Dismissal is an unpleasant procedure for both the employee and the employer. The reasons may be different: reduction, mismatch of the position, absenteeism, disclosure of secrets, gross violation of duties, etc. In the article, we will consider how to dismiss an employee without his will and at the same time comply with the requirements of the law during the procedure and, if possible, avoid litigation.
Forced Dismissal: Key Points
Since the event in this case is not held with the consent of the employee, it is important to comply with all requirements of labor legislation.
Dismissal is the process of termination of an employment contract (TD) when an employee ceases to fulfill his duties, and the employer relieves himself of the burden of paying for his labor.
It can be made on the initiative of:
- employee
- employer
- by agreement of the parties
- for independent circumstances (going to work of a “maternity” employee, expiration, etc.);
- in connection with violations of the norms of the Customs Code at the conclusion of the TD, if this excludes the continuation of work.
Relations in this area are governed by articles of the Labor Code of the Russian Federation, in particular, the grounds for terminating the contract at the employer's submission are set forth in Art. 81.
It is worth noting that, on the initiative of the head of the enterprise, the law prohibits the dismissal of pregnant women, single mothers with children under 14 years old, women with children under three years of age. The exception is the liquidation of the company.
Next, we will consider the question of how to legally dismiss an employee, what stages the procedure consists of. We also touch on the topic of whether it is always necessary to terminate an employment contract in the presence of such unpleasant circumstances.
At the initiative of the employer: list of reasons
It often happens that the employer deliberately leads the employee to a dismissal under the article, because he becomes objectionable, and he does not agree to leave. Or, on the contrary, the employee is so arrogant that he can come to work drunk or skip for no good reason, grossly violates the work schedule.
Let’s figure out whether the employee can be fired for the reasons indicated.
So, the reasons may be:
- reduction of staff / number of employees;
- liquidation of a company;
- identification of inadequate qualifications based on the results of certification, from which the mismatch of the position / work;
- change of ownership of company property;
- more than two times failure to perform duties without good reason in the presence of disciplinary sanctions;
- loss of confidence in the person who services goods and materials in the commission of guilty acts, as well as non-settlement of conflicts of interest, concealment of information on income, expenses, property, etc .;
- the provision of forged documents at the conclusion of the TD;
- the immoral act of an employee who performs educational functions if further work is not possible;
- gross violation by the first persons of the company of their duties;
- unreasonable decision made by the head, chief accountant, their deputies, resulting in damage;
The reasons also include a gross violation of official duties:
- coming to work while intoxicated (alcohol, drugs, toxic substances);
- absenteeism;
- disclosure of secrets (commercial, state, etc.), personal data of another employee;
- theft of other things at the place of work, intentional damage / destruction of property, embezzlement (must be confirmed by a decision of a court or other body);
- non-compliance with labor protection requirements if this entailed grave consequences (accident, accident) or created a threat of their occurrence (there must be an act of the labor protection body).
Other grounds established by law may be present.
Order of registration
How to fire an employee? Representatives of companies often come for legal advice with this question. And not in vain, since the consequences that will have to be faced will depend on compliance with the requirements of the law upon dismissal. Violations are fraught with lawsuits, the recovery of significant compensation.
The stages can be identified as follows:
- The employer issues an order to dismiss the employee (in some cases it is necessary to draw up an act of violations, sometimes involving labor protection authorities). Familiarization of the employee under the signature within three days with this document. If you refuse to sign, you need to make an appropriate mark.
- Settlement with an employee: issued salary, compensation for unused vacation and other payments.
- A record of dismissal is made in the work book. If the question arises "under what article to dismiss an employee", you can turn to a legal adviser for help.
- On the last day the book is handed out, about which an entry is made in the book of accounting.
