Can I be fired for disciplinary action? Dismissal for disciplinary offenses. Application of disciplinary action

The list of disciplinary sanctions that can be applied to employees is given in Art. 192 Labor Code Russian Federation(hereinafter "TK"). These are:

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

Explanations on the application of this type of penalty are contained in paragraphs. 33-53 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the “Plenum”).

In case of violation of the dismissal procedure, the employee may be reinstated with payment wages for all the time forced absenteeism, and the employer is at risk of being held administratively liable.

Within the framework of this article, we will consider several examples of the application of dismissal for some reasons, Article 81 of the Labor Code of the Russian Federation, supported by judicial practice.

Example #1

On this basis, there is an example from the practice of the St. Petersburg City Court: Cassation ruling of August 1, 2011 No. 33-11608 / 2011 on the recognition of dismissal orders as illegal.

It follows from the materials of the case that, by order of the general director of the LLC dated September 18, 2010, employee G., who had been working since December 01, 2004 as the head of the on-duty administrators service, was issued a reprimand for non-compliance official duties assigned to him by the employment contract and clause 3.8 of the job description, expressed in the fact that he did not ensure that his subordinate employee complied with the instructions of the company's management to provide explanations on the fact of penetration and theft in the business center.

By order of the same date, G. was reprimanded for failure to fulfill his duties under the employment contract and clause 5.1.3 of the job description, expressed in the fact that he did not comply with the order of the general director to immediately arrive at the business center to ensure the smooth operation of the service duty administrators in an enhanced mode, did not provide his replacement with an employee at the post, allowed the post in the business center to be inoperable and did not ensure the readiness of subordinates to strengthen the security regime of the organization's facilities.

Next, September 20, 2010 general manager LLC issued an order to dismiss G. for violation of official duties, taking into account previously imposed disciplinary sanctions on the basis of paragraph 5 of Art. 81 of the Labor Code (repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction). G. applied to the court for the protection of his rights to recognize the dismissal order and orders to impose disciplinary sanctions as illegal, reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage.

By a court decision, the requirements of employee G. were partially satisfied. The court decided to recognize the order to dismiss the plaintiff as illegal and reinstate him in his position, collect in his favor wages for the time of forced absenteeism and compensation for non-pecuniary damage. The rest of the claim is denied. The defendant (employer) was also charged a state duty to the state. Only part of the recognition of the order to impose a disciplinary sanction as unlawful was denied.

Checking the legality of imposing a disciplinary sanction on the plaintiff, the court, following the instructions of the Plenum, studied all the terms of misconduct and issued orders, and found out that the employer brought G. to disciplinary responsibility on September 20, 2010 for the offense imputed to him on August 07, 2010, when the deadline for bringing the plaintiff already expired.

The court came to the conclusion that the materials of the case do not provide sufficient grounds for concluding that the offenses imputed to the plaintiff were significant, which required the application of an extreme disciplinary sanction in the form of dismissal to him. Evidence that these violations led to significant consequences for the work process, the defendant did not provide the court. The result was a negative court decision for the employer and additional costs.

Conclusion: Since dismissal for non-fulfillment of labor duties will be a disciplinary sanction, it must be carried out according to the rules provided for the imposition of disciplinary sanctions. These rules are enshrined in Article 193 of the Labor Code. Firstly, it is necessary to demand from the employee a written explanation of the misconduct committed, and in case of refusal to give explanations, draw up an act about this in the presence of two or three witnesses. Then you need to issue a dismissal order and familiarize the employee with it against receipt on the day of dismissal (order form No. T-8 was approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1). If the employee refuses to sign the order, an act is drawn up. After the issuance of the order, you can make a record of dismissal in work book employee and close his personal card form No. T-2.

• the employee did not have a disciplinary sanction or it was imposed illegally or its validity period has expired; the terms and procedure for dismissal on guilty grounds were violated (Article 193 of the Labor Code of the Russian Federation);
• the preliminary consent of the Federal Labor Inspectorate and the Commission on Juvenile Affairs for the dismissal of a minor employee was not received (Article 269 of the Labor Code of the Russian Federation).

