Dismissal for repeated violations of labor discipline. Dismissal for repeated failure to perform labor duties. Imposition of disciplinary action

One of the reasons for dismissal at the initiative of the employer is dismissal due to repeated non-fulfillment job responsibilities if the employee has a disciplinary sanction (clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation). However, upon termination employment contract on this basis, the employer often makes mistakes, due to which the employee can be reinstated in his previous position. In the article, we will consider in detail the procedure for dismissing a negligent employee, and also focus on its individual points.

Instead of a preface

Naturally, the employee must be familiarized with his duties by signing. In particular, Art. 68 of the Labor Code of the Russian Federation requires the employee to familiarize himself with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement. From this we can conclude that if the employment contract contains only the name of the position or profession (type of work), but the functions are not specified, and the employer forgot to familiarize him with the job description, then bring him to disciplinary responsibility for failure to fulfill his labor duties (and even more so to dismiss on p. 5. h. 1 art. 81 of the Labor Code of the Russian Federation) will be very problematic. This conclusion is confirmed and jurisprudence... So, the Perm Regional Court in Determination of May 14, 2014 in case No.  33-4192 declared illegal the orders to impose a penalty and reinstated the employee in his previous position, and also collected wages for the time forced absenteeism and compensation for non-pecuniary damage due to the fact that in the absence of a job description and official acquaintance with their official duties it is impossible to establish the terms of reference of the plaintiff and charge him with the failure to fulfill his obligations.

Can being late for work be considered non-fulfillment of labor duties? Yes, you can. GIT in St. Petersburg explained: since the employee is obliged to comply with the internal labor regulations, being late can be considered a violation labor discipline, for which the employer has the right to bring the employee to disciplinary responsibility, and in case of repeated delay, even dismiss him altogether.

Moreover, according to Clause 35 of Resolution No.  2 non-fulfillment by an employee without good reason is non-fulfillment of labor duties or improper performance through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under the employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.)NS.).

Such violations include, in particular:

a) the absence of an employee without good reason at work or at the workplace;

b) the employee's refusal, without good reason, to perform his job duties in connection with a change in established order labor standards ( Art. 162 of the Labor Code of the Russian Federation), since by virtue of the employment contract, the employee is obliged to fulfill the specified in this contract labor function, comply with the internal labor regulations in force in the organization ( Art. 56 of the Labor Code of the Russian Federation).

We also note that dismissal by p. 5 h. 1 tbsp. 81 of the Labor Code of the Russian Federation is a measure of disciplinary responsibility, which means that the employer is obliged to comply with the procedure for bringing to such, established Art. 192, 193 of the Labor Code of the Russian Federation.

So, the Plenum of the RF Armed Forces in Resolution No.  2 pointed out: when resolving disputes between persons dismissed under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated failure without valid reasons for work duties, 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 work duties without good reason, it has not been canceled and canceled.

Note that if the disciplinary sanction is lifted or the employee violated labor discipline for the first time, then dismissal by p. 5 h. 1 tbsp. 81 of the Labor Code of the Russian Federation is likely to be illegal. For example, the Moscow Regional Court, having reinstated an employee at work, indicated that the dismissal procedure was violated, since the employee violated his labor duties once, that is, there is no repeated ( Appeal ruling dated 04.06.2014 in case No.  33-12256/2014 ).

According to h. 2 p. 33Resolution No.  2 applying a new disciplinary action, including dismissal by p. 5 h. 1 tbsp. 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 on him.

note

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he submitted an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the expiration of the notice of dismissal.

Termination of an employment contract

For your information

According to Art. 194 of the Labor Code of the Russian Federation if, within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, he shall be deemed to have no disciplinary sanction. The employer, before the expiration of a year from the date of application of the disciplinary sanction, has the right to remove him from the employee under own initiative, at the request of the employee himself, at the request of his immediate supervisor or the representative body of employees.

1. We fix the employee's failure to fulfill his job duties. This is usually done by an act, memo or memo. All documents confirming the employee's failure to fulfill his duties must be registered in the manner prescribed by the employer. Let's give an example of such an act.

Society with limited liability"September"

on non-fulfillment of labor duties

I, the head of the marketing department, Dubinin Igor Mikhailovich, in the presence of senior marketer Anna Viktorovna Berezina and brand manager Oksana Ivanovna Lipova, drew up this act on the following.

