Dismissal under Art 81 p 5 practice. The procedure for terminating an employment contract with an employee according to clause 5 of article 81 of the Labor Code of the Russian Federation (repeated failure to perform labor duties). Procedure for imposing a disciplinary sanction

Having considered the issue, we came to the following conclusion:

Under repeated non-performance job responsibilities required for dismissal under paragraph 5 of the first part of Art. 81 of the Labor Code of the Russian Federation, understand the repeated violation of labor discipline during the period of validity of the previously imposed disciplinary action.

Rationale for the conclusion:

In the case of repeated non-performance by the employee without good reason of his labor duties, if he has a disciplinary sanction, he may be terminated at the initiative of the employer in accordance with paragraph 5 of part one of Art. 81 of the Labor Code of the Russian Federation * (1).

As directly follows from this norm, according to clause 5 of the first part of Art. 81 of the Labor Code of the Russian Federation is possible only if the employee has a disciplinary sanction.

In accordance with Art. 194 of the Labor Code of the Russian Federation, an employee is considered to have a disciplinary sanction only within a year from the date of its application or until its early withdrawal by the employer.

At the same time, the law does not contain a direct answer to the question of what is the minimum number of misdemeanors that constitute a recurrence.

The Plenum of the Supreme Court of the Russian Federation in paragraph 33 of its resolution of 17.03.2004 N 2 (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation) indicated that the employer has the right to terminate the employment contract under paragraph 5 of part one of Art. 81 of the Labor Code of the Russian Federation, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his job duties without good reason, it was not removed and canceled.

On the basis of this interpretation in judicial practice, there has been an understanding of repetition as a repeated violation of labor discipline during the period of the previously imposed penalty. Thus, the courts indicated that the repeated failure to perform labor duties means a repeated violation of labor discipline within a year, and the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation applies to an employee who has had a disciplinary sanction in the last year of work if he again violated his labor duties (see the definition of the Saratov Regional Court of February 14, 2013 N 33-929, determination of the Volgograd Regional Court of 01/30/2013 N 33-1208 / 2013, ruling of the Primorsky Regional Court of 04.24.2013 N 33-3380, ruling of the Kemerovo Regional Court of 13.07.2012 N 33-7145).

The type of disciplinary sanctions previously applied to the employee does not matter. So that the employer has the opportunity to fire an employee for another violation of labor discipline under paragraph 5 of part one of Art. 81 of the Labor Code of the Russian Federation, it is enough for the employee to have a comment (definition of the Orenburg Regional Court of 03.19.2013 N 33-1576 / 2013).

Thus, for dismissal under paragraph 5 of the first part of Art. 81 of the Labor Code of the Russian Federation, it is necessary that at least one penalty previously applied to an employee is not lifted and not extinguished. At the same time, as follows from clause 33 of the Resolution of the Plenum of the RF Armed Forces, it is necessary for the employee to have a valid penalty at the time of the commission of that disciplinary offense, for which he is planned to be fired. If the second most time offense was committed before the penalty for the first was applied, they do not form the number of times necessary for dismissal.

In conclusion, we note that the application to the employee of a new disciplinary sanction, including dismissal under paragraph 5 of the first part of Art. 81 of the Labor Code of the Russian Federation, it is permissible if non-performance or improper performance through the fault of the employee, the labor duties assigned to him continued, despite the imposition of a disciplinary sanction (paragraph 33 of the Resolution of the Plenum of the RF Armed Forces). However, if in this case the time interval between the issuance of two disciplinary sanctions to the employee turns out to be insignificant, the court may consider that the employer did not provide the employee with the opportunity to reform (ruling of the Primorsky Regional Court of February 25, 2013 N 33-1766, ruling of the Astrakhan Regional Court of 11/23/2011 N 33-3566 / 2011).

There is also a position according to which the number of times required for dismissal under paragraph 5 of the first part of Art. 81 of the Labor Code of the Russian Federation, cannot form misdemeanors committed by an employee in the process of performing duties in the position that he no longer holds at the time of the decision on dismissal (determination of the Supreme Court of the Russian Federation of October 29, 2009 N 5-B09-110, determination of the Chelyabinsk Regional Court from 21.04.2014 N 11-4364 / 2014, determination of the Moscow City Court dated 24.12.2012 N 11-28520 / 12). To us, this approach seems fair to the extent that it does not allow the inclusion in the system of violations of misconduct expressed in non-performance or improper performance job responsibilities which are no longer assigned to the employee. The fact that the employee did not cope with the previous duties does not indicate that he cannot properly perform his current duties. At the same time, misdemeanors of a general nature (for example, violations of the working hours), in our opinion, can be taken into account in the composition of multiple occurrences, regardless of what position the employee held at the time of their commission.

For your information:

Dismissal under clause 5 of the first part of Art. 81 of the Labor Code of the Russian Federation, being a disciplinary sanction for a specific misconduct, is possible only on the condition that the employee for such a misconduct was not previously brought to disciplinary responsibility. Otherwise it would be a violation of the fifth part of Art. 193 of the Labor Code of the Russian Federation, according to which only one disciplinary sanction can be applied for each disciplinary offense. Thus, the dismissal will be unlawful if, for all violations of labor discipline, which are the basis of the order, the employee has already received remarks and (or) reprimands (ruling of the Tomsk Regional Court of 25.04.2014 N 33-1130 / 2014, ruling of the Supreme Court of the Republic of Mari E-mail from 24.06.2014 N 33-1084 / 2014). In itself, the presence of several disciplinary sanctions of an employee is not a basis for dismissal for repeated ones. Such a ground can only be a new disciplinary offense (determination of the Leningrad Regional Court of June 19, 2014 N 33-2994 / 2014).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Kotylo Igor

Response quality control:
Reviewer of the Legal Consulting Service GARANT
Voronova Elena

The material was prepared on the basis of an individual written consultation provided within the framework of the Legal Consulting service.

* (1) Failure by an employee to fulfill his job duties without good reason is the failure to perform or improper performance through the fault of the employee of the job duties assigned to him (Article 192 of the Labor Code of the Russian Federation, clause 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation).

Dismissal for repeated failure labor duties under clause 5 of h. 1 of Art. 81 of the Labor Code of the Russian Federation

An employment contract may be terminated by the employer in the event of repeated non-fulfillment by the employee without good reason of his labor duties, if he has a disciplinary sanction under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation

Clarifications of the Supreme Court of the Russian Federation on dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation

When resolving disputes between persons dismissed under paragraph 5 of part one of Art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to perform his labor duties without good reason, it has not been withdrawn and not redeemed.

Application of a new disciplinary sanction to an employee, including dismissal under paragraph 5 of part one of Art. 81 of the Labor Code of the Russian Federation, it is also permissible if the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

At the same time, it should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when he submitted an application for termination of the employment contract on his own initiative before committing the misdemeanor, since labor Relations in this case, they are terminated only after the expiry of the notice of dismissal.

If the court finds that a disciplinary sanction was imposed in violation of the law, this conclusion must be motivated in the decision with reference to the specific norms of the law that have been violated.

In cases of reinstatement of persons dismissed at work under paragraph 5 of part one of Article 81 of the Code, the defendant is obliged to provide evidence proving that:

employment contract

It should be borne in mind that:

a) the monthly period for imposing a disciplinary sanction must be calculated from the day the offense was discovered; b) the day of the discovery of the misconduct, from which the period of one month begins, is the day when the person to whom the employee is subordinate at work (service) becomes aware of the misdemeanor, regardless of whether he or she is endowed with the right to impose disciplinary sanctions; c) the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part three of Article 193 of the Labor Code of the Russian Federation) is not counted in a month for the application of a disciplinary sanction; the absence of an employee at work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period; d) all holidays provided by the employer in accordance with the current legislation, including annual (main and additional) holidays, holidays in connection with studies in educational institutions, unpaid leave should be referred to the vacation that interrupts the monthly period.

Judicial practice of dismissal under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation

1. The dismissal was declared illegal because the dismissal order does not contain information about what specific disciplinary offense the plaintiff committed, the employer did not send the dismissal order to the trade union body

Application of a new disciplinary sanction to an employee, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is also permissible if the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

Thus, taking into account that in the course of the trial, the employer found confirmation of the violation of the labor legislation by the employer, expressed in the absence of an indication in the order of dismissal of information about what specific disciplinary offense B. the dismissal of the plaintiff and the documents that served as the basis for the dismissal, the court of first instance came to a lawful and reasonable conclusion about the satisfaction of the plaintiff's claims to cancel the order and reinstate him at work as chief engineer.

2. There is no reliable evidence that the plaintiff was familiarized with the orders on the application of disciplinary sanctions to him and was familiarized with them in a timely manner in the case file. The conclusion of the court that upon dismissal of an employee under clause 5 h. 1 of Art. 81 of the Labor Code of the Russian Federation, the employer followed the procedure for applying a disciplinary sanction in the form of dismissal, did not correspond to the circumstances of the case, which led to the cancellation of the decision

It can be seen from the materials of the case that in the court session A. argued that he was not introduced to the orders to impose disciplinary sanctions on him within the prescribed time limit, and he was familiarized with these orders only after they were presented to the court.

It is also evident from the acts presented by the defendant that A. refused to sign orders on the application of disciplinary sanctions to him. At the same time, it can be seen from these acts that the date of drawing up these acts is absent (not specified).

These circumstances are essential for resolving the dispute in the case, since Art. 193 of the Labor Code of the Russian Federation establishes the procedure for the application of disciplinary sanctions, in particular, the employer's order on the application of disciplinary sanctions is announced against a receipt to the employee within three working days from the date of its publication.

There is no reliable evidence that the plaintiff was familiar with the orders on the application of disciplinary punishments to him and was familiarized with them in a timely manner (with the exception of the aforementioned acts without date) in the case materials and the defendant (employer) was not presented.

3. For each disciplinary offense, only one disciplinary sanction may be applied. However, the order was issued not for a specific disciplinary offense, but for a set of previously imposed disciplinary sanctions, therefore, the dismissal is illegal, and the plaintiff must be reinstated at work.

D. went to court with a claim for reinstatement at work and payment of compensation for the time forced absenteeism... In support of the requirements, he indicated that he was dismissed on the initiative of the administration under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason.

In overturning the decision, the panel of judges indicated the following.

In accordance with Part 5 of Art. 193 of the Labor Code of the Russian Federation for each disciplinary offense, only one disciplinary penalty can be applied. As can be seen from the case materials, the order was issued not for a specific disciplinary offense, but for a set of previously imposed disciplinary sanctions, therefore, the dismissal is illegal, and the plaintiff must be reinstated at work. The court reasonably recognized the previously issued orders to impose disciplinary sanctions as illegal.

However, the calculation of compensation for the time of forced absenteeism was made by the court in violation of Art. 139 of the Labor Code of the Russian Federation .. For the calculation, you must take the full 12 months preceding the dismissal.

For dismissal according to clause 5 of article 81 Labor Code RF (repeated failure to perform labor duties) with First, it is necessary to impose the first disciplinary sanction, it is better if it is a reprimand.

1. Rebuke.

1.1. The employee's manager reveals the fact of the employee's first failure to fulfill his labor duties. From the moment of violations, no more than three weeks should elapse (+ one week for the procedure).