Example #2

The fact of theft (waste, destruction or damage) of the property and the guilt of the employee must be established by a valid verdict or court order (paragraph “d”, paragraph 6 of article 81 of the Labor Code, paragraph 44 of the Resolution of the Plenum). Since the Labor Code speaks specifically about the commission of theft (waste, destruction or damage), then the verdict (decree) should be issued precisely on this fact. Therefore, if such a document establishes only the fact of an attempt on these actions, there are no grounds for dismissal under this paragraph.

From the materials of the Decree of the Presidium of the Samara Regional Court dated August 05, 2004: citizen Ts. filed a lawsuit against AvtoVAZ OJSC for reinstatement and recovery of wages for the time of forced absenteeism. The plaintiff indicated that he worked for the defendant as a forklift driver, by the verdict of the Avtozavodsky District Court of Togliatti dated April 16, 2003, he was found guilty of committing a crime under Part 3 of Art. 30, paragraph "a" part 2 of Art. 158 of the Criminal Code of the Russian Federation, and he was sentenced to one year of corrective labor with the deduction of 10% of his monthly earnings to the state.

Since correctional labor is served at the main place of work, Ts. believed illegal dismissal him from work under sub. "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation (theft of other people's property at the place of work) by order of May 22, 2003. By the decision of the Avtozavodsky District Court of the city of Tolyatti, Samara Region of July 10, 2003, the claims of C. were satisfied: it was decided to restore the plaintiff from May 23, 2003. at work as a forklift driver in a workshop at AvtoVAZ OJSC and collect wages in his favor for the time of forced absenteeism. By decision of the Judicial Collegium for Civil Cases of the Samara Regional Court of September 17, 2003, the decision of the court of first instance was upheld.

Conclusion: Termination of the employment contract under paragraph "d" paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is one of the measures of disciplinary action, therefore, the employer must comply with the procedure and conditions for the application of disciplinary sanctions, incl. their timing. It should be borne in mind that upon dismissal on this basis, the one-month period for its application is calculated not from the day the misconduct was discovered, but from the day the court verdict enters into legal force or from the day the decision to impose an administrative penalty is made.

Example #3

These may be employees:

• serving monetary or commodity values
• performing educational functions, that is, having a direct relationship with children.

The commission of guilty actions that give rise to a loss of confidence in employees directly serving monetary or commodity values ​​​​(for example, cashiers, sellers, collectors, storekeepers, etc.), on the part of employers (due to calculation; weighing; unsafe property - shortage, use entrusted property for personal purposes, receiving payment for services without obtaining relevant documents, etc.) can be considered as grounds for applying disciplinary sanctions if these actions are committed in the performance of labor duties by an employee.

Regarding the second paragraph, an employee performing educational functions may be dismissed for committing an immoral offense at the place of work and in connection with the performance of labor duties, subject to the procedure for applying disciplinary sanctions.

Immoral is an offense that is contrary to generally accepted morality (appearance in in public places in a state of intoxication, the use of obscene words, participation in a fight - that is, behavior that degrades human dignity, "unseemly" actions that discredit an employee) committed in the performance of work duties. This definition is an estimate. It is assumed that not all immoral offenses can be grounds for dismissal, but only those that make it possible to judge that the employee cannot continue to carry out labor functions of an educational nature. Only the employer will judge this, since the legislator does not establish any criteria. However, it should be borne in mind that these acts committed in everyday life cannot be recognized as a disciplinary offense.

Conclusion: Loss of confidence in an employee must be based on reliable facts confirming the employee's guilt in causing material damage, creating a threat to causing it or committing other illegal actions. These should be acts of inventory, inspection of financial and economic activities, test purchases, etc.

Example #4

The Plenum clarified in paragraph 48 that the unreasonableness of a decision is defined as follows: whether adverse consequences occurred precisely as a result of the decision taken and whether they could have been avoided if another decision was made. This indicates the establishment of a direct connection between the decision made and the material damage that has occurred, which indicates material composition offenses and clarity in resolving this issue does not make.