On August 4, 2014, the head of the marketing department, marketing specialist Ivin Oleg Petrovich, was instructed to collect information from consumers about satisfaction with goods, claims and complaints about goods. The report had to be submitted on August 11th. Contrary to the requirements of clauses 2.5 and 2.7 of the job description, Ivin O. P. did not carry out the named actions to study the demand for goods and submit reports, determined by the job description, and did not submit a report.

Failure to fulfill their job responsibilities marketing specialist Ivin O. P. led to a decrease in the number of buyers, which led to a decrease in sales.

Ivin OP was asked to give a written explanation of the incident.

We confirm the above facts with our signatures:

Dubinin I.M. Dubinin

Berezina A.V. Berezina

Lipova O. I. Lipova

Ivin O. P. refused to sign this act, explaining his refusal by the absence of guilt.

2. Asking for an explanation about non-performance of labor duties. This is best done in writing, although no such requirement has been established. We recommend that you request these explanations in writing so that later, in the event of a labor dispute, the employer can prove that the disciplinary procedure was followed.

So, the notice of the need to provide explanations must be prepared in two copies: the employer gives one copy of the notice to the employee, and on the second copy (the employer's copy) the employee writes that he is familiar with the notice, one copy of it has been received, he puts the date of receipt and the signature.

If the employee provides a written explanation, it is considered by the employer and is registered in accordance with the procedure established by him in the corresponding register. If after two working days the specified explanation is not provided by the employee, an appropriate act is drawn up ( h. 1 tbsp. 193 of the Labor Code of the Russian Federation). Note that if the employee did not provide an explanation, this is not an obstacle to the application of the penalty.

If an explanation is still provided, it is necessary to check the validity of the reason for the employee's failure to fulfill his job duties.

In addition, it is necessary to take into account all the circumstances of the disciplinary offense: the employee's fault, the severity of the offense, the circumstances of its commission, the employee's previous behavior and his attitude to work. For example, in In the ruling of the St. Petersburg City Court dated 04.07.2013 No.  33-9355/2013 order to dismiss an employee NS.5 h. 1 tbsp. 81 of the Labor Code of the Russian Federation was declared unlawful, since the employer did not provide evidence that the employee's repeated tardiness entailed adverse consequences for the organization, that is, the severity of the misconduct, as well as the employee's previous behavior, were not taken into account when deciding on dismissal.

If, after considering all the circumstances of the misconduct, the employer decides to simply punish the employee, a disciplinary order (reprimand or remark) is issued.

The case when a decision was made to fire an employee will be considered further.

3. Check the deadlines for the application of disciplinary action. According to h. 3,4 tbsp. 193 of the Labor Code of the Russian Federation a disciplinary sanction shall be 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. We recall that due to p. 34 of Resolution No.  2 the day of detection of the misdemeanor, 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.

The following shall not be taken into account in the one-month period for the application of a disciplinary sanction:

1. time of illness of the employee and his stay on vacation;
2. the time required to comply with the procedure for taking into account the opinion of the representative body of workers.

It is necessary to remember one more point: the penalty cannot be applied later than six months from the date of the misconduct by the employee, and based on the results of the audit, inspection of financial and economic activities or audit - later than two years from the date of its commission. The indicated time limits do not include the time of the criminal proceedings.

Compliance with the terms for the application of punishment is very important: if they are violated, the employee's recovery will be inevitable, even if he really does not fulfill his labor duties. So, the employee's claim for recognizing the dismissal as illegal was satisfied due to a violation of the procedure for bringing to disciplinary liability: a penalty was imposed by the employer after one month from the date of discovery of the disciplinary offense ( The appeal ruling of the Supreme Court of the Komi Republic dated 26.06.2014 in case No.  33-3047/2014 ).

4. We check if the employee belongs to the category of employees who cannot be fired at the initiative of the employer. We recall that according to h. 6 art. 81 of the Labor Code of the Russian Federation dismissal of an employee at the initiative of the employer is not allowed (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary incapacity for work and during the period of the employee's stay on vacation.

By virtue of h. 1 tbsp. 261 of the Labor Code of the Russian Federation termination of an employment contract on the initiative of an employer with a pregnant woman is not allowed, except in cases of liquidation of an organization or termination of activities by an individual entrepreneur.

So, the employee was reinstated at work, since his dismissal was made during the period of his temporary disability ( The appeal ruling of the Krasnoyarsk Regional Court dated 05.21.2014 in case No.  33-4103A-09).

