Dismissal for reprimand - Labor Code of the Russian Federation. The procedure for dismissal in the form of a disciplinary sanction Dismissal for a disciplinary sanction procedure

Many may think that an employer can fire for any reason: both for a minor insignificant offense and for a serious offense. Let's consider what exactly is the basis for dismissal and how to correctly apply a disciplinary sanction in the form of dismissal.

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Reason for use

Disciplinary action in the form of dismissal is a type of punishment consisting in terminating the activities of an employee and terminating his employment contract. The reason for this may be systematic failure to fulfill official duties or gross violations of labor discipline.

And if the manager can use other measures of punishment, for example, reprimands or remarks, at his own discretion, then clear grounds are prescribed for termination of employment.

Article 81 of the Labor Code of the Russian Federation lists exactly what can serve as a reason for terminating a contract as a disciplinary sanction.

According to, the reason may be:

  • Repeated failure by an employee to fulfill his duties without good reason;
  • Absence from work for more than 4 hours without good reason;
  • Disclosure of trade secrets;
  • Theft in the workplace;
  • Violation of labor protection requirements;
  • Commitment of immoral acts on the part of an employee;
  • Appearing at the workplace under the influence of alcohol or drugs, etc.

How many disciplinary actions are necessary before an employee can be fired? If the violation is not serious and does not entail unpleasant consequences for the organization, then the employee is first warned about the possible consequences for him.

After several systematic warnings, the manager has the right to dismiss the employee. In case of gross violation, the employment contract must be terminated immediately.

Termination of a contract as a punishment can be applied not only to ordinary employees, but also to senior management:

  • The head of the organization;
  • Deputy heads;
  • Accounting employees.

All grounds that may lead to dismissal must be documented and supported by witness testimony. If the employee can prove his innocence, previously applied measures should be canceled.

Legal and illegal dismissal

Disciplinary action in the form of dismissal is quite a serious step for the head of an organization. Therefore, in order to do everything legally, it is necessary to comply with the norms and rules of the law.

The following mistakes are made quite often:

  1. Those documents that entail subsequent dismissal are missing or incorrectly drawn up;
  2. Application of punishment during the period when the employee is on vacation or sick;
  3. The employer fails to issue a work book on time;
  4. The employer violates all established deadlines when disciplinary action may be taken;
  5. Upon dismissal, all statutory payments and compensations are absent;
  6. The initial reprimand was imposed informally, meaning there was no written order imposing the punishment;
  7. The employee was fired for violating labor discipline, despite having a documented good reason;
  8. Applying two different penalties to one employee for one violation.

Therefore, in order to fire an employee for committing an offense in the workplace, mere desire and the presence of vague evidence are not enough. Clear evidence is needed.

If the employee was fired with the above errors, then such an action may be declared illegal in court.

In this case, a fine may be imposed on the employer, and compensation may be paid to the employee and he may be reinstated in his job.

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Algorithm of actions

In order for the dismissal of an offending employee to be legal, and for the manager to not be held accountable for his actions in court, the entire algorithm of this procedure must be followed.

The correct way to apply dismissal as a disciplinary sanction is as follows:

  • An employee who notices a disciplinary offense must report it to senior management in writing;
  • Senior management, in turn, must:
    • Make every effort to ensure that this misconduct by a particular employee does not happen again;
    • Demand an explanatory statement in writing from the offending employee;
  • If an employee ignores the manager’s request for a written explanation of the misconduct for several days, a document is drawn up on the refusal to draw up an explanatory note. This document must be signed by several persons;
  • If the employee’s guilt is proven and there is documentary evidence of this, a dismissal order can be drawn up.

The employer also needs to remember within what time frame the dismissal of an employee for violation of labor discipline is considered legal:

  1. One month. The period is counted from the day the misconduct was discovered, with the exception of those days when the employee was on vacation or sick leave;
  2. Six months. The period is counted from the day the offense was committed and can be extended to 2 years if the violation was discovered during the inspection.