The Plenum does not take into account that the validity or invalidity of the decision may be subjective. These are evaluative concepts, and what meaning will be laid in them depends on who will make decisions or who will be interested in them. And such a problem of "evaluative" concepts, unfortunately, can be traced in our legislation very, very often.

A prerequisite for dismissal under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation is also the presence of damage. The Labor Code of the Russian Federation discloses the concept of direct actual damage, which is the basis for bringing an employee to liability, which means a real decrease in the employer's cash property, deterioration of the said property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property), as well as the need for the employer to incur costs or excessive payments for the acquisition or restoration property (Article 238 of the Labor Code of the Russian Federation).

If, as a result of an unreasonable decision, the employer did not receive any income, then dismiss the employee under paragraph 9 of Art. 81 of the Labor Code of the Russian Federation is impossible.

Conclusion: In order to give an adequate assessment of the decision of the manager, you can use the following criteria"unreasonable" decision:

• the decision was made on the basis of incomplete, inaccurate, insufficient or incorrect data;
• when making a decision, not all data were properly evaluated, a number of data were ignored (for example, increased risks (commercial, financial, etc.));
• data (including, for example, legal regulations) have been misinterpreted or misinterpreted;
• the decision was made on an emotional level, although a number of objective factors had to be taken into account when making it;
• prior to making a decision, consultations and preparatory activities should have been carried out (checks (for example, the creditworthiness of the organization), analytical studies, data collection, calculations (for example, commercial and financial risks, etc.); however, these measures, in violation of established order were not carried out.

Example #5

As an example, consider the Ruling of the Moscow City Court dated September 26, 2011 in case No. 33-28491.

Citizen Ts. was appointed to the position of General Director of the State Unitary Enterprise of Moscow "Ekotekhproekt" on the basis of an employment contract for a period of 3 years.

By order of December 28, 2010, the plaintiff was dismissed on the basis of paragraph 10 of Art. 81 of the Labor Code of the Russian Federation for a single gross violation by the head of the organization of labor duties.

Ts. considers this dismissal unlawful, since he did not allow a gross violation of labor duties; when dismissed by the employer, the dismissal procedure was violated.

After evaluating the evidence in the case, the trial court came to the correct conclusion about the unlawfulness of the dismissal of the plaintiff under paragraph 10 of Art. 81 of the Labor Code of the Russian Federation.

At the same time, the court reasonably proceeded from the fact that dismissal on this basis cannot be carried out without specifying specific facts indicating the misconduct of the head, his guilt.

The date of dismissal was changed by the employer to March 28, 2011. However, the Labor Code of the Russian Federation does not give the employer the right to change the date of dismissal of an employee without his prior consent, after the employment relationship between the employer and the employee has been terminated.

Thus, the procedure for dismissal of the plaintiff by the employer was not observed in violation of the provisions of Art. 193 of the Labor Code of the Russian Federation.

Under such circumstances, the court decided to satisfy the plaintiff's claims in full.

Conclusion: Despite the fact that the above articles of the Labor Code provide a fairly large list of grounds on which a disciplinary sanction in the form of dismissal can be applied, this is an extreme measure. Employers should use it with caution, correctly filling out all documents. The practice of applying the Labor Code in Russia shows that the courts and the state labor inspectorate in such cases try to protect the rights of workers as much as possible.

In the relations that develop between the employer and employees, the discipline established in work collective, and helping the head of the company to manage it, and employees to be as collected, responsible and executive as possible.

Attention

To achieve this goal, the employer, with the help of approved local regulations (LNA), prescribes certain rules of conduct in the organization that are mandatory for all employees. Failure to comply or unfair compliance with these rules is qualified as a disciplinary offense, for which the head has the right to reprimand.

What is a reprimand?

One of the forms of penalties is a reprimand, expressed in the official censure of a misconduct in writing - an order. The wording of this punishment can only sound like this - contrary to popular belief, no other types of reprimand, such as "strict reprimand", "reprimand with entry", etc. does not exist under the current Russian legislation, and their application is recognized in judicial practice illegal.

For your information

The very concept of a disciplinary offense in the form of a reprimand implies non-performance or improper performance by an employee of the duties assigned to him in the employment contract, job description, as well as the LNA of the employer.