1.2. The head publishes

1.3. violation report.

1.4. Employee manager requests a written explanation from the employee. The submission of a request for explanation to the employee is sent in the following ways (all together):

1.4.1.

1.4.2.

1.4.3. By courier.

1.4.4. By telegram.

1.4.5. E-mail.

1.4.6. Available also visit to the employee.

1.5.

1.6.

1.7. Compiled

1.8. Published by disciplinary order - reprimand

1.8.1. On the speakerphone in the presence of two more people. Compiled the act of announcing the order.

1.8.2. One copy of the order in a letter with an inventory and delivery receipt.

1.8.3. By telegram.

1.8.4. By courier.

1.8.5. E-mail.

1.8.6.

2. Dismissal.

2.1. At least two more facts of non-fulfillment of labor duties by the employee during the year are revealed (Article 194 of the Labor Code of the Russian Federation).

2.2. The head publishes Order - to conduct a check on the fact of violations the commission consists of 3 people and appoints the commission. He himself is also a member of the commission.

2.3. The commission conducts a check, by the next day it is violation report.

2.4. Employee manager requests a written explanation from the employee... The submission of a request for explanation to the employee is sent in the following ways (all together):

2.4.1. On the speakerphone in the presence of two more people. Compiled an act of requesting an explanation by phone.

2.4.2. Letter with inventory and return receipt.

2.4.3. By telegram.

2.4.4. By courier.

2.4.5. E-mail.

2.4.6. It is also possible to visit an employee.

2.5. We are waiting for two working days from the moment the employee received the telegram and verbally requested an explanation.

2.6. After two working days, call the employee on the speakerphone again, in the presence of two more people.

2.7. Compiled an act in the composition of a commission of three people about the employee's refusal to give an explanation.

2.8. Published by disciplinary order - dismissal... The order is announced in the following ways (all together):

2.8.1. On the speakerphone in the presence of two more people. Compiled the act of announcing the order.

2.8.2. One copy of the order in a letter with an inventory and delivery receipt.

2.8.3.By telegram.

2.8.4. By courier.

2.8.5.E-mail.

2.8.6. It is also possible to visit the employee.

2.9. Together with the order, the employee is sent notification of the need to appear forlaborbook or agree to send it by mail(Article 84.1 of the Labor Code of the Russian Federation).

2.10. The remaining salary, including vacation pay, is transferred to the card.

Thus, the procedure for terminating an employment contract with an employee under clause 5 of article 81 of the Labor Code of the Russian Federation (dismissal of an employee) is rather complicated and cannot be correctly implemented without the participation of a professional lawyer in labor law.

NLA (normative legal acts)

Article 81. Termination of an employment contract on the initiative of the employer

An employment contract can be terminated by the employer in the following cases:

5) repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary sanction;

Article 192. Disciplinary sanctions

For the commission of a disciplinary offense, that is, non-performance or improper performance by an employee through his fault of the labor duties assigned to him, the employer has the right to apply the following disciplinary sanctions:

1) remark;

2) a reprimand;

3) dismissal on appropriate grounds.

Article 193. Procedure for the application of disciplinary sanctions

Before a disciplinary action is taken, the employer must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee's failure to provide an explanation is not an obstacle to disciplinary action.

A disciplinary penalty is applied no later than one month from the date of discovery of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time required to take into account the opinion of the representative body of employees.

Disciplinary sanction cannot be applied later than six months from the date of the misconduct, and according to the results of the audit, financial and economic activity or an audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Only one disciplinary sanction may be applied for each disciplinary offense.

The employer's order (order) on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (order) against signature, then a corresponding act is drawn up.

A disciplinary sanction may be appealed by an employee to the state labor inspectorate and (or) bodies for the consideration of individual labor disputes.

Ph.D. Prikhodin S.A.

PB LAWYER

25.06.2009

Tel. 517-36-96

e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it, Attention to Mr. S. A. Prikhodin

When a worker regularly and without good reason does not perform his or her official duties, he is threatened with dismissal at the initiative of the employer in accordance with paragraph 5 of Art. 81 TC. What do you need to know about this article?

Main provisions

In the 81st article of the Labor Code, a list of options is spelled out when the boss has the right to take the initiative and carry out the procedure for dismissing an employee.

It contains 14 items, which are divided into two groups:

grounds applicable to all employees;
grounds that apply to individual positions.

There are two types of grounds for removal from office:

associated with the actions of the employee;
not related to the actions of the employee.

The dismissal of an employee due to his guilty actions is spelled out in paragraphs. 5-6, 11. A guilty act in the legal sphere is a deliberate and volitional act of a person that is contrary to the law or contract.

Clause 5 stipulates the possibility of dismissing an employee if he systematically fails to fulfill his official obligations without a good reason.

The duties of the employee are spelled out in the employment contract and in the internal regulations of the enterprise. Among them are the following:

absence in work time at the post;
refusal to fulfill their duties;
refusal of medical examinations, tests of knowledge of TB (safety precautions) required for a specific place of work.

Dismissal under clause 5 of h. 1 of Art. 81 of the Labor Code of the Russian Federation occurs in such cases:

for offenses committed more than once;
with a previous disciplinary penalty.

Therefore, the absence of disciplinary punishment makes the application of this clause impossible.

Disciplinary action usually consists of a reprimand or reprimand. For certain categories of workers, this concept is expanding.

Clause 6 declares the ability to fire a person in case of gross violations of official obligations, for example, the following:

presence at work drunk or under the influence of drugs;
disclosure of corporate secrets;
violation of safety measures.

The grounds entailing the dismissal of an employee without his fault include:

inconsistency of the worker with the position received;
company closure;
staff reductions.

Fraudulent actions, for example, the provision of forged documents and false data, when signing an employment contract are also grounds for dismissal, according to the Labor Code (clause 1).

Arbitrage practice

When considering the claim of a person who was fired, the judge pays attention to whether there were disciplinary punishments.

In judicial practice, the defendant must provide the following evidence:

The violation committed by the employee was in fact and can be considered grounds for dismissal.
The employer complied with all the deadlines for penalties.

In judicial practice, there are often lawsuits regarding illegal reductions for non-fulfillment official duties... The plaintiff has the right to challenge both the illegality of the decision to remove himself and the illegality of all previous penalties. In the latter case, all disciplinary charges will be considered at a court hearing.

Important! With a positive verdict, the employee can be reinstated. He also has the right to ask for compensation for moral damage caused by illegal punishment and loss of work.

How are penalties applied?

The disciplinary sanctions received by the offender upon the first violation are imposed as follows:

The term of collection is a month from the date of detection of the offense.
The day of detection of the misconduct is considered the day on which the boss discovered the misconduct.
Sick leave and leave are not included in the monthly penalty period. But days off are included.
Leave that interrupts the monthly period includes all types of leave (annual, for studies, and others).

Labor Code Russian Federation allows the employer to dismiss his employees on his own initiative, in accordance with Article 81.

Paragraph 5, which concerns dismissal for non-performance of work obligations without a good reason, provides for the prior imposition of a fine or other disciplinary punishment.

The company or organization must have evidence that the employee actually committed the wrongdoing described in the law.

Dismissal can be challenged in court if appropriate evidence is provided.

New edition Art. 81 of the Labor Code of the Russian Federation

An employment contract may be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction of the number or staff of employees of an organization, an individual entrepreneur;

3) inconsistency of the employee with the position held or work performed due to insufficient qualifications, confirmed by the results of certification;

4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary sanction;

6) a single gross violation of labor duties by an employee:

a) truancy, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its (her) 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 );

b) the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic, drug or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;

d) committing at the place of work theft (including small) someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) violation of labor protection requirements established by the labor protection commission or the labor protection authorized by the employee, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences;

7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to the loss of confidence in him on the part of the employer;

7.1) the employee's failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to submit or submit incomplete or inaccurate information about his income, expenses, property and property obligations, or failure to submit or submit deliberately incomplete or inaccurate information on income, expenses, on property and property obligations of their spouse and minor children, opening (having) accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation, owning and (or) using foreign financial instruments an employee, his spouse (wife) and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to for the loss of confidence in the employee on the part of the employer. The concept of "foreign financial instruments" is used in this Code in the meaning determined by the Federal Law of May 7, 2013 N 79-FZ "On the prohibition of certain categories of persons to open and have accounts (deposits), keep cash cash and values in foreign banks located outside the territory of the Russian Federation, to own and (or) use foreign financial instruments ";

8) an employee performing educational functions has committed an immoral offense incompatible with the continuation of this work;

9) adoption of 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;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their job duties;

11) submission by the employee to the employer of false documents when concluding an employment contract;

12) has become invalid;

13) provided for by an employment contract with the head of the organization, members of the collegial executive body organizations;

14) in other cases established by this Code and other federal laws.

The procedure for attestation (paragraph 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing norms labor law, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job) , which the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the area. The employer is obliged to offer vacancies in other localities if it is provided for by the collective agreement, agreements, labor contract.

In the event of the termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where the culpable acts giving grounds for loss of confidence, or, accordingly, an immoral misconduct were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of labor duties, not allowed later than one year from the date of discovery of the misconduct by the employer.

The dismissal of an employee at the initiative of the employer (except for the case of liquidation of the organization or the termination of activities by an individual entrepreneur) is not allowed during the period of his temporary disability and during the period of being on vacation.

Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of Federal Law No. 273-FZ of December 25, 2008 "On combating corruption".

Commentary on Article 81 of the Labor Code of the Russian Federation

The procedure for terminating an employment contract on the initiative of the employer is determined by Article 81 of the Labor Code of the Russian Federation. The fundamental difference between this article and the one discussed above is that in all the cases listed below, the early termination of the employment contract is carried out at the initiative of the employer, although the motives of the latter's actions may be very different.

Meanwhile, as practice shows, the basis for the early termination of most employment contracts is precisely the paragraphs (subparagraphs) of Article 81 of the Labor Code of the Russian Federation.

We emphasize that the dismissal of an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or the termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and during the period of vacation is not allowed. The main situations associated with the dismissal of an employee at the initiative of the employer are discussed below.

with the liquidation of the enterprise (termination of activities

employer - an individual)

Early termination of an employment contract in connection with the liquidation of an enterprise (termination of activities by an employer - individual entrepreneur) (clause 1 of part one of article 81 of the Labor Code of the Russian Federation) upon the occurrence of appropriate circumstances is made in relation to all employees.

This, in principle, distinguishes the named basis from other ones provided for in Article 81 of the Labor Code of the Russian Federation. Let us clarify that in the general case, the liquidation of an enterprise is nothing more than its termination (termination of its activities) as a legal entity without the transfer of powers (rights and obligations of the enterprise) by way of succession to any other persons, undertaken in the manner prescribed by law , by decision of the body authorized to do so in accordance with constituent documents, or by court order.

The liquidation of the enterprise is considered completed, and the enterprise ceased to exist from the moment the state registration authority makes a corresponding entry in the Unified State Register of Legal Entities.

It should be emphasized that the dismissal of employees on this basis, on the one hand, is carried out regardless of whether these employees are at work or are temporarily absent for valid reasons (due to illness, on vacation, etc.), and on the other hand, provides for the provision of appropriate guarantees and compensations to the dismissed.

