Knowledge of labor law plays into the hands of not only employees. Some employers continue to pay salaries for years to subordinates whose activities are not particularly needed. And all because they don’t know how to fire people against their will.
The need to dismiss employees is faced by many managers. However, the current Labor Code of the Russian Federation stands guard over the interests and rights of workers. In order to dismiss a person from work without his will, it will take good arguments and a certain documentary procedure.
Why there is a need for dismissal
If an employee acts as opposed to the principles of the company, has the qualifications insufficient to carry out professional duties, or is completely lazy, avoiding work in every possible way, there is only one way out - to say goodbye to him. However, far from always negligent employees accept the boss’s offer to write a letter of resignation of their own free will and disperse peacefully. On the contrary, they begin to look for all kinds of ways to keep their jobs in spite of the discontent of the leadership. How to fire people in this case?
The Labor Code of the Russian Federation clearly spells out the grounds for holding the employer liable in case of illegal reduction. But the same legal act contains provisions that answer the question of how to fire a person under the article.
Disruption of labor relations at the initiative of the employee
This option is most preferable for any boss who is wondering how to fire a person. At will, each employee has to resign, regardless of the reasons and circumstances that compelled him to make this decision. The right of an employee to terminate an employment contract on his own initiative is specified in article 80 of the Labor Code of the Russian Federation.
Dismissal of one’s free will is a conflict-free method, convenient for both parties, especially for the employer, who, in the event of a break in the employment relationship at the initiative of the employee, is exempted from the need to pay monetary compensation to the latter.
As a general rule, an employee who wishes to resign is required to notify the employer in writing. An application for resignation of one 's own free will must be submitted 14 days before the date of actual termination of service. The two-week period is counted from the day after the registration of the appeal.
By agreement of the parties
How to fire a person and stay with him in a good relationship? Mutual agreement termination is another option that is beneficial to both parties. Thus, the dismissed employee will protect his work book from negative entries, and the manager will fence himself against any kind of claims.
Usually, before dismissing a person from work by agreement of the parties, the boss agrees with the employee about the amount of severance pay provided for in article 78 of the Labor Code of the Russian Federation. But even financial compensation does not always play a decisive role. Not every employee is ready to give up easily and calmly leave. If the subordinate does not want to compromise, the employer has to look for another way to dismiss the person correctly, without the risk of legal proceedings and scandals.
Even if an unwanted employee is set up to fight his superiors and is ready to stay in his workplace by any means, it’s worth trying to come to an agreement with him peacefully. Before looking for legal grounds for dismissal, which may leave a mark on a person’s future career, you just need to talk to him and try to find out about the causes of destructive behavior.
If after an open conversation the employee continues to refuse to make contact, despite the size of the possible monetary compensation agreed upon with him, benefits and the guarantee of providing good recommendations, the manager should use one of the methods that will help make a subordinate decision to leave the company.
How to force a person to leave work voluntarily
The first way is to warn about the preparation of negative recommendations and the dismissal under the article that will erase all past achievements and can put an end to career growth. Usually, employees are afraid of such actions on the part of the employer and agree to voluntary care with minimal losses and consequences for themselves.
The second method is more stringent and involves the use of formal methods that are not prohibited by law. The head has the right to record the working time of a subordinate, to issue all working instructions in writing and to demand reports on the completion of tasks. Being late, absenteeism or leaving work ahead of time may serve as an excuse for disciplining and subsequent dismissal. Similarly, the fate of an employee may be affected by mistakes made by him in the performance of official duties and indicating insufficient qualifications.
If the labor agreement provides for the manager’s right to establish a minimum salary or transfer the employee to another division of the company, it is possible that this will force the subordinate to leave of his own free will.
A real “gift” for an employer who wants to get rid of an employee will be a gross violation of labor discipline by the latter. The boss has every right to dismiss a person by law. As a rule, rarely do any of the employers take such a step, and, despite the guilt of a subordinate, they leave him the opportunity to make a letter of resignation on his own initiative.