At the first stage, if an employee quits in accordance with his guilty actions, the manager needs to stock up with relevant evidence. For example, if an employee skipped work, then an act should be drawn up in the presence of two witnesses, which must be presented to him immediately after arrival. If you refuse to sign, you need to make a mark on the document. After that, request an explanatory note in writing. And the final stage will be the publication of the order to terminate the contract. For more information on how to fire an employee for absenteeism and other “non-rehabilitating” reasons, read below.
What papers are handed out?
When the TD is terminated, documents are issued to the dismissed employee on the last business day, among them:
- copy of the dismissal order;
- employment history;
- certificate 2-PIT for the relevant period.
Additional documents are provided upon request of the employee within three days, which may include:
- copies of orders;
- certificate of salary for 2 years;
- information about vacation, etc.
The personal file of the dismissed employee is stored in the organization’s archive. The term is 50 years. Specific periods are established by the Order of the Ministry of Culture of the Russian Federation of 2010 under No. 558. The files of persons from the leading structure, members of representative bodies of the Russian Federation / subjects / bodies of LSG are constantly stored; employees who have state awards, titles, bonuses, degrees.
Cash payments
With the termination of the labor function, the employee loses the right to receive remuneration.
Consider what payments to the laid-off employee are required by law:
- The salary. Paid in full for the entire period worked.
- Compensation for unused vacation (if any).
- Severance payable in the amount of:
- earnings for 2 weeks: upon reinstatement of a former employee at work, upon appeal to military service, upon refusal to transfer to another place due to health reasons, in connection with the relocation of the company;
- average salary for 1 month: in cases of reduction, liquidation of a company, violation of the law when concluding a TD without an employee’s fault.
Note to accountants: the tax service informs that in the third section, in the calculation of insurance premiums, laid-off employees should also be included, along with all insured persons for whom payments were made for the reporting period.
Layoff layoff
Changing the staff and number of people is the prerogative of the head of the company, respectively, and the elimination of excess posts is also in his power. The reasons are almost always the same: a decrease in production volumes, an economic downturn, the transition to automated labor, etc.
How to fire an employee without his will in such a difficult situation?
The procedure includes the following steps:
- Signing by the head of the reduction order.
- Written notice of the union for 2 months. (IP - 2 weeks), with mass layoffs - for 3 months.
- 2 months written notice workers about the upcoming dismissal. Shortened terms are provided by the TC for certain categories of employees.
- Vacancies must also be offered in writing.
- Termination of TD by issuing an order, making an entry in the work book, payments / transfer to other positions for agreed employees.
When passing this procedure, the advantage is on the side of people with higher qualifications and labor productivity.
Many in such situations have a reasonable question: "Is it possible to fire an employee on a sick leave?" Sometimes a hard worker deliberately pulls an already long period in this way, because after reduction it is sometimes impossible to find the same job. It is impossible to terminate the contract without the written consent of the patient! Otherwise, this will be a gross violation of the rule of law and, as a consequence, a direct basis for reinstating him at work.
The Labor Code of the Russian Federation also provides certain categories of “immunity” during reduction, which cannot be dismissed. For example, they include pregnant women, single mothers with minors under 14 years old, women with children under 3 years old, etc.
Intoxicated
The law elevates this factor to the rank of grounds for terminating TD without the desire of the employee.
Incoherent speech, smell, precarious state, clouded consciousness - all these are signs of being inebriated: alcoholic / narcotic / toxic.
Some ask if employees need to be fired for drinking, if they can do their job properly, just a little "bother." If for you as a leader this situation is normal, familiar and comfortable, decide for yourself, but it is worthwhile to warn that such a drunken state is fraught with dire consequences: there may be an accident, accidents, harm to other persons. And the rest of the staff, most likely, is unpleasant to work every day with a person who exudes an unpleasant odor.
If you decide to fire a drunken person, you should follow these steps:
- Remove employee from work.
- Draw up an act on being in the workplace in such a condition, attract two witnesses for confirmation (better than a lawyer and a labor protection specialist). Submit the act to the culprit for review and writing explanations. If you do not want to be frank, put a mark on this on the act.