The basis for initiating the procedure for dismissing employees on the basis provided for in paragraph 1 of part one of Article 81 of the Labor Code of Russia is the decision to liquidate the enterprise, made in the manner prescribed by law by authorized bodies (persons). As a rule, such a decision is made either by the founders (participants) of the enterprise (the body of the enterprise with the appropriate powers), or by the court.

Employees must be warned by the employer about the upcoming liquidation in strict accordance with the regulations. Such a warning should:

be personal;

be communicated to each employee in writing and against signature no later than 2 months before the expected date of dismissal.

At the same time - with the written consent of the employee - his dismissal is allowed before the expiration of the specified period with simultaneous payment to him additional compensation in the amount of the employee's average earnings, calculated in proportion to the time remaining before the expiration of the notice of dismissal. However, employees should be aware that they have the right to apply to the employer with appropriate statements.

Obviously, the employer should inform the workers about this in advance.

Thus, the employer has the right to dismiss earlier other employees who have stated in writing their consent to the unannounced dismissal procedure. However, it should be borne in mind that prior to the issuance of the relevant order, an employee who previously agreed with the unannounced order of dismissal has the right to withdraw his application by notifying the employer in writing.

Employees who have not submitted appropriate written applications should be sent warnings by the employer about the upcoming dismissal in connection with the liquidation of the enterprise. If the employee refuses to sign (from receiving notification), an act is drawn up about this.

It is necessary to clarify that in relation to certain categories of employees, the periods of warning about the upcoming dismissal in connection with the liquidation of the enterprise may be reduced. For example, in accordance with such a warning should be sent to an employee who has entered into an employment contract for a period of up to two months, no later than three days before the expected date of dismissal, and for seasonal workers, this period, according to, should be at least seven days. Dismissal of an employee in connection with the liquidation of an enterprise, as in the previously considered cases, is formalized by an order (decree) on the termination of the employment contract, the content of which is announced to the dismissed against signature. On the basis of the order (instruction), other necessary documents are drawn up.

Upon termination of employment contracts in connection with the liquidation of the enterprise, the dismissed employees. In addition, employees retain their average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay).

At the same time, employees who have entered into an employment contract for a period of up to two months are subject to dismissal without payment of severance pay, unless otherwise provided by the relevant federal laws, a collective agreement or an employment contract previously concluded with this employee. For seasonal workers, this benefit is paid at the rate of two weeks' average earnings.

Summing up the paragraph, we note that when a branch, a representative office (another separate structural unit) of an enterprise located in another locality ceases to operate, the head organizes the termination of employment contracts with employees of the corresponding structural divisions according to the rules provided for cases of liquidation of the enterprise. Corresponding orders are also issued on the dismissal of these workers.

Early termination of an employment contract due to

with a reduction in the number (staff) of employees of the enterprise

(individual entrepreneur)

Let us turn further to the consideration of the procedure for early termination of an employment contract in connection with a reduction in the number (staff) of employees of an enterprise (individual entrepreneur) (clause 2 of part one of article 81 of the Labor Code of the Russian Federation). In this case, the termination procedure is initiated by the employer in relation to employees who are "eligible" for redundancy.

Let us clarify that the dismissal of an employee to reduce the number of employees implies a decrease in the number of units in the relevant specialty (position, profession), for example, due to a decrease in the volume of work performed and the fund wages... With a reduction in the number of vacancies are first reduced in a given specialty, and then, if there is a need, and employed by "live" workers. In turn, the dismissal of an employee to reduce staff presupposes the elimination of his position. It is indicative that the total number of employees in this case may not decrease, since new units can be simultaneously introduced into the staffing table.

In the general case, the right to determine the number and state is given to the employer. For this purpose, from time to time, he may carry out certain organizational measures aimed at changing (including reducing) the number or staff of employees.

Depending on the reasons and goals, the reduction in the number or staff of the enterprise can be more or less significant. The decision to reduce the number or staff (on the implementation of appropriate measures) comes into force from the moment the head of the enterprise issues an order on the introduction of a new staffing table(with the obligatory indication of the date of its entry into force).

However, prior to the issuance of the relevant order, the employer must organize work aimed at ensuring the legality of changes due to the reduction in the number or staff of the enterprise.

It should be emphasized that the dismissal of an employee to reduce the number or staff is considered as properly justified if, for one reason or another, a certain number of units for the corresponding position (specialty, profession) should really be reduced at the enterprise. At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the basis under consideration, the employee must be offered in writing other work available to the employer, which the employee can perform, taking into account the state of health and qualifications.

Let us clarify that the following can be attributed to the number of circumstances that, in principle, make it possible from a legal point of view to dismiss an employee due to a reduction in the number or staff of an enterprise:

1. The employee has no preferential rights to retain his job (position) in the face of redundancy.

2. The employer has no other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the written consent of the latter for transfer).

3. The employee's refusal to give written consent to the transfer to another job offered by the employer (taking into account the health status and qualifications of the employee).

4. Notification of the employee about the upcoming dismissal in the manner prescribed by law.

If the employee is a member of the trade union organization of the enterprise, then the decision to dismiss the employee on the grounds provided for in paragraph 2 of part one of Article 81 of the Labor Code of the Russian Federation is made by the employer, taking into account the reasoned opinion of the relevant trade union body in accordance with (see below). Such an opinion can be brought to the attention of the employer in the form of a properly executed extract from the minutes of the meeting of the trade union committee.

When deciding on the dismissal of an employee, the employer must, in addition, be guided by the establishment of preferential rights in relation to certain categories of employees to keep them at work while reducing the number or staff.

As follows from the above article, when the number or staff is reduced, the priority right to remain at work is given to "workers with higher productivity and qualifications." With documented equal indicators of labor productivity and equal qualifications of workers considered as candidates for dismissal due to a reduction in the number or staff, the priority right to continue work is enjoyed by:

family workers - if there are two or more disabled family members in their families who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood;

family workers with no other self-employed workers in the family;

employees who received a work injury (occupational disease) during the period of work with this employer;

disabled workers of the Great Patriotic War(military operations to defend the Fatherland);

employees who improve their qualifications in the direction determined by the employer, without interrupting work;

employees who are spouses of military personnel (in state organizations, military units);

workers from among citizens who were previously dismissed from military service, as well as members of their families at work, where they entered for the first time after being dismissed from military service;

workers are single mothers of conscripts;

workers from among persons who have received or have had radiation sickness and other diseases associated with radiation exposure (exposed to radiation).

Note also that the collective agreement (agreement) may also determine other categories of workers who, when the number or staff are reduced, have the preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The further procedure for the employer's actions involves:

1. Determination (taking into account the above) of workers to be transferred to vacant positions (with their consent and if there are vacancies at the enterprise corresponding to their state of health and skill level).

2. Bringing to the notice of these employees lists of vacant positions (personally, in writing, against signature and taking into account the date of the alleged dismissal of this or that employee in case of disagreement with the transfer).

3. Consideration of written statements of employees on consent (disagreement) with the transfer to other positions.

4. Issuance of orders (orders) on the transfer of employees who have expressed their consent to that, to other positions, as well as orders (orders) on the dismissal of those employees who, for one reason or another, cannot be transferred to other positions that are not subject to reduction.

The new owner can (but is not obliged) to offer employees who are subject to dismissal on the basis under consideration, another job available at the enterprise. Whether or not to agree with this proposal is up to the employee, guided by personal motives. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues an appropriate order (order). On the basis of the order (instruction) on dismissal, other necessary documents are drawn up.

In conclusion, we note that the employee, on his own initiative, can apply to the new owner of the property with a request for early termination of the employment contract. In this case, with the consent of the employer, the employment contract with the employee is also subject to early termination on the grounds provided.

The same right, however, can also be exercised by other employees of the enterprise, and not only those listed in paragraph 4 of part one of Art. 81 of the Labor Code of Russia. However, we emphasize again that the latter situation is fundamentally different from that described in the framework of this paragraph, since the initiative for early termination of the employment contract on the basis provided for in paragraph 6 of the first part of Article 77 of the Labor Code of the Russian Federation belongs to the employee, and not to the employer.

Early termination of an employment contract due to

with repeated failure by the employee without

good reasons for work duties

Now let's dwell on the early termination of the employment contract due to repeated non-performance by the employee without good reason of his labor obligations (clause 5 of the first part of Article 81 of the Labor Code of the Russian Federation), which - we emphasize this especially - is allowed only if this employee has a disciplinary penalty ... In practice, this means that an employee who is noticed for the first time in non-fulfillment of labor duties without good reason cannot be immediately dismissed by the employer, except in cases where such failure is associated with a gross violation of his labor duties by the worker.

It goes without saying that the relevant circumstances that are significant to ensure the legality of the early termination of the employment contract on the basis provided for in paragraph 5 of the first part of Article 81 of the Labor Code of the Russian Federation must be documented. The following documents can be considered as relevant documents:

a duly executed act on the previous case of the employee's failure to fulfill his job duties without good reason (preferably with a mark on the employee's familiarization with the content of this document);

a properly executed order (order) on the disciplinary punishment of the employee with a note on the familiarization of the employee with its content;

documents confirming that labor duties were not fulfilled by this employee in the absence of valid reasons;

other documents directly related to the circumstances under consideration (confirming that these circumstances took place).

It should also be recalled that, in accordance with the dismissal of an employee on the prescribed grounds, in turn, is also a disciplinary sanction. General order the application of disciplinary action is determined.

When dismissing an employee who is a member of a trade union organization of an enterprise on the basis provided for in paragraph 5 of part one of Article 81 of the Labor Code of the Russian Federation, the employer must take into account the reasoned opinion of the relevant trade union body. On the dismissal of an employee, the employer (in this case, the new owner of the enterprise) issues an appropriate order (order), on the basis of which other necessary documents are drawn up.

Early termination of an employment contract due to

with a single gross violation by an employee

job responsibilities

It seems appropriate to devote the next paragraph of the reference book to the consideration of the procedure for early termination of an employment contract in connection with a single gross violation of labor duties by an employee (clause 6 of part one of article 81 of the Labor Code of the Russian Federation). Note that this clause provides for several grounds for dismissing an employee guilty of committing a gross violation of labor duties, namely:

Absenteeism, i.e. absence of an employee at the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in the absence of an employee at the workplace without good reason for more than four hours in a row during the working day (shift) (subparagraph "a "paragraph 6);

the appearance of an employee at work (at his workplace or on the territory of an organization - an employer or an object where, on behalf of the employer, an employee must perform a labor function) in a state of alcoholic (drug or other toxic) intoxication (subparagraph "b" of paragraph 6);

disclosure by an employee of a secret protected by law (including state, commercial, official and other) that has become known to him in connection with the performance of his job duties, including the disclosure of personal data of another employee (subparagraph "c" of paragraph 6);

the commission by an employee at the place of work of theft (including minor) of someone else's property, its embezzlement or deliberate destruction (damage), established by a court verdict that has entered into legal force or by a decision of a judge, body, official authorized to consider cases of administrative offenses (subparagraph "d "paragraph 6);

violation of labor protection requirements by an employee established by the labor protection commission (authorized), if the violation entailed grave consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of their occurrence (subparagraph "e" of paragraph 6).