5. We issue a dismissal order. Termination of an employment contract is formalized by an order (decree) of the employer ( h. 1 tbsp. 84.1 of the Labor Code of the Russian Federation). With such an order, the employee must be familiarized with the signature. If it is impossible to do this (the employee is absent or refuses to get acquainted with the order), a corresponding entry is made on the order.

Moreover, according to h. 6 art. 193 of the Labor Code of the Russian Federation if the employee refuses to get acquainted with the order, it is necessary to draw up an appropriate act.

As a basis for dismissal, the order must indicate the details of the previous order on the application of disciplinary measures to the employee, as well as documents confirming the next failure to fulfill his labor duties (memoranda, acts, etc.).

6. We make an entry in the work book. According to p. 5.3 Instructions for filling out work books approved Decree of the Ministry of Labor of the Russian Federation of 10.10.2003 No.  69 , upon termination of the employment contract on the initiative of the employer, an entry is made in the work book about the dismissal (termination of the employment contract) with reference to the relevant paragraph Art. 81 of the Labor Code of the Russian Federation... Let's give an example.

Remember that the employee must be familiarized with the dismissal record under the signature in his personal card, which repeats the entry made in the work book ( Clause 12 of the Rules for maintaining and storing work books approved Decree of the Government of the Russian Federation of 04.16.2003 No.  225 "On work books").

After making an appointment on the last working day of the employee, he needs to issue a work book. The employee must confirm this fact with his signature in the book of accounting for the movement of work books and inserts to them. If on the day of dismissal it is impossible to issue a work book due to the absence of the employee or refusal to receive it, the employer must send the employee a notice of the need to appear for the work book or agree to send it by mail. At the written request of an employee who did not receive a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

7. We carry out the final settlement. Based Art. 140 of the Labor Code of the Russian Federation upon termination of the employment contract, the payment of all amounts due to the employee is made by the employer on the day of the employee's dismissal. If the employee did not work on that day, the corresponding amounts must be paid to him no later than the next day after the laid-off employee submits a settlement request.

8. Completing the dismissal. The last stage of the dismissal registration can be the issuance of duly certified copies of documents related to the work. This is done only if the employee asks the employer about it in a written application.

But it is mandatory to issue a certificate of the amount of earnings for the last two years preceding the dismissal. This is required p. 3 h. 2 tbsp. 4.1 of the Federal Law of December 29, 2006 No.  255-ФЗ "On compulsory social insurance in case of temporary disability and in connection with motherhood. " Let us remind that the form of the certificate has been approved By order of the Ministry of Labor of the Russian Federation of April 30, 2013 No.  182n .

In addition, if the employee was liable for military service, information about his dismissal must be transferred to the military registration and enlistment office. Such information is submitted in the form given in Appendix 9 to Methodical recommendations on the conduct military registration in organizations, approved by the General Staff of the Armed Forces of the Russian Federation on April 11, 2008.

Finally

• whether the employee has outstanding and outstanding disciplinary sanctions, whether they are properly executed;
• whether the employee is familiar with his job duties, internal labor regulations and other documents relating to him labor activity;
• whether the procedure for bringing the employee to disciplinary responsibility was carried out correctly ( Art. 192,193 of the Labor Code of the Russian Federation).

All employees, when they get a job, sign an employment contract, which contains a list of their job responsibilities. Also, employees are required to obey the internal regulations of the organization, observe the work schedule and follow the job description. Improper performance of official duties leads to dismissal, and in some cases employers dismiss negligent employees precisely under the article.

What the law says

Let us consider in more detail those violations that may be followed by dismissal:

1. The absence of an employee at his workplace, which is not supported by any valid reasons. Repeated delays are also taken into account.
2. The employee's unwillingness to fulfill his labor obligations when changing labor standards or conditions of the internal order.
3. Recurring violations in work activity or work regime. If the violation was revealed once, then a disciplinary sanction is imposed on the employee.

Who determines that an employee is failing

Non-fulfillment or improper fulfillment of duties is when an employee has certain labor obligations, and he may well cope with them on his own, but does not do this for unknown reasons.

Anyone can identify this fact: from a manager to an ordinary client who has not been served by an employee. If the head of the department has identified the failure, then he must record this event in a memorandum to the higher management. If it was a client, then he can draw up a complaint and also forward it to management. Such a document is the basis for checking an employee for improper performance of official duties.