Violation labor discipline will be considered: failure by the employee to fulfill his immediate duties, being late or absent from work, committing theft or damage to property, appearing in a state of any kind of intoxication, providing false documents during employment, etc. Some of these violations are enshrined in federal labor legislation, others may be reflected in local regulations of the employer, and in order for these provisions to have legal force, the staff of the organization is familiarized with them against signature.

Labor Code of the Russian Federation

The issues of issuing and canceling disciplinary sanctions are regulated by Chapter 30 of the Labor Code of the Russian Federation (articles - the Labor Code of the Russian Federation).

The competence of the head of the organization includes the right to apply to the employee one of the following approved by the Labor Code of the Russian Federation penalties for misconduct at work(Article 192 of the Labor Code of the Russian Federation):

• make a comment;
• issue a reprimand;
• terminate the contract with the negligent employee.

There are no criteria by which one violation of discipline can be condemned with a remark, and another with a reprimand, this issue is decided by the employer in each individual case individually, taking into account the nature of the act committed by the employee, as well as the severity of its consequences. as a measure of punishment can be made only on the grounds provided for in clauses 5, 6, 9 or 10 of the first part of Article 81 or clause 1 of Article 336 of the Labor Code of the Russian Federation.

IMPORTANT

The grounds for “dismissal for reprimand” as such do not exist in the legislation, its application will be a gross mistake for the head and may subsequently become a reason for litigation.

How many reprimands are enough to get fired?

This criterion is not established by law. But the dismissal of an employee for a reprimand can be carried out only under the following conditions:

• the employee did not perform his duties repeatedly and already has existing disciplinary sanctions;
• the employee committed a single gross violation of discipline.

In the first case, the management of the company has the right to dismiss the employee upon fixing a new violation of discipline, if before that he had already been punished for the perpetrators. labor activities, and it is not redeemed yet.

Additional Information

Termination of an employment contract with an employee who does not have disciplinary sanctions is permissible only on the grounds set forth in clause 6, part 1, article 81 of the Labor Code of the Russian Federation. The list is recognized by the courts as exhaustive and cannot have extended interpretations.

Step-by-step instructions for dismissal for reprimand

Determines a fairly clear procedure for issuing disciplinary sanctions. Failure to comply with the established procedure when terminating an employment contract as a punitive measure can be challenged by the employee in court with all the ensuing consequences for the employer. The procedure for dismissal for a reprimand involves the following legally significant steps:

1. Any disciplinary violation must be documented. Evidence of it can be a report from the immediate supervisor of the employee, statements by eyewitnesses of the event, the results of a medical examination, audit reports indicating theft, etc.
2. The perpetrator of the violation of discipline must give an explanation of his offense in writing. The requirement of the employer to state the reasons for his behavior is also best documented in an official letter registered through the office of the institution.
3. The employee is given 2 working days to give explanations. If, after the specified time, they have not been provided, an appropriate act is drawn up.
4. Further, an order is issued to dismiss the employee under clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation - if he already has outstanding disciplinary sanctions. In the event of a single gross violation of official duties, the contract is terminated under clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation.
   Attention

   The issuance of such an order is possible only within 30 days from the moment when the misconduct was recorded, after this period the application of disciplinary punishments is prohibited. This period does not include the absence of the employee due to illness or vacation, as well as the time spent assessing the situation by the employees' representative body. In the presence of these circumstances, the general period giving the head of the organization the right to apply a penalty is limited to a period of 6 months. The exception is violations identified as a result of an audit, an audit or an audit of the FCD of the organization - in this case, a penalty can be issued within 24 months.

5. The order is presented to the employee for familiarization within 3 working days. If he refuses to sign, an appropriate act is drawn up about this.
6. The accounting department calculates the released employee, personnel service makes a record of dismissal in the work book.

If the contract is terminated for a repeated violation of discipline, disciplinary sanctions for existing misconduct must be confirmed. They are subject to the same requirements as described above. The period from the application of these penalties to the dismissal of an employee cannot exceed 12 months.