The employer has the right to initiate the procedure for early termination of the employment contract in relation to an employee on the basis of documents proving the latter's guilt in committing actions (occurrence of circumstances) and, thus, making it possible to dismiss the guilty on the grounds provided for in paragraph 6 of the first part of Article 81 of the Labor Code of the Russian Federation ... Such documents may include, for example, the following:

an act confirming the fact that the employee is absent from the workplace without good reason during the entire working day (shift), regardless of its (her) duration, as well as in case of absence from the workplace without good reason for more than four hours in a row during the working day;

a medical report on the results of the examination of an employee who appears at work in a state of alcoholic (drug or other toxic) intoxication;

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of disclosure by the employee of secrets protected by law (including state, commercial, official and other), which became known to him in connection with the performance of his job duties;

a court verdict (a resolution of a body authorized to apply administrative penalties), which entered into legal force and confirms the fact that the employee at the place of work committed theft (including minor) other people's property, wasted or deliberately destroyed (damaged);

conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of violation by the employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.

All listed documents must be properly executed. In addition, it is necessary to draw the attention of dear readers to the fact that, as in the case considered in the framework of the previous paragraph, dismissal on the basis provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, in the implementation of the procedure early termination of the employment contract, the employer is obliged to adhere to the procedure for the application of disciplinary sanctions, determined by article 193 of the Labor Code of the Russian Federation.

So, despite the fact that in subparagraph "a" of paragraph 6 it is clearly defined what should be considered absenteeism, when making a final decision on the dismissal of an employee on an appropriate basis, the employer should first pay attention to some other circumstances. For example, it cannot be qualified as absence from work suspension due to a delay in the payment of wages for more than 15 days, provided that the employee informed the employer in advance of his intention in writing (see in this regard). The employee has the right to refuse to perform work (labor function) that is not stipulated by the employment contract concluded with him, and, therefore, may, in this regard, be absent from the workplace on legal grounds (see in this regard).

On the other hand, the employer has the right to consider as absenteeism the abandonment by the employee of work (and, accordingly, of the workplace), undertaken by the latter without a written warning to the employer about his intention to terminate the employment contract on his own initiative at least two weeks in advance.

The fact that an employee appears at work in a state of alcoholic (narcotic or other toxic) intoxication (subparagraph "b" of paragraph 6) can be confirmed not only by a medical opinion, but also by a properly executed act. , i.e. do not allow him to the workplace as soon as it becomes obvious, for example, by some specific external signs that the latter has consumed alcohol (drugs, etc.).

In the event that the employee has not been suspended from work, the employer is liable for the possible consequences of his performance in a state of intoxication. In the future, the employee may be allowed to perform work as soon as the circumstances that prevent it from doing so disappear. However, this does not deprive the employer of the right to fire an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, the subsequent medical report does not confirm the fact of his intoxication, then the employer has no right to continue to deny the employee access to the workplace to perform the work entrusted to him in accordance with the employment contract (labor function ).

Dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph "c" of paragraph 6) is allowed if the following circumstances take place:

1. An employment contract (either a corresponding agreement to it, or an additional contract with respect to an employment contract, for example, provided for in the Instruction on the procedure for admission officials and citizens of the Russian Federation to a state secret, approved by Decree of the Government of the Russian Federation of October 28, 1995 N 1050) contains a condition on the inadmissibility of the employee's disclosure of information constituting a secret protected by law.

2. The relevant information was indeed entrusted to the employee in order to properly perform the work assigned to him (labor function), while the employee was aware that the specified information constituted a secret protected by law.

3. The fact of the employee's disclosure of relevant information, for example, the personal data of another employee, is documented.

The most indisputable from a legal point of view (among the grounds provided for by subparagraphs of paragraph 6) is the early termination of an employment contract with an employee found guilty of theft (including small) property of others at the place of work, its embezzlement or deliberate destruction (damage) established a court verdict that has entered into legal force or a decision of a judge, body or official authorized to apply administrative penalties (subparagraph "d" of paragraph 6). In this case, the employer is guided by documents issued in accordance with the established procedure by authorized bodies.

It should be emphasized that in this case the Labor Code makes no distinction as to whether the stolen (damaged, destroyed or wasted) property belonged to the employer or to another person (for example, another employee of the enterprise). The main thing is that the appropriate action should be committed by the culprit at the place of work (which, of course, should be understood not as a workplace, but as an enterprise where the employee works).

It is also necessary to draw the attention of dear readers to the legal subtlety regarding the choice of grounds for dismissing an employee. A person guilty of committing unlawful acts in relation to someone else's property at the place of work is subject to dismissal on the grounds provided for in subparagraph "d" of paragraph 6, only if the court verdict that has entered into legal force indicates that the employee is sentenced to a punishment that does not exclude the possibility of continuing an employee of the work assigned to him in accordance with the employment contract. This circumstance must be taken into account when issuing a dismissal order and, in particular, when making appropriate entries in the work book.

And finally, on the early termination of the employment contract on the grounds provided for in subparagraph "e" of paragraph 6. Dismissal on the indicated grounds of an employee who violated labor protection requirements, which had serious consequences or knowingly created a threat of such consequences, is allowed if:

1. The employee was in the prescribed manner.

2. The employer has provided the employee with occupational safety and conditions that meet the requirements of occupational health and safety.

3. Violation of these requirements by the employee really entailed grave consequences or created a real threat for their occurrence.

4. The above circumstances have been documented: a properly executed act on an industrial accident, an expert opinion issued by authorized body, by the decree of the state inspector for labor protection, etc.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with the commission of guilty actions by an employee, directly

serving monetary or commodity values

In accordance with paragraph 7 of the first part of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract ahead of schedule in connection with the commission of guilty actions by an employee who directly serves monetary or commodity values, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. In general, the dismissal of an employee on the specified basis is allowed provided that:

the employee, according to the employment contract concluded with him, was entrusted with the performance of work (labor function), providing for the direct maintenance of monetary (commodity) values, and he actually performed the relevant work, which is documented;

the fact that the employee commits guilty actions is duly recorded in the documents;

the commission of guilty acts gives the employer a reason to lose confidence in this employee.

We emphasize again that the documents that appear as evidence of the employee's guilt must be properly executed. At the same time, it is necessary to pay attention to the fact that the list of circumstances, the occurrence of which can, in principle, be considered by the employer as giving rise to the loss of confidence in relation to this or that employee (taking into account the above), is actually more extensive than it can seem to dear readers at first glance. So, law enforcement practice recent years indicates that employers may take into account as such circumstances:

circumstances that in themselves indicate the illegal nature of the employee's actions, namely: receiving payment for goods (services) sold without the appropriate documents, underfilling, measuring, body kit, shortage, violation of the rules for the sale of alcoholic beverages and cigarettes, violation of the rules for issuing narcotic drugs and the like;

circumstances indicating the employee's negligent attitude towards his labor duties, which, in turn, gives the employee grounds for loss of confidence, including: receiving and issuing money without proper registration, keeping keys from premises with material (monetary) values in improper a place, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in an inappropriate condition, which makes it possible for their theft (loss), etc.;

circumstances indicating the use by the employee of the property entrusted to him for direct service for personal purposes.

It should also be emphasized that in accordance with the provision of the Labor Code under consideration, no distinction is made as to whether the guilty acts were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. - the basis for early termination an employment contract consists in the very fact of committing a culpable act by one or another employee and its corresponding (documentary) confirmation. It is also immaterial whether an agreement on full financial responsibility was previously concluded with the guilty employee or not. Finally, it does not matter whether the work involving the direct maintenance of material (monetary) values by the guilty employee was the main one or the latter performed it concurrently.

On the other hand, the dismissal of certain categories of employees on the grounds provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation cannot be implemented due to the fact that they cannot be entrusted (entrusted) with performing the relevant types of work.

Summing up, let us note that in order to make a decision to dismiss the guilty employee due to the loss of trust in him or her to the employer, as a rule, the documents listed above are sufficient, i.e. such a decision may also be made in the absence of a final court verdict, as provided for in subparagraph "d" of paragraph 6 (see earlier). However, in the event that the fact of the employee's culpable actions (embezzlement, bribery, other mercenary offenses) is established in the manner prescribed by law, the culprit may be dismissed due to loss of confidence and if the commission of such actions is not related to the performance of service work. material (monetary) values.

If the culpable actions giving rise to the loss of trust were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then dismissal on the basis provided for in paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation is allowed in within one year, calculated from the date when the employer became aware of the employee's misconduct (see part five of Article 81 of the Labor Code of the Russian Federation).

Early termination of an employment contract due to

with the commission of an employee performing educational

function, immoral misconduct

Early termination of an employment contract in connection with an immoral offense committed by an employee performing educational functions (clause 8 of part one of article 81 of the Labor Code of the Russian Federation) is made if such an act is incompatible with the continuation of this work. It is noteworthy that this provision of the Labor Code does not specify under what circumstances - related or not related to the performance of the assigned work (labor function) - this or that employee committed a misconduct.

At the same time, an employee of an educational institution (institution) who, in accordance with an employment contract, is entrusted with work (labor function) not related to the upbringing of the wards, cannot be dismissed on the basis indicated. Accordingly, early termination of labor contracts with employees from the administration of institutions (institutions), as well as with technical (service) personnel in connection with their immoral misconduct, is not allowed.

The fact of the employee's immoral offense must be documented, for example, by materials official investigation... The conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the employee's committing an immoral misconduct with the continuation of his previous work.

This takes into account the circumstances of the immoral offense, the degree of its severity, as well as whether the employee had previously committed such offenses. As a rule, when an employer makes a decision to dismiss, it is also taken into account from which side the employee has proven himself in the eyes of colleagues and wards.

If the immoral offense was committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, then dismissal on the basis provided for in paragraph 8 of part one of Art. 81 of the Labor Code, is allowed for one year, calculated from the date when the employer became aware of the employee's misconduct.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

when the employee makes an unreasonable decision that entailed

a violation of the safety of property, unlawful

its use or other damage to the property of the enterprise

Let us turn further to the consideration of the procedure for early termination of the employment contract in connection with the adoption by the employee - the head of the enterprise (branch, representative office), his deputies and the chief accountant - an unreasonable decision, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the enterprise (p. 9 of the first part of Article 81 of the Labor Code of the Russian Federation). As the name suggests, dismissal on this basis applies only to strictly defined categories of employees of the enterprise. To ensure the legality of dismissal on this basis, the following seems essential:

1. The employee, in accordance with the employment contract, is empowered to make decisions regarding the disposal of the property of the enterprise (establishing the procedure for the disposal of this property) and actually made such decisions in the course of daily activities.

2. The decision made by the employee and considered by the employer as a circumstance that makes possible the dismissal of the employee on the grounds provided for in paragraph 9 of the first part of Article 81 of the Labor Code of the Russian Federation must be qualified as unfounded.

3. The consequence of the employee's unjustified decision was the violation of the safety of the property of the enterprise, its unlawful use or other damage caused to the property of the enterprise.

4. The above circumstances have been documented.

We add that between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (his property interests), a causal relationship should be clearly visible. In other words, the employee must be held accountable for the decision made by him personally.