The complaint itself is not a reason to bring a person to disciplinary liability, but if the facts set out in it are confirmed during the audit, then this can serve as the beginning of the dismissal process.

There are cases when the duties of an employee include the execution of various orders. To protect themselves from possible misunderstandings, the management should set out such tasks in writing and give them a signature. In the case when the task is ignored, this also needs to be fixed.

The legislation does not establish a list of persons who can identify improper performance of work. As stated earlier, it can be anyone. It is important that all information contained in the note is true.

Employer's responsibility

If the employer applies this type of punishment as a penalty for non-performance of official duties, then this must be approached with all seriousness. At the slightest shortcomings and the opportunity to challenge the employer's decision in court, the latter may be subject to penalties.

Upon dismissal, you must check:

• the employee has not removed disciplinary sanctions;
• the correctness of registration of all penalties (it is imperative to attach a sample memo to the employee);
• the presence of an employee's signature on familiarization with official duties and other documents that are directly related to his work activities;
• the correctness of the entire process of bringing an employee to disciplinary responsibility.

If the employer made mistakes and the result of the dismissal was challenged in court, then he will be brought to administrative responsibility. In addition, he will be obliged to reinstate the employee and pay him compensation.

By the way, the leaders are also provided with the responsibility spelled out in Art. 5.27 of the Administrative Code of the Russian Federation. In this case, any administrative penalty is applied only by government agencies.

Consequences for the employee

As such, the legal consequences of dismissal under Art. The citizen has no 81. But the entry corresponding to this article will not have a very good effect on the status of a person when he wants to triple for another job.

Dismissal for improper performance of official duties is not a reason to end your working career, but you still don't need to allow such entries in the work form.

Arbitrage practice

Judicial practice shows that the fact of dismissal can be challenged:

1. If the order was executed incorrectly. The specific action that led to the violation was not specified (an example of a memo provided earlier).
2. If the offense does not correspond to the severity of the punishment.
3. When the violation occurred for the first time.
4. In the process of identifying the violation, no explanation was requested from the employee.
5. The deadlines have been exceeded in relation to those established by law.

However, before the issuance of a dismissal order, an explanatory statement or an act on the employee's failure to provide an explanation or on refusal to give him must be received from the employee. It is noted that the mere fact that the employee was not requested for an explanation when issuing a separate order for dismissal does not constitute grounds for reinstating the employee at work, if such an explanation was requested before the decision was made to apply a disciplinary sanction to the employee.

On the specifics of making decisions on labor disputes about dismissal and about transfer to another job, you can learn from "Encyclopedias judicial practice... Labor Code of the Russian Federation " Internet versions of the GARANT system. Get it for 3 days for free!

The experts also draw attention to the fact that when an employee is dismissed in accordance with the order, it is necessary to indicate both the misconduct committed by the employee, which was the basis for the dismissal, and the disciplinary sanction (penalties) that the employee has, which was taken into account by the employer when applying the penalty in the form dismissal for repeated non-performance without good reason of official duties ().

The current labor law gives the administration of the subject the right, in established cases, to terminate the employment agreement at will. One of these reasons is dismissal for repeated failure to perform labor duties. However, for this act to be completely legal, a certain procedure must be followed.

Repeated failure to perform labor duties is a generalization of several misconduct, for which the administration of the company is endowed with the ability to fire an employee. This concept is established by labor laws.

Repeated non-performance is a situation in which an employee fully or partially fails to comply with the duties assigned to him in the documents of the company, and this was repeated and recorded several times in a row. In addition, dismissal can be made for non-fulfillment of obligations under an employment contract, violation of internal regulations, safety instructions, etc.

The following cases may fit this definition:

• The employee is not at the place of work assigned to him;
• An employee does not fulfill the official duties assigned to him in the documents without justifiable reasons.

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Important! In order for permanent non-compliance to be translated into a disciplinary violation, it is required to confirm the employee's guilt in this. Only in these circumstances is he allowed to be held liable or dismissed.

In addition, the TC records cases when an employee is entitled to refuse to perform his duties, but at the same time he must first inform the administration about this event. For example, when he refuses to do a job due to delayed wages.

Fire or discipline?

The Labor Code reflects several ways how to punish a worker for misconduct related to the performance of duties. They include a reprimand, reprimand or dismissal.