Entry in the workbook

The personnel service of the organization, upon dismissal of an employee for violations of discipline, makes an appropriate entry in his work book. It should reflect:

• date of termination of the contract;
• wording in accordance with an article of the Labor Code and a reference to it;
• number and date of the relevant order.

Dismissal of a disabled person for a reprimand

Labor relations with employees with the status of a disabled person have their own characteristics and limitations. In these cases, the legislation imposes more stringent requirements on employers, and working disabled people of all groups are provided with a fairly wide range of social guarantees and benefits aimed at preserving their health and protecting their rights in labor conflicts.

For your information

But as for the termination of the contract for violation of official duties in the absence of good reasons, in this case the law guards the interests of the employer - a disabled employee who treats his work in bad faith and irresponsibly can be dismissed for guilty labor actions on general grounds.

Dismissal of a disabled person for a reprimand is permissible subject to the strict observance of the following conditions:

• the employee has previously received disciplinary action;
• these charges are not repaid;
• the procedure for terminating the contract for a misdemeanor is observed in accordance with the Labor Code of the Russian Federation.

In general, the procedure for dismissing a disabled person for a reprimand does not differ from the general procedure for terminating a contract for disciplinary offenses.

Dismissal for reprimand during sick leave

Limits the period of possible application of penalties to a period of 30 days from the date of establishment of a disciplinary offense, it excludes the time the employee is absent due to illness. This clause means that an employee cannot be fired during his period of incapacity for work, but the monthly period set for the application of the penalty is increased by the time the employee is on sick leave. It is possible to punish him for a reprimand at the end of the disability certificate, but no later than 180 days from the date of the misconduct.

Dismissal for reprimand after maternity leave

By virtue of Article 261 of the Labor Code of the Russian Federation, it is expressly prohibited to apply disciplinary punishment in the form of dismissal to pregnant employees.

According to Article 193 of the Labor Code of the Russian Federation, penalties are possible no later than 30 days from the date of the violation of discipline, not counting the period of disability of the employee (this also includes maternity leave). At the same time, it is not allowed to apply disciplinary punishments later than 180 days from the day the labor offense was committed.

For your information

Termination of the contract with an employee for a repeated violation of discipline is permissible only if he has applied previously outstanding penalties. The period from the moment of application of these penalties to the dismissal of the employee should not exceed 1 year.

Thus, the dismissal of a woman for reprimanding will not have legal grounds..

Nuances

If an employer decides to fire an employee, he must ensure that his actions are reasonable and evidentiary. First of all, when applying disciplinary punishments, it is necessary to strictly adhere to the procedure for their imposition, indicated Labor Code RF. In addition, punishment can only be applied for non-fulfillment by an employee of those duties that are established by federal law or are reflected in the provisions of documents endorsed by him personally (employment contract, job description, various LNA operating in the organization).

Attention

Entering records of disciplinary sanctions imposed in the work book is not allowed.

The dismissal of an employee from work is always an unpleasant event, especially if it happened at the initiative of the employer. The Labor Code defines it as one of the types of disciplinary action. Such punishment is applied to employees who seriously violated the internal labor regulations. But it is worth considering that the dismissal process has a number of features. Often subordinates do not know their rights and do not even realize that the leader violates them.

In this article, we will talk about why you can fire an employee and how to do it. In addition, we will consider the procedure for issuing punishment, as well as those cases when dismissal will be considered illegal.

Reasons for leaving an employee may include:

• Systematic failure to fulfill their duties;
• Without good reason;
• Regular delays;
• Disclosure of trade secrets;
• Theft at work or damage to property;
• Failure to comply with labor protection requirements;
• Committing an immoral act;

All of the above grounds are gross violations of labor law. It is enough for an employee to commit it once so that the employer can apply a disciplinary sanction. In addition, it is possible to dismiss an employee for repeated failure to fulfill their labor duties. After several warnings, the employer may say goodbye to such an employee.

Application procedure

Dismissing an employee is not as easy as it seems at first glance. In order to apply dismissal as a form of disciplinary action, one must be guided by the laws and observe the features of this procedure. What is the right way to fire a violator?