As evidenced by law enforcement practice, it is most difficult to establish such a connection in relation to decisions that are not recorded in any management documents, i.e. announced orally. In such cases, the circumstances of the decision-making and its implementation require particularly careful study.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with a single gross violation by an employee - a manager

enterprise (branch, representative office) (his deputy)

their job responsibilities

Let's move on to consider the procedure for early termination of an employment contract in connection with a single gross violation by an employee - the head of an enterprise (branch, representative office) (his deputy) of his labor duties (clause 10 of part one of article 81 of the Labor Code of the Russian Federation). As you can see, the application of this basis for dismissal is even more "selective" in comparison with that discussed in the previous paragraph, since it does not apply to employees holding the position of chief accountant.

The content of the paragraph under consideration does not define what exactly should be considered as a gross violation. Consequently, it is possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list, for example, included in the content of an employment contract concluded with an employee, or being guided by current law enforcement practice. Let us clarify that among the gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies and giving the employer a basis for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation, it has now been adopted include, in particular, the following: violation of labor protection rules, violation of the rules for registering valuables, exceeding official powers or using the latter for personal (selfish) purposes, etc.

Dismissal on the grounds provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation will, of course, be legal if:

1. An employment contract concluded with an employee contains a condition on the latter's obligation to perform certain actions in accordance with the powers granted (or, on the contrary, a condition instructing the employee to refrain from performing certain actions).

2. Committing by the employee of the corresponding violation actually took place, and this fact is documented in the proper form.

Dismissal on this basis will be legal even if the employment contract concluded with the employee specifically states that the commission of such and such actions (refraining from committing them) is qualified as a gross violation and entails the dismissal of the offender under the grounds provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation. At the same time, the inclusion of an appropriate condition in an employment contract should not contradict other provisions of the Labor Code that provide for the possibility of early termination of an employment contract with an employee - the head of an enterprise (branch, representative office) (his deputy) on other grounds.

It is necessary to draw the attention of dear readers to the fact that the basis we are considering gives the employer the right, on his own initiative, to prematurely terminate the employment contract with an employee who has committed a gross violation once. Depending on the circumstances characterizing the violation, the employer decides for himself whether to dismiss the violator or wait until another suitable case presents itself.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract due to

with the employee's presentation to the employer

forged documents at the conclusion of an employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission of false documents by the employee to the employer when concluding an employment contract (clause 11 of part one of article 81 of the Labor Code of the Russian Federation). It should be immediately clarified that the requirements for the composition of documents submitted by the employee when concluding an employment contract, and, therefore, an attempt by the employer to accuse the employee of submitting forged documents, which the employer had no right to insist on, will look untenable from a legal point of view.

Thus, in the event that the employee presented the employer with a fake (relatively speaking, someone else's or fake) employment history or a fake passport and this fact is appropriately documented, for example, by an act of checking a document that is in doubt, then the employer has the right to terminate the employment contract with the specified employee ahead of schedule on the grounds provided for in paragraph 11 of the first part of Article 81 of the Labor Code of the Russian Federation.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract on the grounds

stipulated by an employment contract with

employee - leader (members of the collegial

executive body) of the enterprise

It seems appropriate to devote the next paragraph to the consideration of the procedure for early termination of the employment contract on the grounds provided for by the employment contract with the employee - the head (members of the collegial executive body) of the enterprise (clause 13 of part one of article 81 of the Labor Code of the Russian Federation). Thus, the peculiarity of this paragraph is, firstly, that it can only be applied to dismiss employees from among the leaders (members of the collegial executive body) of the enterprise and, secondly, only on the grounds provided for by labor contracts concluded with by these employees in addition to the general grounds for dismissal.

Note that additional grounds for dismissal are established when concluding an employment contract by agreement between the employee - the head (member of the collegial executive body) and the employer. At the same time, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of workers.

The occurrence of circumstances that make the early termination of an employment contract with an employee - head (member of the collegial executive body) of the enterprise legal, must be documented. At the same time, the forms and methods of their documentary confirmation may be different (see earlier).

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), other necessary documents are drawn up.

Early termination of an employment contract in other cases,

established by law

Let us briefly dwell on the consideration of the procedure for early termination of an employment contract in other cases established by law (clause 14 of part one of article 81 of the Labor Code of the Russian Federation). Earlier, we have already touched upon certain issues related to the dismissal of employees of an enterprise on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

In this case, however, we are talking about situations in which the employer, based on the provisions of the law, has the right to dismiss the employee on its own initiative, terminating the employment contract with him before the expiration of the term of the latter. In other words, these are situations allowing early dismissal employee on the initiative of the employer and directly provided for by law, with the exception of those discussed earlier.

So, article 33 of the Federal Law of the Russian Federation of July 27, 2004 N 79-FZ "On state civil service The Russian Federation "grants the employer the right to early terminate the employment contract with an employee - a state civil servant on the grounds. The corresponding grounds may be provided for by other laws of the Russian Federation in relation to other categories of employees.

Information about additional grounds for dismissing an employee is recorded in the employment contract. The fact of the onset (identification) of circumstances that allow the dismissal of an employee on one of the additional grounds must be documented.

The employer issues a corresponding order (order) on the dismissal of an employee. On the basis of the order (instruction), the registration of the foreign

Another commentary on Art. 81 of the Labor Code of the Russian Federation

1. Unlike an employee, an employer is significantly limited by law in its ability to terminate an employment contract with an employee. The legislator seeks to ensure, firstly, the stability of the employment relationship, and secondly, the protection of the interests of the employee.

Termination of an employment contract on the initiative of the employer, as a general rule, is possible only on grounds, an exhaustive list of which is established by law, and only if the established procedure for dismissal is observed. An employee dismissed without legal basis or in violation of the order of dismissal, must be reinstated at the previous job.

The legislator formulates three groups of reasons as grounds for dismissing an employee at the initiative of the employer:

a) the culpable actions of the employee;

b) reasons related to the personality of the employee, but which are not the result of his guilty actions;

c) circumstances that do not depend on the personality of the employee.

When formulating the grounds for termination of an employment contract on the initiative of the employer, the legislator takes into account both the personality of the employee and the peculiarities of work caused by the labor function. In this regard, there are general and special grounds for terminating an employment contract at the initiative of the employer. The former can be applied when dismissing any employee, the latter - only employees of certain categories (for example, heads of organizations, persons, labor activity which is associated with the service of monetary or commodity values). General grounds for termination of an employment contract at the initiative of the employer are formulated in Art. 81 of the Labor Code, additional (special) - partly in Art. 81, partially - in the articles of the Code regulating the legal status of certain categories of workers and employers, as well as in other federal laws.

The existence of grounds for dismissal, as a general rule, gives the employer the right, but does not oblige him to terminate the employment contract. Therefore, upon the occurrence of circumstances giving rise to this right of the employer, the latter may either not change the content of the employment contract with the employee at all, limiting himself to applying measures of an organizational and legal nature to him, or, if this circumstance excludes the possibility of the employee retaining his position or work stipulated by the employment contract. , - transfer the employee with his consent to another job. In some cases, the employer has the right to dismiss the employee if the transfer to another job is impossible or the employee refuses to transfer (see paragraph 17 of the commentary to this article).

2. Clause 1 of Art. 81 of the Labor Code of the Russian Federation provides for such a basis for the dismissal of an employee as the liquidation of an organization or the termination of activities by an individual entrepreneur.

The liquidation of an organization (legal entity) is carried out on the grounds and in the manner determined by civil legislation. Liquidation of a legal entity entails its termination without transfer of rights and obligations by way of succession to other persons (clause 1 of article 61 of the Civil Code of the Russian Federation).

As follows from paragraph 2 of Art. 61 of the Civil Code, a legal entity can be liquidated by the decision of both this person (its founders (participants) or the competent authority), and the court, including in the event of its recognition as bankrupt. Labor legislation interprets the dismissal of employees arising from the fact of liquidation of a legal entity as termination of an employment contract with them solely on the initiative of the employer. The liquidation of a legal entity is considered complete, and a legal entity - ceased to exist after making an entry about it in the Unified State Register of Legal Entities (clause 8 of article 63 of the Civil Code of the Russian Federation).

As for the termination of the activity of the employer - an individual, in this case we are talking about the termination of the activity of this person as an individual entrepreneur - in the sense that the concept of the latter is interpreted by the Code (see to it). The death of an employer who is a natural person is an independent ground for termination of an employment contract (see to it).

Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code of the Russian Federation are special subjects of law acting to achieve goals determined by law, including the production of profit, and, accordingly, are obliged in one form or another to carry out state registration (licensing) of their activities. So, it is subject to state registration entrepreneurial activity citizen as an individual entrepreneur or head farms(Article 23 of the Civil Code of the Russian Federation). A special procedure is provided by legislation for acquiring the status of a lawyer (see Federal Law of May 31, 2002 N 63-FZ "On advocacy and the legal profession in the Russian Federation"). On the basis of a license issued in accordance with the established procedure, the activities of notaries are carried out (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries). Accordingly, the termination (or suspension) of the activities of this kind of employers can serve as an independent basis for terminating an employment contract with employees under paragraph 1 of Art. 81 of the Labor Code of the Russian Federation.

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee may be terminated under paragraph 1 of Art. 81 of the Labor Code, in particular, when the activity of an employer - an individual is terminated on the basis of his own decision, as a result of his recognition as insolvent (bankrupt) by a court decision (clause 1 of Article 25 of the Civil Code of the Russian Federation), due to the expiration of the certificate of state registration, refusal to renew a license for certain types of activities (part 3, paragraph 28 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 N 2).

3. Reducing the number or staff of employees of an organization, an individual entrepreneur as a basis for terminating an employment contract is provided for in paragraph 2 of Art. 81 of the Labor Code of the Russian Federation.

The number of employees is determined according to the technological processes and needs applied by the employer. Maintenance his activities.

The staff of employees is a combination of managerial and administrative positions of various levels, as well as specialists. The state is determined, as a rule, by the head through the publication of the staffing table.

When the owner of the organization's property changes, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership (part 4 of article 75 of the Labor Code of the Russian Federation).

When dismissing due to staff reductions, it is necessary to take into account the pre-emptive right of certain categories of workers to remain at work (see article 179 of the Labor Code of the Russian Federation and the commentary to it). However, since by virtue of Part 4 of Art. 81 of the Labor Code of the Russian Federation in the event of the termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of an organization, the rule of Art. 179 of the Labor Code of the Russian Federation in this case does not apply.

It should be borne in mind that if clause 2 of Art. 81 of the Labor Code of the Russian Federation in the previously valid version spoke about reducing the number or staff of the organization's employees, i.e. employer - a legal entity, then at present the specified paragraph applies to the employer - an individual entrepreneur (in the sense in which it is interpreted by Article 20 of the Labor Code of the Russian Federation).

4. By virtue of paragraph 3 of Art. 81 of the Labor Code of the Russian Federation, the inadequacy of the employee for the position held or the work performed may be the result of insufficient qualifications. On the dismissal of an employee in connection with the refusal to transfer to another job due to a changed state of health, see Art. 73, paragraph 8 of Art. 77 and a commentary to them.

Insufficient level of qualification of the employee must be confirmed by the results of certification.