- Refer for a medical examination. It is carried out in specialized drug dispensaries by narcologists. The faster the better, because intoxicants are excreted quickly enough.
- Ask for an explanatory when the employee is sober. In case of refusal after 2 days (period for clarification), draw up an act signed by two witnesses.
- Issuing an order of dismissal, familiarizing the employee with him within three days.
- Making an entry in the work book, handing it out and making the due payments.
Compensation to the dismissed employee in this case relies only on unused vacation.
For absenteeism
This is called absence from the workplace without good reason during the entire shift (day) or more than 4 consecutive hours per day.
To bring to disciplinary liability for absenteeism, you must have the following conditions:
- the fact of not being at work for 4 hours or more;
- disrespectful motives;
- no more than a month has passed since the day of misconduct.
Before leaving, you must definitely find out the reasons why this happened.
By respectful, based on practice, include:
- illness of an employee / close relative (death);
- Accident, disaster;
- permission of the employer;
- accidents in the housing sector, etc.
The list is not legally established, so it can be supplemented in each case. An employer's affinity depends entirely on his attitude towards you, as well as on his value as an employee.
So, how to fire an employee for absenteeism? The algorithm of actions is as follows:
- An act of absence from work with two witnesses is drawn up. But this may be the report of the immediate superior to the management of the company.
- Submission of an explanatory note in writing. The period for compilation is two days. In the absence of explanation, an act is drawn up. If the employee does not appear at work for a long time, send a message by mail / telegram about the need to explain the reasons for missing the job.
- Assessment of the validity of the reasons for absenteeism: an official investigation is closed / an act is drawn up.
- Decision to recover for misconduct. Dismissal in this case is not an obligation, but the right of the employer, so milder penalties can be applied.
- Drawing up an order on dismissal, familiarization with him of the employee within three days.
- Making an entry in the work book, making calculations.
It is worth noting that you cannot dismiss your own employee for absenteeism if he was absent in the morning (working hours from 10) and arrived only at lunchtime, say, at 14:00, because a break for rest and eating is not included in working hours.
Be careful: if you do not comply with any of the points, the employee will be able to recover at work through the court.
Upon liquidation of the enterprise
This procedure means the complete cessation of the organization's activities by exclusion from the unified state register.
With this method, everyone without exception is fired, including single mothers, veterans, etc.
Now we will consider in more detail how to fire an employee without his desire during the liquidation of the enterprise.
The dismissal process in this situation consists of the following steps:
- Issuing an order to completely terminate the organization. If the company has one founder, then draws up in the form of a sole decision, if several - is adopted at a general meeting. After the start of the procedure, the powers are transferred to the liquidation commission, which manages the company until the final entry is made to the Unified State Register of Legal Entities.
- The warning of the trade union, employment services in writing 3 months before the date of dismissal. Compiled in free form.
- Notification to employees. The total period is no later than 2 months before the day of the unpleasant event. Other terms exist for certain categories: for seasonal work - for 7 calendar days; for those employed at work for up to 2 months. - in 3 days. The document is executed in two copies: one for the employee, the other with the mark of acceptance by the employee remains with the employer. In case of refusal to sign, an act is drawn up.
- After two months, an order is issued for dismissal in the form of T-8, which is presented against the signature of the employee within 3 days. Some are wondering if they can fire an employee with his consent earlier than 2 months? Yes, it is allowed to terminate the contract before the expiration of this period, but only at the request of the employee.
- Entries are made in the work book, issued on hand with the calculation.
Many interpretations raise the question: "Do they have the right to fire an employee - a pregnant woman?" After all, the state always takes protection of this category of workers along with single mothers. Unfortunately, they also fall under dismissal upon liquidation with payment of appropriate compensation. This case is an exception to the rule, because in the absence of the employer there is no workplace. Moreover, the procedure is carried out in a general manner, without any privileges and benefits.