• Require the employee to provide an explanation in writing;
• If there was no answer, draw up an act on the absence of explanations;
• from any three employees;

The most important thing when dismissing a subordinate is to require him to draw up an explanatory note. This is a very important step, without which your further actions may be considered illegal. Give the employee 2 working days to do this. If you have not waited for a written explanation, you need to draw up an act of refusal.

The dismissal order, as a rule, indicates the reasons for the punishment, and also describes the misconduct itself. The employee must familiarize himself with it and sign it within 3 days after drawing up.

How to issue a punishment?

Finally, in order to correctly issue a disciplinary punishment, you need an order to dismiss an employee. It is quite simple to compile it, since the legislation does not provide for clear requirements for its form. but the document must contain:

• Company name. It is indicated in the upper right part of the order. Also write the legal address of the organization;
• Document number and date of issue. This item should be in the center of the document;
• Title. The document must have the name - "Order (order) on the termination of the employment contract with the employee";
• The date of termination of the contract and the date of dismissal of the employee;
• Information about the employee. Here, indicate the full name of the employee, his structural unit and position;
• Reason for terminating the contract. Give the grounds for terminating the contract, as well as indicate the relevant legal norms;
• Information about the leaders of the organization. This part includes his full name, position and signature;
• Date of acquaintance of the employee with the order and his signature.

As a rule, the order is drawn up in a single copy. However, at the request of the employee, the manager is obliged to provide him with a copy of this document or draw up another original, certified by signature and seal. Gather as much evidence of employee violation as possible labor order. So, in addition to the explanatory and the order itself, which we mentioned earlier, the following documents will be useful to you:

• Reporting note;
• Act of violation committed;
• Commission decision;
• Written testimonies of witnesses;
• Memorandum on violation of labor discipline;
• Company internal documents.

Cases of illegal dismissal

As practice shows, many employers ignore the norms of the law, for example, they illegally dismiss subordinates from work. If an employee considers his dismissal unlawful, he can appeal it. So, the employee has the right to file a claim if:

• The dismissal order was drawn up improperly;
• When collecting documents, deadlines were violated;
• At the time of the order, the employee was on sick leave or on vacation;
• This reason for dismissal is not provided for by the Labor Code;
• The manager cannot explain the reasons for the dismissal.

First you need to try to resolve the dispute out of court. For example, the victim may apply to the Commission on labor disputes or . The inspector is obliged to consider the claim within 10 days, and then send the victim a written notice of the decision.

Also, the dismissed employee has the right. During the trial, the employer must prove the legality of their actions. As evidence, he can use written documents or testimonies of witnesses.

I. A. Kossov, Candidate of Yu. PhD, Russian State University for the Humanities

• Dismissing an employee as a disciplinary sanction
• Legal requirements for documenting the fact of committing a disciplinary offense that allows for the dismissal of an employee
• Legal requirements for documenting the dismissal procedure

Labor discipline is one of those factors without which a well-coordinated and effective work any organization. The current legislation defines labor discipline as obligatory obedience for all employees to the rules of conduct defined in accordance with the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation), other federal laws, a collective agreement, agreements, local regulations and an employment contract. One of essential responsibilities the employer is to create the conditions necessary for compliance by all employees without exception with labor discipline. At the same time, he is also vested with the right to bring violators of labor discipline to disciplinary responsibility, the basis of which is a disciplinary offense committed by an employee - failure to perform or improper performance due to his fault of the labor duties assigned to him. As part of disciplinary liability, an employee who has committed a disciplinary offense is subject to one of the disciplinary measures established by law - a disciplinary sanction.

However, before talking about the procedure for applying dismissal, it should be noted that bringing an employee to disciplinary liability is a right, not an obligation of the employer. V individual cases when the employer sees that the impact on the employee is possible without applying legal sanctions to him, he may limit himself, for example, to a conversation and a verbal warning. If the employer still decides to bring the employee to disciplinary responsibility, then he is obliged to strictly comply with the procedure established by law, which provides for a set of a number of mandatory actions, as well as the timing of their implementation. In turn, an integral part of this procedure is the documentation of the application of a disciplinary sanction. A clear knowledge of the existing legal requirements is necessary for both parties to the employment relationship. The employer gets the opportunity to make a lawful and reasoned decision on a specific disciplinary case and confirm his own correctness in the event of an individual labor dispute. The employee, in turn, will be protected as much as possible from possible violations by the employer of his legal rights and interests.