By the time the Labor Code of the Russian Federation came into force, certification as a form of verification and assessment of the level of qualifications of personnel was used in some areas of professional activity (primarily in the field of state and municipal service) and in relation to certain categories of workers (mainly in relation to specialist employees). The procedure for attestation in these cases is determined centrally (see, for example, Decree of the President of the Russian Federation of February 1, 2005 N 110 "On attestation of state civil servants of the Russian Federation"). At the same time, the possibility of introducing the institute of certification of workers in individual organizations is not excluded (part 1 of paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

In any case, the certification procedure presupposes compliance with the following rules: a) the existence of a regulatory framework (provisions on certification); b) implementation of the certification procedure by the commission created in the manner prescribed by the relevant regulation; c) the general nature of attestation (not individual attestations are subject to attestation, but all (with the exceptions defined in normative order) workers of a certain category); d) the frequency of attestation (employees are attested regularly, as a rule, after a certain period of time after the previous attestation, established in the regulatory order).

Conclusion attestation commission that the employee, in terms of his actual qualifications, does not correspond to the position held or the work performed, gives the employer the right to terminate the employment contract with this employee.

Since, by virtue of the Labor Code of the Russian Federation, termination of an employment contract due to the lack of an employee's appropriate level of qualifications is allowed provided that insufficient qualifications are confirmed by the results of certification, the dismissal of any employee due to inconsistency with the position held or work performed due to insufficient qualifications (clause 3 of Article 81 of the Labor Code RF) is possible subject to preliminary certification and the presence of the conclusion of the certification commission (part 1, clause 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). This provision of the Code actually instructs each employer to take measures aimed at creating the organizational and legal conditions necessary for the certification of all personnel employed by him. employees, because otherwise, he deprives himself of the opportunity to terminate employment contracts with employees on the specified basis.

Judicial practice proceeds from the inadmissibility of termination of an employment contract on grounds of insufficient qualifications with employees who do not have the necessary production experience due to the short duration of their work experience, as well as on the basis of the lack of special education, if it is not, by virtue of the law, a prerequisite when concluding an employment contract.

5. The basis for dismissal on the initiative of the employer is repeated non-performance by the employee without valid reasons of labor duties (clause 5 of article 81 of the Labor Code of the Russian Federation).

The scope of an employee's duties is determined by a number of legal sources. A violation of labor discipline is a failure to perform or improper performance through the fault of an employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, employer's orders, technical rules, etc.).

Such violations include, in particular:

a) the absence of an employee without good reason at work or at the workplace. It should be borne in mind that if in the employment contract concluded with the employee, or in the local normative act the employer (order, schedule, etc.) does not specify the specific workplace of this employee, then in the event of a dispute over the issue of where the employee is obliged to be in the performance of his job duties, one should proceed from the fact that by virtue of the workplace it is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

b) the employee's refusal, without good reason, to perform his job duties in connection with a change in the established procedure in labor standards (see), since by virtue of the employment contract, the employee is obliged to perform the labor function specified in this contract, to comply with the internal labor regulations in force in the organization (see . To her). It should be borne in mind that refusal to continue work in connection with a change in the terms of the employment contract due to changes in the organizational or technological working conditions is not a violation of labor discipline, but serves as the basis for terminating the employment contract in compliance with the procedure provided;

c) refusal or evasion without good reason from medical examination of workers of certain professions, as well as refusal of an employee to undergo special training and exams in labor protection, safety and operating rules during working hours, if this is a prerequisite for admission to work (see Item 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

As noted in the said Resolution (clause 36), when resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full financial responsibility for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the case of when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the fulfillment of duties for the maintenance of material assets is the main labor function of the employee, which is agreed upon when hiring, and in accordance with the current legislation, an agreement on full financial responsibility can be concluded with him, about which the employee knew, the refusal to conclude such an agreement should be considered as non-fulfillment of labor duties with all the ensuing consequences.

If the need to conclude an agreement on full material liability arose after the conclusion of an employment contract with an employee and is due to the fact that, due to the change in the current legislation, the position he occupies or the work performed is included in the list of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer by virtue of Part 3 of Art. 74 is obliged to offer him another job, and in its absence or the employee's refusal from the proposed job, the employment contract is terminated with him in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

The employee's refusal (regardless of the reason) to comply with the employer's order to go to work before the end of the vacation cannot be considered a violation of labor discipline (paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Dismissal for repeated non-performance by an employee of his labor duties is possible if a disciplinary penalty was previously applied to the employee, which at the time of the employee's repeated failure to perform his labor duties without good reason has not been withdrawn and canceled (part 1, clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 city N 2). The list of disciplinary sanctions is established by law ().

Within the meaning of the term itself, "repeated" (ie more than one) failure to perform labor duties may also occur in the event of repeated failure by the employee, without good reason, of the duties assigned to him. Considering that, by virtue of the law, the disciplinary sanction is valid for one year, i.e. 12 months, if the employer did not remove him from the employee ahead of schedule (see article 194 of the Labor Code of the Russian Federation and the commentary to it), the employer's right to terminate the employment contract arises if the employee, within 12 months after the disciplinary sanction was applied to him, again violated labor discipline ... At the same time, recognizing the failure to perform labor duties repeatedly, one should take into account not only the repetition of the violation, but the nature and severity of the offense itself, the employee's previous behavior and other circumstances.

If an employee has repeatedly violated labor discipline, but disciplinary action has not been applied to him, then he cannot be dismissed under paragraph 5 of Art. 81. Violations of labor discipline shall be recognized as repeated if, despite the penalty, the employee's unlawful misconduct continues. In this case, it is allowed to apply a new penalty to him, including dismissal under paragraph 5 of Art. 81 (part 2, clause 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

The employer has the right to apply a disciplinary sanction to the employee even when the latter, before committing the misconduct, submitted an application for termination of the employment contract on his own initiative, since the employment agreement in this case is terminated only after the expiry of the notice of dismissal (part 3, paragraph 33 of the Resolution of the Plenum of the Supreme Court RF dated March 17, 2004 N 2). At the same time, the employee's submission of a resignation letter on their own after the commission of an act that gives the employer grounds for applying a disciplinary sanction to him, including dismissal, cannot be considered forced (see paragraph 4 of the commentary to Article 80 of the Labor Code of the Russian Federation).

The actions of an employee that are not related to his work duties should not be considered as a disciplinary offense. Therefore, you cannot dismiss an employee under paragraph 5 of Art. 81 TC, for example, for improper behavior in everyday life. Termination of an employment contract on this basis is concretized in the norms of the Labor Code governing the legal status teaching staff(see clause 1 of article 336 of the Labor Code of the Russian Federation and a commentary to it).

6. A single gross violation of labor duties by an employee (clause 6 of article 81 of the Labor Code of the Russian Federation) is a reason sufficient to terminate an employment contract with an employee, regardless of whether he had previously had disciplinary penalties. Gross violations are:

1) absenteeism (subparagraph "a" of clause 6 of article 81 of the Labor Code of the Russian Federation). Absenteeism means absence from the workplace without a valid reason during the entire working day (shift). Absenteeism is equivalent to the absence of an employee from the workplace without good reason for more than four hours in a row during the working day (shift). It should be assumed that the workplace in this case means not only the workplace assigned to the employee, but also the one at which the employee was obliged to be by virtue of the instructions of the relevant employee's manager (for the concept of a workplace, see Article 209 of the Labor Code of the Russian Federation and comment To her).

As follows from the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (paragraph 39), dismissal on this basis, in particular, can be made:

a) for absence from work without good reason, i.e. absence from work during the entire working day (shift), regardless of the length of the working day (shift);

b) for finding an employee without good reason for more than four hours in a row during the working day outside the workplace;

c) for the abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without notifying the employer about the termination of the contract, as well as before the expiration of a two-week warning period (part 1 of article 80 of the Labor Code of the Russian Federation);

d) for the abandonment of work without a valid reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract (Article 79, Part 1, Article 80, Article 280, Part 1 article 292, part 1 of article 296 of the Labor Code of the Russian Federation);

e) for unauthorized use of days off (see to it), as well as for unauthorized leave on vacation (see Art. 123 of the Labor Code of the Russian Federation and a commentary to it). At the same time, it should be borne in mind that it is not absenteeism that the employee uses rest days in the case when the employer, in violation of the obligation provided by law, refused to provide them and the time the employee used such days did not depend on the employer's discretion (for example, the refusal to the employee who is the donor to provide in accordance with part 4 of article 186 of the Labor Code of the Russian Federation, a day of rest immediately after each day of donating blood and its components).

When a court is considering a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start it, the employer must provide evidence proving the legality of the transfer itself (see Articles 72.1 and 72.2 of the Labor Code of the Russian Federation and comment to them). If the translation is recognized illegal dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement in his previous job (paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

If, when resolving a dispute about the reinstatement of a person dismissed for absenteeism, and recovering average earnings during the forced absence, it turns out that the absence from the workplace was caused by an unjustifiable reason, but the employer violated the procedure for dismissal, the court, when satisfying the stated requirements, must take into account that the average In such cases, the earnings of a reinstated employee may be recovered not from the first day of absence from work, but from the date of the issuance of the order of dismissal, since only from that time absenteeism is forced (paragraph 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 );

2) appearance at work in a state of alcoholic, narcotic or other toxic intoxication (subparagraph "b" of clause 6 of article 81 of the Labor Code of the Russian Federation).

By virtue of Part 1 of Art. 76 of the Labor Code of the Russian Federation, an employee who appears at work in a state of alcoholic, drug or other toxic intoxication is not allowed by the employer to work on that day (shift). However, in accordance with sub. "b" clause 6 of Art. 81 of the Labor Code of the Russian Federation, workers who were during working hours at the place of performance of labor duties in a drunken state or in a state of narcotic or toxic intoxication may be dismissed, regardless of suspension from work in connection with this condition.

Dismissal on this basis may also follow when the employee during working hours was in such a state not at his workplace, but on the territory of the organization or facility in which, on behalf of the administration, he was supposed to perform a labor function (see paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). It also does not matter when the employee was drunk at work: at the beginning or end of the working day. At the same time, if an employee, being drunk on the territory of an organization or other facility, was absent from his workplace for more than four hours in a row during the working day, the employer has the right to terminate the employment contract with him for absenteeism without good reason.

Drunkenness or drug or toxic intoxication of an employee can be confirmed by both a medical report and other types of evidence;

3) disclosure of secrets protected by law (state, commercial, official and other, including the personal data of another employee or employees), which became known to the employee in connection with the performance of his labor duties (subparagraph "in" clause 6 of article 81 of the Labor Code of the Russian Federation ). On the concept, procedure and conditions for admitting an employee to state, commercial and official secrets, see paragraph 5 of the commentary to Art. 57 of the Labor Code of the Russian Federation.

One of the main and indispensable conditions for the protection of the right to official and commercial secrets in accordance with Art. 139 of the Civil Code of the Russian Federation stands for the adoption by the owner of information of specific measures to protect their confidentiality. These measures are subdivided into organizational (for example, recruiting), technical (using technical means of protecting information) and legal.

Legal measures include:

development and adoption of a special provision on official and commercial secrets;

approval of the list of information constituting an official and commercial secret;

inclusion of conditions on non-disclosure of official and commercial secrets, etc. in the labor contracts of employees.