Grounds for issuing a wolf ticket
What can a person be fired for? The current labor legislation provides for several circumstances that are the reason for the reduction. You can legally fire a person:
- for absenteeism - as a rule, they resort to this method in relation to regular violators of labor discipline (absenteeism is considered a four-hour absence at the workplace);
- for the performance of official duties in a state of alcoholic or drug intoxication - a medical examination is required;
- for violation of labor protection rules - subject to investigation by a special commission and the onset of adverse consequences;
- for the disclosure of classified information - in this case, it will also be necessary to prove the employee’s guilt, that is, provide evidence that the leak of personal data, corporate secrets or other information not subject to publicity occurred as a result of incorrect performance of their duties by a specific person;
- for theft or intentional damage to property.
Moreover, in the latter case, the employee can be dismissed for embezzlement in small amounts, regardless of who the injured party is — the enterprise, the head personally, or any other person. The main condition is that the theft must be committed at the workplace, and to confirm the theft, as grounds for dismissal, a court decision is required to confirm the employee’s guilt.
At the same time, one cannot exclude 100% that other subordinates may be in conspiracy against the employee. Unfriendly colleagues sometimes specially create all the conditions for a person to be fired. How to do this? One way is to keep track of the “victim”, record all delays and report on each miss to the management.
Article dismissal procedure
Regardless of the reason for the dismissal of the employee without his desire, the employer will definitely have to follow all the procedural steps:
- conducting an internal investigation to verify the guilt of the employee;
- the requirement from the subordinate to receive written explanations in which he must justify the motives of his misconduct;
- issuing an order;
- issuance of a work book, transfer of monetary compensation, execution of a statement of income.
The issuance of documents should take place in the presence of third parties who can confirm that the employee received all the papers in his hands. If the employee does not agree with the decision of the employer, he may try to challenge him in court. Moreover, in this case, the former boss will have to prove that the dismissal was justified, so before dismissing a person for absenteeism, he should make sure that he has no valid reason. If she had a subordinate (illness, force majeure), the reduction will be considered illegal.
The court will take the side of the employee accused of drinking alcohol in the workplace, if this fact has not previously been recorded by the authorized bodies. The disclosure of trade secrets, which does not have confirmation and signs of publicity, is not considered a sufficient basis for the deprivation of work.
Low skill level as a reason for dismissal
Those employees who do not have a sufficiently high level of education or their qualifications do not correspond to the position can always be left without work. Management has the right to terminate the employment contract legally. But since it is impossible to dismiss people fictitiously referring to a mismatch of the position held, the law provides for a special procedure for evaluating and confirming the professionalism of an employee in independent centers for qualification assessment.
In addition, payment for these services rests solely with the employer. Before dismissing a person, the management is obliged to offer him a position corresponding to the existing professional training. If there are no such vacancies at the enterprise or the subordinate himself does not want to be transferred to a new position, the employer may proceed to terminate the employment contract.
Refusal of employment after passing the probationary period
Since the management does not have the right to dismiss a person on a trial period without justifying the reason, the employer will have to give good reasons as arguments and prove that the employee did not pass the internship period. The management is obliged to inform the management of the decision no later than three days before the expiration of the preliminary labor period. How to fire a person on probation? First of all, it is necessary to indicate the mistakes made by the trainee during the test period. The employee has the right to challenge the decision on dismissal, but the court will take the side of the plaintiff only if the employer cannot provide concrete evidence of the non-compliance of the position.
The question of how to fire a person during the trial period does not arise when appointing pregnant women, underage workers and university graduates who are employed for the first time. Otherwise, the dismissal is recognized as illegal and is canceled.
Mass Redundancy
The employer has the right to independently decide how many hired specialists he needs. If an entrepreneur decides to reduce the number of employees, no one has the right to forbid him that. In addition, an organization may simply cease operations or be liquidated. In this case, the rights of workers are protected by Article 81 of the Labor Code of the Russian Federation. This norm places on the enterprise management a number of obligations:
- notify workers in advance who will be laid off - no later than 60 days before the expected date of reduction;
- transfer information about personnel changes to the employment service, trade unions;
- offer employment for available vacant positions;
- to pay severance pay to everyone who fell under the reduction (the amount of the last payment is equal to the average monthly salary in half).
The Labor Code of Russia also talks about how to fire people of certain categories. From reduction of staff, if it is not caused by the liquidation of the enterprise or the termination of the IP, are protected:
- women raising children under three years of age or on maternity leave;
- mothers who raise children under 14 years old without a father;
- women raising a disabled child until they reach adulthood;
- legal representatives of children under 14 in the absence of a mother;
- minor employees.