The dismissal of an employee is the most severe type of disciplinary sanction provided for in Part 1 of Art. 192 of the Labor Code of the Russian Federation (along with less strict ones - a remark and a reprimand). It can be applied for committing only the most serious disciplinary offenses, the list of which is determined by federal laws.

According to part 3 of Art. 193 of the Labor Code of the Russian Federation, the dismissal of an employee is possible only on the following grounds:

1. repeated failure to perform labor duties without good reason, if the employee has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);
2. a single gross violation by an employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation), which include:

a) absenteeism, that is, absence from the workplace without good reason throughout the 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 ( shifts);

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

c) disclosure of legally protected secrets (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) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed grave consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

In addition to the above grounds, which are general character, the Labor Code of the Russian Federation contains special grounds applicable only to the categories of workers specified in the law:

• the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation); as well as the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8 of part 1 of article 81 of the Labor Code of the Russian Federation), if the guilty actions or immoral offense were committed by the employee at the place of work and in connection with the performance of labor duties;
• adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9, part 1, article 81 of the Labor Code of the Russian Federation);
• a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).
• repeated within one year gross violation teacher charter educational institution(Clause 1, Article 336 of the Labor Code of the Russian Federation);
• sports disqualification for a period of six months or more (clause 1 of article 348.11 of the Labor Code of the Russian Federation);
• violation by an athlete, including a single violation, of the all-Russian anti-doping rules and (or) anti-doping rules approved by international anti-doping organizations, recognized as a violation by the decision of the relevant anti-doping organization (clause 2 of article 348.11 of the Labor Code of the Russian Federation).

The procedure for applying a disciplinary sanction in the form of dismissal is determined by Art. 193 of the Labor Code of the Russian Federation, as well as the provisions on the general procedure for processing the termination of an employment contract contained in Art. 84.1 of the Labor Code of the Russian Federation.

The day of detection of misconduct is the day when the person to whom the employee is subordinate (the head of the sector, department, department, directorate, etc.) became aware of the committed misconduct. It should be noted that in this case it does not matter whether the person who discovered the misconduct has the right to apply disciplinary sanctions or not. Misconduct must be documented. Such serious attention is paid to documentary confirmation of the misconduct, firstly, because subsequently these documents may become part of the evidence base of the committed offense, and secondly, because from the day the misconduct is discovered, the period allotted to the employer for applying dismissal begins. The current legislation does not impose any special requirements on the methods of fixing the majority of identified disciplinary offenses, therefore, these methods are determined based on the specifics of the offense committed, the circumstances of its commission, etc. As a rule, disciplinary offenses are recorded through memorandums, acts (audits, medical examinations, etc.), certificates. If an employee is brought to disciplinary responsibility for committing an offense under subpara. "g" p. 6 h. 1 art. 81 of the Labor Code of the Russian Federation, these facts and the guilt of the employee are confirmed by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses. Therefore, the employer needs to have properly certified copies of these documents. Sometimes, in order to clarify more detailed circumstances of a committed disciplinary offense, it is necessary to conduct internal check(investigation), which is appointed by order of the employer and is carried out, as a rule, by a specially formed commission. Upon completion of the internal audit, a conclusion (or act) is drawn up, which may become the basis for an order (instruction) to bring the employee to disciplinary responsibility.

The timing of the application of dismissal is important. According to Part 3 and Part 4 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the date of discovery of the misconduct. (In the event that an employee commits a disciplinary offense under subparagraph “d”, paragraph 6, part 1, article 81 of the Labor Code of the Russian Federation, the period must be calculated from the date the court verdict or decision on bringing to administrative responsibility comes into force.) This period is not included sickness time of the employee, stay on all types of leave (annual, unpaid, educational, etc.), as well as the time required to take into account the opinion of the elected trade union body. It is prohibited to apply a disciplinary sanction later than six months from the date of the misconduct (according to the results of an audit, audit of financial and economic activities or an audit - later than two years). These terms do not include the time of criminal proceedings.