If the owner of this information (employer) does not take such measures, then he is deprived of the opportunity both to protect his rights in relations with third parties, and to make any claims against own employees who transfer this information to third parties or use it outside the organization.

Accordingly, as indicated in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 (paragraph 43), in the event of an employee challenging the dismissal under sub. "in" clause 6 of Art. 81 of the Code, the employer is obliged to provide evidence that the information that the employee disclosed, in accordance with the current legislation, refers to state, official, commercial or other secrets protected by law or to the personal data of another employee, this information became known to the employee in connection with performance of his labor duties and he pledged not to disclose such information;

4) committing at the place of work theft (including petty) of someone else's property, embezzlement, deliberate destruction or damage (subparagraph "g" of clause 6 of article 81 of the Labor Code of the Russian Federation).

On this basis, employees may be dismissed, whose guilt has been established by a court verdict that has entered into legal force or by a resolution of a body authorized to apply administrative punishments. The commented rule speaks of the theft of someone else's property, without specifying who is the subject of ownership of the property - the employer or a third party (another business entity, another employee).

It is indisputable that property falls under this rule:

a) owned by the employer or in his possession or use on other legal grounds;

b) taken under protection by the employer and for failure to ensure the safety of which he can be held liable (for example, clothes handed over to the wardrobe; equipment belonging to organizations or individuals performing work under civil law contracts on the territory of the organization, the safety of which is guaranteed by the employer; a tool owned by other employees who used it to perform work under an employment contract).

At the same time, the wording of the commented grounds for dismissal does not exclude the possibility of terminating the employment contract with the employee in the event of the theft of any other property located at his place of work.

Taking this into account, the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 indicates (part 2, paragraph 44) that any property that does not belong to this employee, in particular property owned by the employer, other employees, as well as persons who are not employees of this organization.

Since the dismissal under sub. "g" clause 6 of Art. 81 of the Labor Code of the Russian Federation is a disciplinary measure established by law (see Article 193 of the Labor Code of the Russian Federation and the commentary to it) the monthly period for the application of this measure is calculated from the date of entry into force of a court sentence or a decision of a judge, body, official authorized to consider cases on administrative offenses (part 3, clause 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

If a criminal punishment is imposed for the commission of the specified act, by virtue of which the possibility of continuing work is excluded, the employee may be dismissed as per sub. "g" clause 6 of Art. 81, and according to clause 4 of Art. 83 of the Labor Code of the Russian Federation (see Art. 83 of the Labor Code of the Russian Federation and a commentary to it);

5) violation by the employee of labor protection requirements, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or deliberately created a real threat of such consequences (subparagraph "d" of clause 6 of article 81 of the Labor Code of the Russian Federation) ...

In accordance with labor legislation, an employee is obliged to comply with labor protection requirements established by laws and other regulatory legal acts, as well as labor protection rules and instructions (see F and a commentary to it). As follows from this article, the obligation to comply with labor protection requirements applies to all persons who are in labor legal relations, therefore, failure to comply with this obligation by any employee is a disciplinary offense. Accordingly, the employment contract can be terminated with any person who has committed the act specified in sub. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation.

Termination of an employment contract is possible provided that the employee's actions caused the onset of grave consequences or knowingly created a real threat of their occurrence. Consequently, the employer must establish, and in the event of a dispute, prove the existence of: a) illegal actions of the employee; b) grave consequences; c) the necessary causal relationship between the actions of the employee and the resulting consequences. The presence of such circumstances is established by the labor protection commission or the labor protection commissioner in accordance with the established rules (see Articles 217, 218, 227-231 of the Labor Code of the Russian Federation and the commentary to them).

If an employee leaves due to the fact that his actions created a real threat of the onset of grave consequences, firstly, those socially significant interests that were endangered due to the employee's illegal actions should be determined; secondly, the circumstances that prevented the onset of grave consequences. As such, randomly arising factors, actions of other persons or the employee himself, which prevented the onset of grave consequences, can act.

The employer must establish the employee's guilt. It is expressed in the fact that the employee, firstly, was aware or could and should have been aware of the unlawful nature of his actions related to violation of labor protection requirements; secondly, he foresaw or could and should have foreseen the likelihood of grave consequences. In the event that an employee could not and should not have foreseen the onset of grave consequences, he cannot be dismissed on the grounds under consideration, which does not exclude disciplinary liability for violation of labor protection rules.

In the complete absence of the employee's fault, bringing him to justice and terminating the employment contract under Art. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is excluded. Particular cases of this kind are actions of an employee in a state of extreme necessity or actions aimed at fulfilling the order of a competent manager. In the latter case, the employee's liability is excluded provided that he warned his immediate or superior manager about the possibility of a situation that threatens the rights and interests protected by law (see article 214 of the Labor Code of the Russian Federation and the commentary to it).

Since the law connects the actions of an employee with the onset (or the possibility of occurrence) of grave consequences, the existence of grounds for terminating an employment contract with him can be confirmed by a court verdict that has entered into force.

Along with dismissal on the basis under consideration, the relevant guilty officials may be subject to administrative punishment (Article 5.27 of the Administrative Code).

As follows from the content of paragraph 6 of Art. 81 of the Labor Code, the list of cases that are a gross violation of their duties by an employee is exhaustive and is not subject to broad interpretation (paragraph 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). Termination of an employment contract for any of the grounds specified in this paragraph of Art. 81 of the Labor Code, is carried out in the manner prescribed for the application of disciplinary sanctions (see article 195 of the Labor Code of the Russian Federation and the commentary to it).

7. The grounds listed in clauses 1, 2, 3, 5 and 6 of Art. 81 of the Labor Code are among the general grounds for terminating an employment contract at the initiative of the employer. In terms of their content and legal meaning, these grounds presuppose both the presence of the employee's culpable actions and their absence. Along with them, Art. 81 contains a list of special grounds (clauses 4, 7-13) for the dismissal of workers of certain categories in the presence of special ones arising from the peculiarities legal status these workers' conditions. Most of these grounds assume the presence of culpable actions on the part of the employee.

8. Change of ownership of the organization's property (clause 4 of article 81) can serve as a basis for dismissal only of the head of the organization, his deputies and the chief accountant.

Since in accordance with paragraph 1 of Art. 66 and clause 3 of Art. 213 of the Civil Code of the Russian Federation, the owner of the property created at the expense of the contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants by virtue of para. 2 p. 2 art. 48 of the Civil Code of the Russian Federation have only obligations of obligation in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for terminating an employment contract under paragraph 4 of Art. 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property business partnership or the company still remains the partnership itself or the company and the change of the owner of the property does not occur (part 4 of paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

When the owner of the organization's property changes, the new owner, no later than three months from the date of the emergence of his ownership right, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant (see article 75 of the Labor Code of the Russian Federation and the commentary to it). The only legal basis giving rise to the employer's right to terminate the employment contract with the specified persons is the fact of a change in the owner of the organization's property, therefore, for the application of this clause, personal and professional quality dismissed (skill level, discipline, etc.).

Change of ownership of the organization's property is not a basis for terminating contracts with other employees of the organization. If the employee refuses to continue working in connection with a change in the owner of the organization's property, the employment contract is terminated under paragraph 6 of Art. 77 of the Labor Code of the Russian Federation.

For guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract in connection with the change of the owner of the organization, see Art. 181 of the Labor Code of the Russian Federation and a commentary to it.

9. An employee who directly serves monetary or commodity values may be dismissed due to the loss of confidence in him on the part of the employer in the event of a guilty act (clause 7 of article 81).

Dismissal on the specified grounds is possible only in relation to employees directly serving monetary or commodity values (reception, storage, transportation, distribution, etc.), and provided that they have committed such culpable actions that gave the employer grounds for losing confidence in him (part 1, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). As a general rule, such employees are those who belong to the category of persons who bear full financial responsibility for the monetary or commodity values entrusted to them on the basis of special laws or special written agreements (see Articles 242 - 245 of the Labor Code of the Russian Federation and a commentary on them) ...

Accountants, accountants, commodity managers, controllers, markers and other employees cannot be dismissed due to the loss of trust, since material values are not directly entrusted to them.

Loss of trust on the part of the employer should be based on objective evidence of the employee's guilt in causing material damage or committing illegal actions. If the employee's guilt is not established, then he cannot be dismissed on grounds of loss of confidence, despite the presence of a shortage, damage to the entrusted values, etc.

Upon establishing the fact of embezzlement, bribery and other mercenary offenses, the employee may be dismissed on the basis of loss of confidence and in the event that these actions are not related to their work (part 2, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

10. The commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of article 81 of the Labor Code of the Russian Federation) is also a special ground for terminating an employment contract. On this basis, the dismissal of only those employees who are engaged in educational activities, for example, teachers, lecturers, is allowed. educational institutions, masters of industrial training, educators of children's institutions. Employees who do not perform educational functions (including heads of organizations, structural units) are not subject to dismissal on this basis.

An immoral offense is considered to be an offense that contradicts generally accepted moral norms, and it does not matter whether it is related to the work being performed or not (paragraph 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

In particular, an offense of this kind should be considered the use of educational measures that are associated with physical (or) mental violence against the student's personality (see paragraph 2 of Article 336 of the Labor Code of the Russian Federation and the commentary to it). The severity of the misconduct is a matter of fact, subject to assessment, taking into account the specific circumstances, by the person executing the dismissal or by the labor dispute resolution body.

The Supreme Court of the Russian Federation (paragraph 47 of the Resolution of the Plenum of March 17, 2004 N 2), and after it the legislator (see Article 192 of the Labor Code of the Russian Federation and the commentary to it) proceed from the fact that if the guilty actions giving rise to loss of confidence (see clause 9 of the commentary to this article), or an immoral misconduct was committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed from work (respectively, under clauses 7 or 8 Article 81 of the Labor Code of the Russian Federation), subject to the procedure for the application of disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation.

However, given that the termination of the employment contract under clauses 7 and 8 of Art. 81 of the Labor Code of the Russian Federation can also be carried out in the case when the guilty actions giving rise to the loss of confidence, or, accordingly, an immoral misconduct were committed by an employee not at the place of work and not in connection with the performance of his labor duties, dismissal in this case is not a disciplinary measure, the application of which is due to the terms established by the Code, since by virtue of Part 1 of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for non-performance or improper performance by an employee through his fault of the labor duties assigned to him. At the same time, when considering cases on the reinstatement of persons dismissed on these grounds, the courts must take into account the time that has elapsed since the commission of an immoral misconduct or guilty actions of an employee in whom confidence has been lost, his subsequent behavior and other specific circumstances of significance. for the correct resolution of the dispute. Accordingly, by virtue of Part 5 of Art. 81 of the Labor Code of the Russian Federation in the current edition, dismissal in this case is possible no later than one year from the date of the discovery of the misconduct by the employer. The day of detection of the misconduct should be considered the day when the employer became aware or should have become aware of the fact of the misconduct. The circle of relevant officials of the employer should be determined according to the rules established for fixing the day of detection of a disciplinary offense (see article 193 of the Labor Code of the Russian Federation and a commentary to it).