To apply each of them, you must first collect an extensive evidence base on the misconduct that occurred, as well as familiarize the employee with the internal regulatory documents.

Also, the code allows you to immediately terminate the labor agreement in the absence of the employee in the place assigned to him for 4 hours or more. However, you need to draw up memorandums on this matter, as well as take explanatory notes from the employee due to absence.

If the employee is in a fixed place, but partially fulfills certain duties for him, or ignores altogether, then the dismissal cannot be carried out immediately. It is necessary to complete step by step procedure... For each such moment of violation, you need to draw up a document for confirmation, as for fixing truancy.

After documenting several facts of violation, you can begin the dismissal procedure. However, first, having considered the collected evidence, the director must impose a reprimand and reprimand on the guilty person. Direct dismissal is allowed only after the imposition of the first two.

Attention! It is forbidden to punish with several punishments at once for one violation, including dismissal.

Very often, the management and the guilty employee in such circumstances carry out dismissal by agreement of the parties. This allows the employee to leave the company without a bad mark in the labor market, and the company administration gets rid of the employee without fear of challenging his dismissal due to incorrect preparation of documents.

Dismissal for non-performance of labor duties step by step instructions

Step 1. Determine if there really was a violation

If the management believes that the employee does not act in accordance with his direct responsibilities, you must first consider the content of the agreement signed with him, the job description, and other internal acts. If the obligation, which he does not carry out, is mentioned in such documents, then it is allowed to carry out the dismissal procedure.

If the administration believes that he is obliged to do this, but this is not recorded in any documents, but it is impossible to start the dismissal procedure.

Step 2. Recording the fact of default

To make a documentary fixation of the case of non-fulfillment of the duties assumed by the employee, the following are used:

• Memorandum;
• Violation Act;
• Conclusions of the commission.

When registering each of the above-mentioned forms, you need to enter the following information into it:

• How exactly the misconduct was identified;
• When it was perfect;
• Information about the employee who issued such a document;
• The date the document was created.

Step 3. Requesting an explanation from the employee for the committed misconduct

The administration of the company must ask the employee for an explanation of why he committed this act, in writing. At the same time, the request for providing an explanatory note itself is best also drawn up in writing, and issued to the employee against signature, or sent by mail by registered mail.

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Important! An order for dismissal due to misconduct must be issued within 1 month from the fact of its discovery. At the same time, at the specified time, the time at which the employee was on sick leave is not entered, as well as waiting for the decision of the trade union body.

The drawn up order must be recorded in the order register.

Step 5. Make familiarization with the order

As soon as the order is created and signed by the director, it is handed over to the dismissed person for approval. He must carefully read the data entered in it and sign in a special column.

But the employee may refuse to sign the document. Then a refusal mark is entered in this column. Further, a commission of at least two people meets, in the presence of them and the employee, the contents of the order are read aloud, after which an act of refusal to sign is drawn up.

An employee may request in writing to be given a copy of this document.

Step 6. Making an entry into a personal card

To enter data on dismissal in the form, you must apply the section "Grounds for termination of an employment contract". It reflects a line stating that the failure to perform labor duties of Article 81 of Clause 5 of the Labor Code of the Russian Federation was recorded. It is also necessary to record the data about the order.

You need to acquaint the employee with the completed record against signature. If he does not want to put it down, then you need to draw up an act of refusal to sign (similar to an act when an order is refused), and it is attached to a personal card.

Step 7. Making an entry into the employment of the dismissed

All marks in the labor document, which include data on dismissal for violation, must be carried out in phrases strictly defined in the law.

When terminating an employment contract for frequent non-compliance with the company's rules, the following entry is made in this document: “Fired due to repeated non-performance without good reason of labor duties, paragraph 5 of Article 81 of the Labor Code of the Russian Federation”.

The personnel officer must remember that in this form it is impossible to describe in detail the reason for the termination of the contract. The reference to the order of the management must be present as a basis.

An example of an entry in a work book about a dismissal:

The specialist who performs the execution of such records in the company must remember that if he incorrectly reflects this fact in this document, then he will be subject to material liability within the limits of the average daily earnings for all days during which the previously dismissed person could not find a job.

Step 8. Drawing up a note-calculation upon termination of the contract

When the order is completed, personnel service it is provided to the accounting department for the purpose of making salary calculations. For its registration, the company can use the standardized form T-61.

The first page is filled by specialists from the HR department, the second is intended for accounting.