Is it possible to dismiss an employee during illness or vacation
Unlike the employer, the employee has the right to terminate the employment contract on his own initiative at any time. All you need to do is warn the management in advance. Moreover, this can be done during the period of sick leave or vacation, and even before the upcoming dismissal, use the right to legal annual leave. An employer will not be able to fire a person on vacation, no matter how much he wants it. If the company is liquidated or the IP ends its activities, the management informs the staff in advance about the upcoming reduction, taking into account the planned vacation schedule and current sick leave.
Dismissal due to the death of an employee
In this question, the wording belongs to a particular meaning. Many personnel department employees ask how to fire a deceased person, but from the point of view of the law it is impossible to fire a deceased person. It is more correct to call the circumstance that has arisen “the termination of the employment contract for reasons that do not depend on the will of the parties”. By the way, article 83 of the Labor Code of the Russian Federation contains a similar wording and regulates the procedure for the death of a subordinate and the algorithm of the dismissal process.
Any information about the death of an employee received from his family members, employees of law enforcement agencies or medical institutions cannot be recognized as sufficient grounds for termination of the employment contract. The corresponding order is issued by the management only after the death certificate of the employee is presented. Thus, an order to terminate the contract cannot be issued earlier than the date indicated in the document.
Based on the general rules of the workflow, each employee dismissed must put his signature in the order, but in the event of the death of the employee, the corresponding document box is left blank.
Is it mandatory to work out two weeks?
If an employee wrote a letter of resignation on his own initiative, while on sick leave or on vacation, an unscrupulous employer may require him to work for two weeks. Such a condition put forward by the management is not legal, but expresses only the interest of the employer, aimed at improving labor productivity and ensuring the continuity of the work process.
The two-week working period referred to in the Labor Code is provided for the employer to be able to find a replacement for an employee with a vacant vacant post. The subordinate can write a letter of resignation of his own free will during the holidays or temporary incapacity for work two weeks before the expected date of departure, and, therefore, the need for further work will disappear by itself.
Psychological features
It is difficult to unequivocally answer the question of which is easier - say goodbye to a parasite who, by hook or by crook, is trying to keep his job, to reduce his staff due to the liquidation of the enterprise, or to dismiss a person who has not passed a probationary period. Paradoxical as it may sound, dismissal is not only difficult for employees. Most employers would like to avoid communication on this topic. To minimize the negative consequences of dismissal and maintain a satisfactory relationship between the former boss and subordinate, you need to know about some psychological aspects.
According to unconfirmed reports, men suffer more from stress due to job loss. Psychologists attribute this to the psychophysiological characteristics of the stronger sex. Due to stereotypes prevailing in society, men are more inclined to social success than women, and therefore dismissal is often perceived by them as a personal defeat, a collapse of life plans. Women are less prone to inadequate psychological reactions against the backdrop of job loss and are quicker to adapt to new conditions.
To the farewell conversation brought a minimum of experience, the leader should properly build it. Psychologists recommend adhering to the “positive-negative-positive” scheme:
- The first stage is a positive beginning. The challenge is to create a favorable emotional background. At this stage, it is important to show the employee your respect for him, as a person, an individual.
- The second stage is a negative conversation. The employer should be prepared for the fact that the news of dismissal can cause a person not only resentment and tears, but also a violent “explosive” reaction. No matter how much the subordinate reacts and whatever he says, it is necessary to listen to him calmly, but in no case need to show excessive sympathy and pity - this will only increase the manifestation of emotions.
- The third stage is completion on a major note. As soon as a person comes to his senses after hearing the news, it is necessary to return to the positive part of the conversation. You can reassure an employee and instill hope in him with words about significant professional potential and huge chances for self-realization in another company.
If a subordinate is ready to leave the post without scandal, many managers on their own initiative draw up a good recommendation letter for successful employment of a person in the future, give advising advice on finding a future job, advanced training, short-term training and other important points.
Dismissal and the search for a new job is not the end of life. This is one of the career stages that every person has to face. Cheer up is not worth it, because sooner or later it will be possible to get a new position, which will open up new prospects and allow you to build optimistic plans for the future.