Provided that during the year the citizen has no more disciplinary sanctions or repeated violations, the first punishment is automatically cancelled. And we can assume that the person has no disciplinary sanctions.

Documenting

In order to comply with all the nuances of dismissal according to legal norms, it is necessary to have properly completed documentation.

The following documents are required:

  • employee in writing. This document is mandatory and its absence may serve as a valid reason for challenging the dismissal process. In the explanatory note, the employee must indicate for what reasons the violation occurred and whether there are good reasons not to consider the action a violation. The explanatory note is submitted within 2 days;
  • . This document is drawn up after two days, which are given to the employee to write a written explanation;
  • Act on the violation committed. The document must record facts of violation of labor discipline by the employee, confirmed by several witnesses (these same witnesses must put their signatures on this act);
  • Order of dismissal. The document is drawn up at the last stage of the procedure. It indicates the actual basis for the dismissal of the employee, as well as the offense itself that was committed. The dismissed person must familiarize himself with the order and sign it within 3 days. If an employee refuses to sign a document, it is necessary to draw up a corresponding act.

Depending on the violation committed by the employee, other documents may be needed:

  1. Written testimony of witnesses;
  2. from the citizen who recorded the violation;
  3. Copies of internal documents of the organization, etc.

Thus, the more irrefutable evidence of violation is collected, the more legal the dismissal will be.

Sample order

There is no strictly established form for an order for dismissal as a disciplinary sanction. Each organization can draw up its own form using its own basic rules.

You can take any unified form of personnel order as a basis. By adhering to the general structure of constructing this type of document, it is less likely that important details will be missed.

What is the validity period

Information on the duration of disciplinary sanctions is specified in Art. 194 Labor Code of the Russian Federation.

In our own words, we can say that if there are no complaints against the employee within a year after the first disciplinary sanction, then it is automatically removed. That is, the personnel employee may not make any notes. This means that the collection period is one year.

When you quit, things are a little different. If a violation of labor discipline resulted in the dismissal of an employee, it means that a record of this appears in his personal file, a corresponding order is issued, and an entry appears in the work book.

Therefore, such a practice has emerged among legal organizations - after dismissal for violation of labor discipline, a former employee can appeal to the labor dispute commission and, if possible, it is possible to change the entry in the labor record.

But on the other hand, after dismissal, all disciplinary obligations to a specific employer cease, which means that such a penalty has no validity period.

Appeal

Regardless of what type of disciplinary sanction an employee receives, he can appeal it.

An appeal can be submitted to one of the following authorities:

  1. Labor Dispute Commission;
  2. Labor inspection.

The following deadlines for appeal are provided by law:

  • Three months, if labor sanctions are issued in the form of a reprimand or warning;
  • One month if the penalty resulted in dismissal.

In what cases is disciplinary action considered dismissal? What rules should be followed in case of disciplinary action in the form of dismissal? The procedure for filing a disciplinary sanction in the form of dismissal.

Types of disciplinary sanctions

Article 192 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation) provides a general list of disciplinary sanctions that can be applied to all employees:

  • comment;
  • rebuke;
  • dismissal for appropriate reasons.

Grounds for disciplinary action in the form of dismissal

Article 192 of the Labor Code of the Russian Federation provides that a disciplinary sanction is dismissal on the following grounds:

  • repeated failure to fulfill labor duties by an employee without good reason, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
  • absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ( subparagraph "a" clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
  • the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility, where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication (subclause "b" clause 6, part 1, art. 81 Labor Code of the Russian Federation);
  • disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee (subclause “c”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation) ;
  • committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph "d" clause 6, part 1, article 81 of the Labor Code of the Russian Federation);
  • violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (work accident, breakdown, catastrophe) or knowingly created a real threat of such consequences (subparagraph "d" paragraph. 6 Part 1 Article 81 of the Labor Code of the Russian Federation);
  • commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of trust in him on the part of the employer and if they were committed by the employee at the place of work and in connection with the performance of his job duties (Clause 7, Part 1, Art. 81 Labor Code of the Russian Federation);
  • failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or submit incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and liabilities property nature of their spouse and minor children, opening (having) accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, possession and (or) use of foreign financial instruments by an employee, his spouse (wife) and minor children in cases provided for by the Labor Code of the Russian Federation, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give grounds for loss of confidence in the employee on the part of the employer (clause 7.1 part 1 art. 81 Labor Code of the Russian Federation);
  • the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work, if they were committed by the employee at the place of work and in connection with the performance of his job duties (clause 8 of part 1 of article 81 of the Labor Code of the Russian Federation);
  • making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
  • a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).

Rules for bringing to disciplinary liability in the form of dismissal

When bringing employees to disciplinary liability in the form of dismissal, the employer must be guided by both the general rules established by law for terminating an employment contract and the norms of Articles 192 and 193 of the Labor Code of the Russian Federation.

Rule 1. For each disciplinary offense, only one disciplinary sanction can be applied.

Rule 2. Disciplinary action is applied within the time limits established by law.

As a general rule, disciplinary action is applied 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 take into account the opinion of the representative body of employees (Part 3 of Article 193 of the Labor Code of the Russian Federation).

The absence of an employee from work for other reasons does not interrupt the flow of the month.

What should be considered the day the misconduct was discovered? The answer to this question is contained in paragraph 34 of the resolution of the Plenum of the Supreme Court 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.”

The day of detection of the misconduct is considered the day when the person to whom the employee is subordinate for work (service) became aware of the commission of the misconduct, regardless of whether he was vested with the right to impose disciplinary sanctions.

A disciplinary sanction cannot be applied later than six months from the date of commission of the offense, and based on the results of an audit, inspection of financial and economic activities or an audit - later than two years from the date of its commission; the specified time frame does not include the time of criminal proceedings.

Rule 3. When applying a disciplinary sanction, the severity of the offense committed and the circumstances under which it was committed must be taken into account.

The employer must have evidence indicating not only that the employee committed a disciplinary offense, but also that when imposing a penalty, the severity of this offense, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work were taken into account.

Responsibility of the employer when imposing a disciplinary sanction in the form of dismissal

If a disciplinary sanction in the form of dismissal was imposed and when considering the case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied. Please note that in this case, the court does not have the right to replace dismissal with another penalty, since in accordance with Art. 192 of the Labor Code of the Russian Federation, imposing a disciplinary sanction on an employee is the responsibility of the employer.

Rule 4. The fact of committing a disciplinary offense must be properly recorded.

The fact that an employee has committed a disciplinary offense can be recorded by various documents: acts, certificates, memos, protocols of authorized bodies and officials, court decisions, etc.

Example

For example, clarification of the circumstances of an employee’s failure to fulfill his job duties may begin with a memorandum from the head of the structural unit that monitors the employees’ performance of job duties.

In addition, Art. 195 of the Labor Code of the Russian Federation obliges the employer (representative of a legal entity) to consider the statement of the representative body of employees about the violation by the head of the organization, his deputies, heads of structural divisions of laws and other regulations containing labor law norms, the terms of a collective agreement, agreement.

Rule 5. Before applying disciplinary action, the employer must request a written explanation from the employee.

Advice

It is advisable to require an explanation from the employee regarding the commission of a disciplinary offense in writing by means of a notice of the need to provide such an explanation.

In the event that an employee refuses to familiarize himself with the notice of the need to give a written explanation of the violation of labor discipline and refuses to receive the notice, it is advisable to draw up an appropriate act. The act should indicate that the employee is familiar with the contents of the notification. If the employee refuses to familiarize himself with the act, a corresponding note is made about this.