The front side reflects data on the dismissed person, including the number of days he has not taken leave.

Step 11. Notification of the military registration and enlistment office of dismissal (if necessary)

A person dismissed for committing a misdemeanor at an enterprise may be classified as a person liable for military service. Based on the norms of the legislation, the personnel department or other responsible person is obliged to report the termination of the contract with him to the local office of the military registration and enlistment office within 2 weeks.

A message about this must be made in the form established by the Methodological Instructions for maintaining military registration in organizations.

Is it possible for the court to recognize the unlawfulness of the dismissal?

When starting to draw up the termination of a contract with a person for repeated failure to perform labor duties, the employer must understand that all its stages must be correctly documented and correspond to reality.
If you ignore this, then the employee, by filing a claim with the judicial authorities, will be able to legal grounds challenge dismissal for absenteeism or other misconduct.

Lead to the illegal completion labor relations on the initiative of the administration of the company, there may even be an admission of inaccuracies and errors in the created documents.

The practice of considering such cases shows that the main reasons for canceling the order of dismissal can be considered:

• Violation of the sequence of stages of the procedure for registering violations of the employee, and termination of labor relations with him.
• The discrepancy between the moments of the incident indicated in the documents, which led to the dismissal of the employee, with reality. Such discrepancies include a reflection of the alleged absence of an employee at the place of work, when he has evidence that he was doing work at that time, or he had a certificate of incapacity for work.
• Incorrect registration of the fact of obtaining consent from the working person for translation, work outside working hours, etc.
• If in the written notices sent to the delinquent employee, there is no request to receive explanations from him on the fact of the offense committed by him. The employer must remember that the letter must be delivered personally to the employee, or sent in such a way that would record the receipt of this document.
• When the deadlines for bringing an employee to justice (six months) have already expired.

Attention! If in the case under consideration there is one of these moments, the judge can establish the forced absenteeism status, and for him the company management cannot formalize the dismissal.

After the employer becomes aware of the employee's failure to fulfill his labor duties, it will be necessary to establish the fact of this violation. In particular, were the unfulfilled obligations included in the employment contract, job description and other local regulations... Also, the employer must prove why an extreme disciplinary measure will be applied for the specified violation, and not another, easier one.

Note: it is possible to dismiss an employee on the specified basis only if at the time of the commission of the specified misconduct there is an outstanding disciplinary sanction on him. If the employee does not have a disciplinary sanction, then the dismissal on this basis will be considered illegal.

3. Obtaining explanations from the employee on the fact of violation (non-performance) of labor duties.

After the employer establishes the fact of a violation of labor obligations, he will have to ask the employee for an explanation of the reasons for his commission of this misconduct. The employee's explanation is made in writing in the form explanatory note.

A sample of an employee's explanatory note regarding the reasons for the violation of labor duties (download a sample).

4. Drawing up an act on violation of labor discipline

After the fact and the reasons for the violation by the employee of his official duties are established, it is necessary to draw up an act of disciplinary offense... The document is drawn up in the presence of two witnesses.

A sample of a disciplinary misconduct act (download a sample).

5. Preparation of an order to terminate an employment contract with an employee due to repeated failure to fulfill his job duties

Dismissal, in accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, is a punishment measure, in connection with which the issuance of an order to terminate an employment contract on the specified basis is subject to the corresponding requirements regarding the period for its preparation. In accordance with Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction against an employee must be applied no later than a month from the date of his discovery, while the specified period does not include the time of illness and vacation of the employee. The maximum period within which an order must be drawn up is 6 months.

The day when the misconduct was discovered is the day when the head of the organization found out about it, it does not matter whether he is empowered to impose a disciplinary sanction.

Based on the order of dismissal, an entry is made in the work book and the employee is calculated. The order is drawn up according to the unified form T-8.

Note: the employer has the right to independently develop the form of the order, taking into account the requirements of the legislation. The storage period for this document is 75 years.

Form and sample of drawing up an order to terminate an employment contract

Order form for termination of an employment contract

A sample order to terminate an employment contract with an employee due to repeated failure to fulfill his job duties without good reason (download a sample).

5. Registration of the order of dismissal in the appropriate journal

The drawn up and signed order to terminate the employment contract is subject to registration in the register of orders for personnel. This journal records orders for all employees of the organization (IP), in particular, for admission, transfer, bonuses, business trips, dismissal, etc.

note that orders for the first persons of the organization (head, chief accountant and other persons, information about which is reflected in the charter) are registered in another journal - the register of orders for the main activity.