When dismissed by liquidation, the following payments are due:
- the salary,
- vacation compensation
- severance pay
- average earnings for the second month (if no job is found),
- earnings for the third month in the event that within 2 weeks after leaving the employee turned to the employment authorities, but they did not find work.
If the liquidation of the enterprise was fictitious or only one of the branches “burst”, and the main company continues to work, as well as in case of violation of the procedure, dismissal can be considered illegal. According to the court, an employee may demand that he be restored to work, to pay the time of forced absence, compensation for non-pecuniary damage.
If an individual entrepreneur acted as an employer, then, as an individual, he will be liable for debts even after termination of activity.
For official non-compliance
This is another reason why an employee can be fired without his will, as in the other cases considered.
Inconsistency of the position to be replaced must be necessarily confirmed by the results of certification, and not based on the personal opinion of the head or other employee.
The prerequisites for the appointment of such a study are the following facts:
- errors in work;
- customer complaints (in the service sector);
- the choice of the wrong technology in production, etc.
Previously, an employee could be recognized as inappropriate for the position held for medical reasons.For example, due to physical handicaps, fatigue, etc. But this is a very controversial issue: the presence of any ailment does not always allow us to fully perform our job duties. For these purposes, in general, there are preliminary and periodic medical examinations, which are carried out both before the start of work and throughout the entire period. For this reason, the law was amended.
According to current legal norms (Article 73 of the Labor Code of the Russian Federation), an employee who has the appropriate medical conditions does not terminate the TD, but offers to transfer to another vacant place where the work corresponds to his state of health.
Let's look at how, according to the law, to dismiss an employee who has revealed an official inconsistency:
- Issuing an order for certification, bringing it to employees under signature a month before the start.
- Conducting an "exam". A special commission is being created, which includes the director, the head of the human resources department and the immediate supervisor. Usually they certify not one person, but a whole department. It is also carried out as a regular exam at school: a task is given for a while, then the results are summed up.
- If the results show that the worker is not capable of filling this position in terms of qualities and qualifications, then he is offered other vacancies from the employer in writing. In case of refusal, the employee must make a note of this on the document.
- Preparation of the order on dismissal, familiarization with him of the employee within 3 days.
- Issuance of a work book on the last day, calculations.
The certification report is the main and mandatory document for dismissal for this reason. The remaining securities are additional, but may also be relevant in the initiation of litigation, they include:
- customer complaints;
- test results;
- memos;
- Acts
- service characteristics;
- explanatory, etc.
Moreover, according to the law, certification is not required for lawyers, rescuers, employees of the investigative committee, etc., since their working conditions are variable: amendments are made to laws, regulations, new standards are introduced, etc.
Some are wondering if it is possible and how to dismiss an employee of their own free will if an official inconsistency has already been identified. The law does not prohibit these actions, of course, if he himself agrees, then the employer is even better. In such a situation, the employee may, with the consent of the director, not work 2 weeks, as provided for by the Labor Code of the Russian Federation, but leave immediately so as not to make new mistakes.
Based on the foregoing, it can be concluded that the director can terminate the TD with the worker on the basis of discrepancy in the position being replaced only on the condition that on this date he does not have vacancies where the employee will be able to realize himself with such a level of qualification, or the latter himself has refused another work. The process of dismissal does not contain any special exceptions; it is carried out according to general rules.
In conclusion, it is worth saying that, for whatever reason the termination of the TD occurred on the initiative of the employer, the procedure should be carried out strictly within the framework of the law, any retreat threatens with lawsuits. To be more convincing, the facts should be backed up with as much written evidence as possible (certificates, acts, reports, explanatory books, books of accounting, etc.). Dismissing your own employee in the presence of these factors is not an obligation, but the right of the employer. Sometimes it is worthwhile to meet and choose the most lenient type of recovery or offer a more suitable job, since termination of the contract is always an extreme measure.