Part 1 art. 193 of the Labor Code of the Russian Federation contains a rule that the employer must require a written explanation from the employee. Thus, the person authorized to demand a written explanation from the employee is the head of the organization or a person vested with the appropriate authority by the head

An employee, within two working days from the moment the employer requests written explanations from him, may set out the circumstances of his violation of labor discipline and his attitude to his own behavior and its consequences in an explanatory note.

If the employee provides written explanations, they must be taken into account by the employer when imposing a disciplinary sanction.

If, after two working days from the date of sending the notification, the employee has not provided the specified explanations, an appropriate act must be drawn up. The act indicates the circumstances in connection with which a written explanation was requested and the period within which it had to be submitted by the employee.

Failure by an employee to provide an explanation is not an obstacle to applying disciplinary action in the form of dismissal.

Rule 6. In certain cases, the application of a disciplinary sanction in the form of dismissal is possible only after taking into account the reasoned opinion of the elected body of the primary trade union organization.

In accordance with Part 2 of Art. 82 of the Labor Code of the Russian Federation, dismissal of workers who are members of a trade union on the basis provided for in clause 5, part 1, 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.

The employer sends to the trade union a draft dismissal order, as well as copies of documents that form the basis for the decision to dismiss this employee. A set of documents can be sent by attaching them to the appropriate written notice.

The employer has the right to terminate the employment contract no later than one month from the date of receipt of the reasoned opinion of the elected body of the primary trade union organization. During this period, periods when the employee retains his place of work (position) are not counted - periods of temporary disability of the employee, being on vacation and other periods of absence of the employee (Part 5 of Article 373 of the Labor Code of the Russian Federation).

Rule 7. The application of disciplinary action must be properly documented.

Registration of disciplinary action in the form of dismissal

Disciplinary action in the form of dismissal and subsequent termination of the employment contract with the employee are issued in one order.

In accordance with Part 6 of Art. 193 of the Labor Code of the Russian Federation, an employer’s order (instruction) to apply a disciplinary sanction is announced to the employee against signature within three working days from the date of its publication, not counting the time the employee is absent from work. The employee’s signature on the order does not confirm that he agrees with the imposition of disciplinary action, but only confirms the fact that he is familiar with the employer’s order to apply a disciplinary sanction.

If the employee refuses to familiarize himself with the specified order (instruction) against signature, an appropriate act must be drawn up. It is advisable to indicate in the text of the act that the employee is familiar with the contents of the order, but refused to familiarize himself with it upon signature.

In the event that a disciplinary sanction in the form of dismissal is applied, and the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under signature, a corresponding entry is made on the order (instruction) of the employer to terminate the employment contract (dismissal).

A record of the application of a disciplinary sanction in the form of dismissal is made in the employee’s work book (in strict accordance with the wording of the Labor Code of the Russian Federation and with reference to the relevant article, part of the article, paragraph of the article of the Labor Code of the Russian Federation).

If an employee refuses to sign, no additional entries about this should be made in his work book. The fact that the employee did not put his signature in the work book and did not receive a work book upon dismissal, the person responsible for maintaining and storing work books, makes a corresponding note in the Book of Accounting for the movement of work books and inserts in them. You can also make a note about the employee’s refusal to receive a work book in the relevant act.

Rule 8. You cannot fire for violation of labor discipline:

  • the employee during the period of his temporary incapacity for work and while on vacation;
  • pregnant woman.

Aida Ibragimova, head of the HR department of KSK group

08 February 2016

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. We are talking about the dismissal of an employee for repeated violation of his work 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 regulatory act, order of the employer, labor legislation and other regulatory legal acts containing provisions of labor law, or, conversely, if the employee does not commit the actions provided for in these documents actions.

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, one should be guided by the general rules of dismissal. The following documents must be prepared: an order to terminate the employment contract, a settlement note, a work record book, and the 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 her workplace ahead of schedule, and went on vacation without permission without warning.