The specified document does not have a strictly established form, it does not have and is developed by the employer independently.

The storage period for the register of orders for personnel is 75 years.

Personnel orders register (download the magazine).

6. Familiarization of the employee with the order of dismissal

The order to terminate the employment contract of the employee must be presented against signature no later than three days from the date of its publication, not counting the time the employee is absent from work. In the event that he evades or refuses to familiarize himself and sign a corresponding note is made in the order, or an act of refusal to familiarize with the order is drawn up. The employee has the right to appeal the disciplinary sanction to the state labor inspectorate or the labor dispute resolution commission.

7. Drawing up a note-calculation

A calculation note is drawn up after the issuance of a dismissal order for the final settlement with the employee for wages and other payments. The document is filled in by an employee of the HR department, and the calculation of payments is made directly by the accountant.

Form, sample and procedure for filling out a note-calculation

Calculation note form

The calculation note consists of the front side, filled in by an employee of the personnel department and the back side, filled in by the accountant. The note is drawn up according to the unified form T-61 (download the form).

How to fill out a note-calculation

On front side it is necessary to reflect the following mandatory information:

• Employer name.
• OKPO code.
• Document number and date of its preparation.
• Number and date of the employment contract.
• Full name, name structural unit and the position of the employee.
• The date of termination of the employment contract.
• Grounds for dismissal.
• Date and number of the dismissal order.
• The number of unused vacation days, as well as days used in advance.
• Date of preparation of the document and signature of the employee of the personnel department.

On reverse side the accountant calculates the vacation and other payments provided to the employee.

When drafting your note, consider the following:

• In column 2 it is necessary to indicate the 12 months preceding the dismissal, and in column 1 the corresponding year (years).
• In column 3 the total amount paid to the employee in the corresponding month is reflected.

In column 4 the total number of calendar days in reporting period... If an employee has worked a full month, the calculation uses the average monthly number of days worked - 29.3.

Note: if the employee has worked fewer days, the calculation is made according to the formula: (29.3: number of calendar days in a month) x number of days worked.

• In column 5 to be filled in only with the summarized accounting of the employee's working time.
• In column 6 it is necessary to reflect the average earnings of the employee (hourly or daily). Average earnings are calculated using the formula: Amount of payments per year (line Total): Number of calendar days (column 4 or 5).
• In column 7 you must indicate the number of vacation days used in advance.
• In column 8 the number of unused vacation days is reflected.
• In column 9 the amount of payment for unused vacation days is calculated.

In the table "Calculation of payments", the final calculation is made for the amount given to the employee for the calculation:

• In column 10 the amount of the accrued salary is indicated.
• In column 11 the amount of vacation pay calculated in column 9 is reflected.
• In column 12 other charges are indicated, if any.
• In column 13 the amount of all charges is reflected (the sum of columns 10, 11 and 12).
• In column 14 the amount of personal income tax calculated from the amount of payments on line 13 is indicated.
• In column 15 the amount of other deductions from the employee's salary, if any, is reflected.
• In column 16 the total amount of deductions from the employee is indicated (the amount of columns 14 and 15).
• In column 17 the amount of the organization's debt to the employee is reflected.
• In column 18 the employee's debt to the organization, if any, is indicated.
• In column 19 indicates the total amount of funds to be paid to the employee, minus all deductions.

A sample of filling out a note-calculation in the form of T-61

A sample of filling out a note-calculation (download the form).

8. Making a record of termination of the contract in the work book and personal card of the employee

After the order is issued and the employment contract is terminated, it is necessary to make an appropriate note in the employee's personal card and work book.

A sample of entering information about dismissal due to repeated non-fulfillment by the employee without good reason of work duties into the employee's personal card (download a sample).

A sample of entering information about dismissal due to repeated non-fulfillment by an employee without valid reasons of work duties in a work book (download a sample).

9. Payment of wages and other benefits and compensations in connection with dismissal

On the day of the employee's dismissal, it is necessary to make a full calculation of the amount wages, compensation for unused vacation and other payments, according to the calculation note.

10. Issuance of a certificate of income for the last two years and a work record book to the employee

On the day of dismissal, the employee is issued employment history and a certificate confirming earnings for the last two years for presentation at a new place of work.