for drawing up a report.
- The publication of the certification order. It should indicate the time and place of the meeting, information about the certified employees.
- The formation of the commission.
- Passing test staff.
- Making a conclusion. In it, the commission formulates conclusions on the suitability of each employee.
If in the course of certification an insufficient qualification of an employee is revealed, the manager can send him to training or dismiss him. In any case, with a negative conclusion of the commission, a citizen cannot continue to work in the same position.
Employee committing a crime
The dismissal of an employee at the initiative of the employer only because prosecution is being conducted against the employee is not allowed. The presumption of innocence is valid in the Russian Federation. Until the person's guilt is proved, he is considered not involved in the act. Even a detained citizen continues to be on staff. However, it should be noted that during this period the employee is not at the enterprise and does not fulfill his duties. Accordingly, earnings are not accrued to him.
If the employee is convicted, termination of the contract with him is carried out solely on the basis of a court decision in accordance with Article 81 of the Labor Code . The dismissal of an employee on the initiative of the employer in this case may be caused by the loss of confidence or the commission of an immoral act.
Medical contraindications
If they exist, the manager must either terminate the contract or offer the employee other activities that he can carry out without harming his health. Corresponding rules are fixed by the Labor Code of the Russian Federation.
The dismissal of an employee on the initiative of the employer in these cases is possible only after the head has offered the employee all the vacancies available to him in this area. The tenant must offer positions in another territory, if this is provided for by a collective agreement or an employment agreement.
The presence of contraindications should be confirmed by the conclusion of a medical commission. For some categories of employees, a physical examination is mandatory. To them, for example, include catering staff, teachers, health workers. It is during the examinations that possible contraindications are revealed. If a citizen evades compulsory medical examination, he may be fired.
Circumstances beyond the control of the parties
The termination of the contract may be due to the following reasons:
- Conscription into the army, the implementation of activities related to the passage of alternative service.
- Reinstatement at the place occupied by an employee of a citizen previously dismissed but reinstated in the state by decision of the labor inspectorate or court.
- The expiration of the contract.
- The death of an employee or his recognition as missing.
- Extraordinary circumstances that create obstacles to further employment.
- Lack of access to information constituting a secret protected by law.
- Recognition of the decision of the labor inspectorate or court on reinstatement of a person at work invalid.
Termination of a contract with a part-time
Dismissal on the initiative of the employer of an employee combining positions may be associated with the return to work of the main employee. For example, a citizen was on long-term treatment or on a business trip.
The procedure for dismissing an employee at the initiative of the employer in such cases is similar to the rules applicable to other general cases. The only nuance that should be mentioned concerns the entry in the work book. If the combination took place at different enterprises, the information in this document is indicated by an employee of the personnel department of the enterprise, which is the main place of work of the person.
Step-by-step instructions for dismissing an employee on the initiative of the employer
The stages of the procedure may be adjusted depending on the circumstances causing the termination of the contract. In case of violation by the employer, a step-by-step instruction on dismissing an employee at the initiative of the employer includes:
- Fixing information about the violation.
- Clarification of circumstances.
- Application of measures.
At each stage, relevant documents are compiled. It must be said that, in accordance with the Labor Code, the dismissal of an employee on the initiative of the employer is allowed no later than 6 months. from the date the employee committed the misconduct.
Fixing violation
When identifying the fact that an employee committed an illegal act, it is advisable to immediately form a commission that will deal with the study of all circumstances. There are several ways to record a violation. Most often this is done by compiling:
- Act of violation. This document must be executed in the presence of at least 2 witnesses.
- Memo note. It can be written by a colleague or the immediate superior of the employee.
- Commission findings. As a rule, this option is used for serious violations.
Familiarization of the employee with documents
When the commission confirms the guilt of the employee, one copy of the report is provided to him for review. At the same time, after reading the contents of the document, he must sign. The employee has the right to refuse this. In this case, an act is drawn up.