A personnel audit showed that the client’s company maintained personnel records with serious violations and many required documents were missing, as a result of which it was impossible to file 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 after the employee has approved and familiarized herself with all the specified personnel documents can disciplinary sanctions be applied. 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 disciplinary sanctions were drawn up against the employee; when she committed a third offense, a dismissal procedure was followed under clause 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.

Almost every person has quit their official place of employment at least once in their life. Therefore, he knows that there can be many reasons for dismissal. But the procedure itself differs in some features when dismissing each person.

What it is?

Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

For various offenses at his place of work, an employee may bear different punishments. The employer can also apply various penalties, but in accordance with the current legislation.

The main punishment here is dismissal, but this method is rarely used and only in severe cases.

The main factor for running a successful business is work discipline. That is why every employer should be interested in high productivity and optimal use of labor resources.

To achieve maximum results in any company, you can see regulatory documents that reflect all the information.

The employee’s functional responsibilities, work schedule and standards are also spelled out here.

If these conditions are not met, the employer may apply a measure such as. It refers to the rules of conduct enshrined in current legislation.

The main provisions of the Labor Code and internal legal acts regulate.

If there is a disciplinary sanction, the company is obliged to prove the existence of a violation and unlawful actions of the employee. Only the head of the company, who undertakes to create and sign a decree, has the right to apply an extreme measure.

Grounds

Dismissal as a disciplinary sanction should only be carried out on substantial grounds. This is considered a kind of punishment, which entails termination of the employment relationship in case of gross violation of conditions.

Unlike soft penalties, such as a reprimand, here the company applies dismissal measures in accordance with the Labor Code.

This is a fairly serious penalty for wrongdoing. And to apply it, you need to have weighty arguments.

All grounds for such a penalty are stated in.

In accordance with paragraphs 5–10 of this legal act, there are several:

  1. Failure to fulfill obligations or neglect. There does not have to be a certain number of violations. If the employee has been warned in writing of the existence of such a threat, then dismissal may apply. If the person commits misconduct again, he may be fired.
  2. One-time violation of obligations. This includes only gross violations that carry unpleasant consequences. This type should be classified as when an employee is absent for a long time, a person comes to work intoxicated, or disclosure of secrets occurs.
  3. Committing immoral acts. This entails the lack of employment opportunities for a similar position.
  4. Loss of employer confidence. For example, when servicing commodity-money material assets.
  5. Making a decision that caused a violation of the safety of the organization’s property.

It is also worth including theft and theft in the workplace. This also takes into account waste and damage to property.

All grounds must be supported by documentary evidence or the presence of witnesses. A prerequisite is the presence of everything that can be provided in court and prove that you are right.

If the employee can also prove the illegality of the employer’s actions or absence for a good reason, then he has the right to go to court.

The legislative framework

This issue is regulated by Articles 189, 81 of the Labor Code. In the last article, subparagraphs 5–10 are devoted to this issue.

Issues are also regulated by the internal legal acts of the organization.

Disciplinary action in the form of dismissal

Disciplinary action in the form of dismissal in 2020 is the most severe punishment for misconduct. It is used only in difficult situations where the company has been harmed.

Dismissal is also permitted in case of failure to fulfill one’s obligations in accordance with the labor code.

Legal and illegal

To carry out the dismissal procedure legally, you must fulfill all the requirements described in the law.

Employers often make the following mistakes:

  • incorrect preparation of documentation or lack thereof;
  • the use of this method of collection when an employee is on sick leave or maternity leave;
  • untimely payment or;
  • violation of the deadlines under which it was possible to apply a penalty;
  • lack of payments even upon dismissal;
  • if the reprimand is not in an official form, without supporting documents and witnesses, the first violation must necessarily be in the form of a written statement;
  • if the employee has a valid reason for failure to fulfill his obligations;
  • application of several punishments for one offense.

From the above it follows that it will not be possible to use one basis here. If an employer fires you without complying with these rules, you can be reinstated through the courts. In addition, the employer will be required to pay a fine and compensation to the employee.