11. The adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant may serve as a basis for terminating the employment contract only if this entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 Article 81 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is possible subject to the following conditions:

Making a decision that was subsequently recognized as unjustified, the employee acted outside the normal production and economic risk or did not at all in accordance with the goals of the employer's economic activity;

The unjustified decision of the employee actually entailed property damage (both positive and in the form of lost profits) to the employer.

When deciding whether there was decision unreasonable, it is necessary to take into account whether the named adverse consequences occurred as a result of this decision and whether they could have been avoided in the event of a different decision. Moreover, if the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (part 2 of paragraph 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

The misuse of property involves its exploitation not in accordance with its functional purpose or to achieve goals that are beyond the economic goals of the employer as the owner of the property. The grounds for termination of the employment contract with these employees takes place in this case due to not only the loss or damage to property, but also the loss of part of its value, i.e. depreciation (amortization). It does not matter who caused the damage - the employee himself or other persons; for dismissal, the fact is sufficient that the decision made by the guilty employee provided an opportunity (served as a necessary condition) for causing damage to the employer.

12. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10 of article 81 of the Labor Code of the Russian Federation) is the basis for terminating the employment contract with a special subject of the employment contract, which in this case are the head of the organization (branch and representations), as well as his deputies.

In accordance with Art. 55 of the Civil Code of the Russian Federation, representative offices and branches of a legal entity act as separate structural divisions. Representative office is separate subdivision a legal entity located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate subdivision of a legal entity located outside its location and performing all its functions or part of them, including the functions of a representative office. Heads of representative offices and branches are appointed legal entity and act on the basis of his power of attorney.

With the heads of other structural divisions and their deputies, as well as the chief accountant of the organization, the labor contract cannot be terminated under paragraph 10 of Art. 81 of the Labor Code of the Russian Federation (part 4, clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

This ground for termination of an employment contract almost textually reproduces the content of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation. Consequently, the head of the organization (branch, representative office) and his deputies can be dismissed either according to clause 6 (when committing a misdemeanor, which is a gross violation), or according to clause 10 of Art. 81 of the Labor Code of the Russian Federation. In the latter case, the basis for making a decision to terminate an employment contract with a manager may be any violation of his labor duties, recognized as gross, including that in accordance with which the employment contract under clause 6 of Art. 81 of the Labor Code of the Russian Federation. The question of the severity of the disciplinary offense, which served as the basis for the dismissal of the employee under paragraph 10 of Art. 81, there is a question of fact, i.e. it is subject to assessment taking into account all the specific circumstances in which it was committed. Such an assessment is made by the person entitled to dismiss, and in the event of a dispute, by the labor dispute resolution body. In this case, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should consider the failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm to the health of employees or to property damage to the organization (parts 2 and 3 p. 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

13. The submission by the employee to the employer of forged documents when concluding an employment contract (clause 11 of article 81 of the Labor Code of the Russian Federation) as a basis for terminating an employment contract on the initiative of the employer means that in this case the grounds for dismissal are the guilty (intentional) actions of the employee.

It should be borne in mind that in accordance with Art. 81 of the Labor Code of the Russian Federation in its current edition, dismissal under paragraph 11 of Art. 81 of the Labor Code of the Russian Federation is possible only if the employee submits to the employer when concluding an employment contract forged documents (for example, when concluding an employment contract, an employee presented a falsified document on special education). When the employer provides deliberately false information that prevents the conclusion of an employment contract, the dismissal is carried out in accordance with the rules established by Art. 84 of the Labor Code of the Russian Federation. The new version of the specified paragraph of Art. 81 of the Labor Code of the Russian Federation raises some doubts, since it levels out the differences in the grounds for terminating the employment contract under this paragraph and in accordance with.

The question remains unclear about the consequences of submitting false documents to the employer when concluding an employment contract. Firstly, such documents can certify that an employee has special knowledge or skills, the possession of which is a prerequisite for concluding an employment contract with him. Accordingly, if the documents are falsified, this is a circumstance that gives rise to the dismissal of this person, not only under paragraph 11 of Art. 81 of the Labor Code, but also under Art. 84 of the Labor Code of the Russian Federation. Secondly, forged documents submitted by a person entering a job may not stipulate the conclusion of an employment contract with him, but at the same time indicate the right to receive any additional benefits and advantages at work. It seems that if such circumstances are discovered, the employee may be dismissed in accordance with paragraph 11 of Art. 81 of the Labor Code of the Russian Federation.

By virtue of part 2 of clause 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2007 N 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents by him, then the employment contract with such an employee is terminated under this clause, and not on the grounds listed in Art. 84 of the Labor Code of the Russian Federation.

14. In accordance with paragraph 13 of Art. 81 labor contracts with the head of the organization, members of the collegial executive body of the organization may be terminated in the cases provided for by the labor contract. Thus, the legislator interprets the termination of an employment contract on the grounds established by the employment contract as one of the special cases of dismissal of an employee at the initiative of the employer. In fact, the employment contract with the head (a member of the collegial executive body of the organization) may provide for cases of termination of the employment contract both at the initiative of the employee and as a result of the onset of circumstances that do not depend either on the will of the employee or on the will of the employer.

15. As follows from paragraph 14 of Art. 81 of the Labor Code, an employment contract on the initiative of the employer may be terminated in cases other than those listed in this article, established by the Labor Code of the Russian Federation and other federal laws. In particular, among such cases - additional grounds for terminating an employment contract with the head of the organization and a member of its collegial executive body (see clauses 1 and 2 of Article 278 of the Labor Code of the Russian Federation and a commentary to them); termination of an employment contract with a part-time employee (see article 288 of the Labor Code of the Russian Federation and a commentary to it); with an employee - a foreign citizen.

A special case of termination of an employment contract is the dismissal of an employee in connection with the attainment of age, which excludes, by virtue of the law, the retention of this work for him.

As a general rule, restrictions on labor rights and freedoms or the provision of any advantages depending on circumstances not related to business qualities employee, including depending on age, are recognized as discrimination and are prohibited (see and commentary to it). It follows from the content of the Constitution that the retirement age cannot serve as an obstacle to the exercise of the right to work by citizens both when concluding an employment contract and when it is terminated. In a number of cases stipulated by federal law, exceptions are allowed from this general rule (for example, upon dismissal of a state or municipal employee, some categories of teachers, etc.).

16. Termination of an employment contract is considered legal provided that, in addition to the existence of a statutory basis, the employer has complied with the established procedure for terminating an employment contract, as well as guarantees upon dismissal established by law for certain categories of employees are provided (see paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 17 March 2004 N 2). This procedure provides for:

a ban on the dismissal of certain categories of workers. Dismissal is not allowed: an employee during the period of his temporary disability and during the period of being on vacation (part 6 of article 81 of the Labor Code of the Russian Federation); pregnant women, as well as women with children under the age of three; single mothers raising a child under the age of 14 (a disabled child - under 18); other persons raising these children without a mother (see to her);

warning about the upcoming dismissal. The specified obligation is imposed on the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction of the number or staff of employees (see to it).

Upon termination of the employment contract on the indicated grounds (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation), employees are warned about the upcoming dismissal by the employer personally against signature at least two months before dismissal. If the term for warning the employee about dismissal is not observed, if he cannot be reinstated at work on other grounds, the court changes the date of his dismissal in such a way that the employment contract is terminated after the expiration of the warning period established by law.

The period for which the employment contract is extended due to the postponement of the dismissal date is payable to the employee based on his average earnings.

In the event of dismissal of employees due to a reduction in the number or staff, the preemptive right to remain at work is taken into account (see article 179 of the Labor Code of the Russian Federation and the commentary to it).

When deciding to reduce the number or staff of the organization's employees and the possible termination of employment contracts with employees in accordance with paragraph 2 of Art. 81 employers are obliged to inform the trade union body of the primary trade union organization about this in writing no later than two months, and in case of mass dismissal - no later than three months before the start of the relevant events (see Article 82 of the Labor Code of the Russian Federation and the commentary to it).

When deciding to liquidate the organization, reduce the number or staff of the organization's employees and the possible termination of employment contracts with employees, the employer must inform the employment service about this in writing no later than two months before the start of the relevant events and indicate the position, profession, specialty and qualification requirements for them, the terms of remuneration of each specific employee, and if the decision to reduce the number or staff of the organization's employees may lead to mass layoffs of employees - no later than three months before the start of the relevant measures (paragraph 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 "On employment of the population in the Russian Federation"). On the concept, criteria and organizational and legal consequences of mass layoffs of workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary to them;

compulsory certification. On the conditions and procedure for attestation upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, paragraph 8 of the commentary to Art. 82 TC;

taking measures for the employment of the released employee. In accordance with Part 3 of Art. 81 of the Labor Code of the Russian Federation, dismissal due to a reduction in the number or staff of employees, as well as the inconsistency of the employee with the position or work performed (clauses 2 and 3 of Article 81) is allowed if it is impossible to transfer the employee with his consent to another job.

The same rule applies to the termination of an employment contract with the rector, vice-rector, dean of the faculty, head of the branch (institute), state or municipal educational institution higher vocational education in connection with their reaching the age of 65 years (see Art. 332 of the Labor Code of the Russian Federation and the commentary to it).

Other work means any other work that the employee is able to perform in accordance with his professional qualifications or state of health. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization, corresponding to the qualifications of the employee, and in the absence of such work, another vacant lower position or lower-paid job available in the organization, which the employee can perform taking into account the above factors (p. 29 Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2). In practice, a list of vacancies available to the employer or a notification of their absence is handed to the employee simultaneously with a warning about the upcoming dismissal. The employee's consent to perform a certain job (substitution vacant post) or its refusal new job(position) is recorded in writing and certified by the signature of the employee.

Dismissal of employees in the event of the termination of the activities of a separate structural unit located in another locality is carried out according to the rules provided for cases of liquidation of an organization. This, in particular, means that the employer is released from the obligation to employ the released workers in the organization.

When considering cases on the reinstatement of civil servants dismissed in connection with the liquidation of a state body or the reduction of civil service posts, one should be guided by the provisions of Art. Art. 31, 32 and 38 of the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation".

It should be borne in mind that based on Art. 73 of the aforementioned Federal Law, the Labor Code of the Russian Federation, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms, may be applied to relations associated with the civil service, in part, not regulated by the Federal Law "On the State Civil Service of the Russian Federation" (clause 30 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

Taking into account the motivated opinion of the elected trade union body. On the grounds for participation and the procedure for taking into account the reasoned opinion of an elected trade union body in considering issues related to termination of an employment contract at the initiative of the employer, see Art. , to them.

Obtaining consent by the employer to terminate the employment contract with the employee. Employee representatives participating in collective bargaining negotiations, during the period of their conduct, cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent, except in cases of termination of the employment contract for committing a misdemeanor, for which, in accordance with the Code and other federal laws, dismissal is provided. from work ().

Representatives of employees and their associations participating in the settlement of a collective labor dispute during the period of resolving a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent (see and commentary to it).

Heads (their deputies) of elected collegial bodies primary trade union organizations not released from their main job, during their term of office and within two years after its termination, may be dismissed under paragraphs 2, 3 or 5 of Art. 81 of the Labor Code of the Russian Federation only with the prior consent of the corresponding higher elected trade union body (see paragraph 11 of the commentary to Art. 82; Art., And the commentary to them).