After reviewing the claims, the employee is given 2 days to respond. Simply put, he needs to write an explanatory note. The employee may refuse to explain their actions. Then it is also necessary to draw up an act. In practice, in such cases, as a rule, the employee is fired. At the initiative of the employer , a special commission may be convened, which includes representatives of the labor inspectorate and the union. At a joint meeting, they decide on the situation.
If after 2 days no explanation has been received from the employee, the employer has the right to terminate the contract with the employee unilaterally.
Order
Only on its basis, according to the Labor Code of the Russian Federation, is an employee fired. On the initiative of the employer or on their own, this happens - it does not matter. Always termination of the contract is preceded by the issuance of an order.
The corresponding order is drawn up after the manager has studied all the circumstances and materials collected during the audit. It is advisable to attach copies of documents related to the incident to the order.
After signing, the dismissed employee must be acquainted with the order against signature. Three days are allotted to this legislation. If the employee refuses to sign or is absent from the enterprise, an act is drawn up or the corresponding record is placed directly on the order.
Labor entry
The fact of dismissal is noted in the work book on the same day on which the order was issued. The record must contain a link to a specific article and paragraph of the TC. The employee receives the workbook on the day the corresponding mark is entered.
Keep in mind that abbreviations are not allowed in the record.
If for some reason the employee cannot pick up the labor, he is sent a notice of the need to come to the company or give consent to send the document by mail.
Exceptions to the Rules
The legislation provides for guarantees for a number of categories of employees. They are not subject to general rules, including those regulating the procedure for dismissal at the initiative of the employer. An employee cannot be fired if:
- He has a young child (children) under the age of 1.5 years. Moreover, this rule applies to both mothers and fathers.
- He alone brings up a child under 14 years old.
- He is dependent on a minor disabled person.
You can not dismiss a pregnant woman.
These prohibitions, however, do not apply to:
- The termination of the enterprise activities.
- Repeated violation by the employee of the rules established in the organization (improper performance of duties, absenteeism, etc.).
- Identification of theft.
- Disclosure of information constituting a secret (commercial, banking, etc.).
- Committing an immoral act.
- Providing forged documents when hiring.
Dismissal of an employee at the initiative of the employer: compensation and mandatory payments
According to the norms, the employer on the day of termination of the contract must make a full calculation of the amounts due to the employee. These include:
- Salary for days worked.
- Surcharge to salary.
- Compensation for unused vacation.
In cases provided for by law, severance pay is also paid.
If it is impossible to pay the funds due to the absence of a citizen at work, the sums due must be paid out no later than the next day after the presentation of the payment request.
Upon liquidation of the organization, the employee receives severance pay. Its calculation is based on the average monthly earnings. During the search for work, the employee also receives compensation. It is equal to the average monthly salary for 2 months. In exceptional cases, the employee may be saved during the third month.
Somewhat different conditions are provided for the chief accountant, director and his deputy. In the event of a change of ownership of the organization, the new owner, upon dismissal of these employees, pays them compensation amounting to the average monthly salary for 3 months.
If the contract is terminated due to a mismatch of the position or the presence of medical contraindications, the citizen receives compensation equal to two weeks of earnings.
The collective agreement may provide for higher amounts of payments.
It must be said that upon dismissal at the initiative of the employer of an employee of retirement age, he is also entitled to all payments and compensations. Additionally, the head of the enterprise can reward the employee for high professionalism.
Finally
Currently, it is rather difficult for an employer to terminate a contract with an employee unilaterally. The rules established by law must be observed.
It is worth saying that not only in Russia is such a complex order. Similar rules, for example, are enshrined in the legislation of the Republic of Belarus. The dismissal of an employee at the initiative of an employer in Belarus is also carried out in several stages. In addition to the Labor Code, Decree No. 29 of 1999 is in force in this country, providing for additional measures aimed at improving labor relations and strengthening executive discipline in enterprises and organizations.