Registration procedure

Dismissal must occur in accordance with all standards described in the law. This is an important requirement, otherwise the employer may be held liable.

The correct algorithm of actions looks like this:

  • if a violation is detected, you must inform the director or other authorized person;
  • management tries to stop such behavior or require a written explanation for such action;
  • if a person does not explain his actions, then the employer draws up an act of refusal to provide a written explanation;
  • here a dismissal order is already being drawn up, but only if guilt is actually proven and can be documented.

Dismissal is possible only within certain periods. That is, this is a month from the discovery of the misconduct or six months from the date of the commission of the misconduct, if such an action was discovered during the audit.

If during the year the employee regularly fulfilled his obligations and there were no complaints against him, then the first punishment is removed.

Documentation

This type of dismissal must be formalized correctly. For this purpose the following is compiled:

  1. Written explanation from the employer. This is a mandatory document as a basis for challenging a claim. The employee explains the reason for his behavior. The document is drawn up within two days.
  2. Act on refusal to provide the first document. It is compiled at the end of the procedure. The order specifies the basis for dismissal, as well as the misconduct. Within three days, the employee gets acquainted with the documentation.
  3. An act of an already committed offense. This refers to the violation of the employee and the circumstances.

Each individual case requires the provision of other documents. For example, a written statement from a witness, official notes, or copies of internal documentation. And the more documentation there is, the greater the chance to prove your case in court.

Order

The fact of the existence of a disciplinary sanction, the reason for dismissal and grounds, as well as all other points regarding the committed act are stated. That is, the place, time of commission, motivation.

The order specifies the end date of employment. The employee must familiarize himself with the document within three days after its preparation.

Gives the boss the right to bring the offending employee to disciplinary action. The employer decides independently what punishment to apply to the employee, based on the current situation and the severity of the offense. There is enough choice:

  • a reprimand or reprimand is the lightest disciplinary punishment;
  • dismissal.

According to the law, a violator faces only one punishment for one offense. An employer may not punish an employee too harshly for minor mistakes and limit himself to a verbal reprimand or reprimand. For how many reprimands can an employee be fired, explains Art. 81 Labor Code of the Russian Federation: repeated failure to fulfill one’s duties without good reason, subject to at least one disciplinary sanction. In other words, even one existing reprimand is enough to dismiss you for a repeated violation. As a rule, dismissal occurs for the following offenses:

  • repeated violation or failure to fulfill labor duties, clause 5 Art. 81 TK;
  • gross violation of work duties and labor discipline (absenteeism, drinking alcohol, theft, disclosure of confidential data, etc.), clause 6 Art. 81 TK;
  • commission of an immoral offense by a teacher, clause 8 Art. 81 TK;
  • making an unreasonable decision by the manager that resulted in harm to the company, clause 9 Art. 81 TK.

Also, an employer can and has the right to part with an employee if he regularly commits violations in his work and already has a disciplinary sanction. Therefore, when deciding how many reprimands are needed to dismiss an employee, in each specific case the employer must proceed not from quantitative indicators, but from the presence of two formal signs:

  • existence of a valid penalty;
  • repeated failure by the employee to comply with his duties.

Disciplinary punishment is valid for one year, and if during this time the employee has not committed new offenses, it is removed automatically. However, if within a year the person commits another offense, he may be fired.

The following circumstance is important in this case: if the manager decides to part with the specialist, then there is no need to announce anything for a repeated violation; it is necessary to prepare an order for dismissal. Because if an employee is punished, dismissal for a reprimand cannot be made, since each violation can only be punished once.

An important factor when deciding whether to punish an official in the form of termination of a service contract is the need to take into account the severity and circumstances of the violation. Therefore, if an employee is fired because he was late for work a couple of times, the court will most likely consider such dismissal to be unjustified.

Entry in the work book

If the employer decides to part with the person on this basis, a corresponding entry is made in the work book.

A similar entry is made in which the dismissed employee must sign.