In accordance with Part 1 of Art. 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer is obliged to request a written explanation from the employee. The explanation will contribute to an objective assessment of the behavior of the employee, and hence the correct choice by the employer of dismissal as a type of disciplinary sanction for this particular employee. In particularly difficult cases, it can also help to identify the proper perpetrator of the offense committed.

Two working days are given by law to write and provide an explanation to the employee. The employer must document the fact and date of bringing to the attention of the employee the requirement to provide an explanation. Such actions will serve as confirmation of the employer's compliance with the employee's right to give an explanation and will begin the period allotted for its provision. You can announce to the employee about the need to give an explanation by means of a notice drawn up in the following form:

LLC "GeoT"
NOTIFICATION Deputy Commercial
17.01. 2012 directors
No. 1 to N. I. Silov
Moscow

About providing
written explanation for
perfect disciplinary
misdemeanor

I suggest that you provide a written explanation of the reasons for your absence on January 16, 2012 at the workplace during the whole working day before 18.00 19.01.2012.

General Director (signature) K. N. Feofanov

Notice received January 17, 2012.
Deputy commercial director (signature) N. I. Silov
The provisions of Art. 193 of the Labor Code of the Russian Federation do not impose any special requirements for the employee's explanation, with the exception of an indication of its written form and the terms for submission. Therefore, the explanation must be drawn up in an arbitrary form in compliance with established requirements office work. Based on established practice, it is drawn up in the form of an explanatory note addressed to the employer (in this case, the person entitled to apply disciplinary sanctions). In it, the employee must state his own view of the event, explain the reasons for the misconduct, argue the circumstances that confirm or deny any facts, mitigate or even eliminate his guilt. It is recommended to write an explanatory note by hand.
An explanatory note can be formatted as follows:

Explanatory note to the General Director
LLC "GeoT"
January 17, 2012 to K. N. Feofanov

On January 16, 2012, I was absent from the workplace throughout the working day, the reason for which was a breakdown on the highway of my car. I had to wait for a tow truck to deliver the car to a car service. Due to the fact that after a call to the evacuation service, the battery mobile phone ran out of battery, I didn't have a chance to alert my supervisor about what had happened. At the same time, I consider that my absence on January 16 did not have any serious negative consequences For the company.

Deputy commercial director (signature) N. I. Silov

If after the expiration of the allotted time an explanation is not provided by the employee, then in accordance with Part 1 of Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to draw up an appropriate act. The legislator does not specify by what officials and in what terms the act should be drawn up, whether the signature of the employee on familiarization is required on the act. Based on this, we can conclude that the employer determines all this on his own, taking into account the existing rules of office work and the circumstances of a particular case. As practice shows, an act confirming the fact that the employee did not provide an explanation is drawn up by a group of people and contains the following details: the name of the organization, the name of the type of document, the date, place of compilation, the heading to the text, text, signatures. It is recommended that such an act be drawn up by a representative of the personnel management service with the involvement of the immediate supervisor of the employee, as well as 1-2 employees who are not related to this disciplinary offense, for example, working in another structural unit. Although the law does not provide for familiarization of the violator of labor discipline with the specified act, in order to avoid various kinds of misunderstandings, it is advisable to make such an attempt.

The employer has the right not to take into account the employee's explanation provided after the expiration of the deadline, unless the deadline was missed due to a reason the validity of which is beyond doubt. But still, it is advisable for the employer to familiarize himself with the contents of this document, since it may contain any important information which is important for making a decision, for example, on the choice of penalty or, in general, on the possibility of bringing an employee to disciplinary responsibility.

Failure to provide an explanation by the employee (even if there is a clear refusal) should in no case be considered as another disciplinary offense, since giving an explanation is a right, not an obligation of the employee. However, the absence of an explanation from the employer confirmed by the relevant act will not be due to Part 2 of Art. 193 of the Labor Code of the Russian Federation as an obstacle to the application of a disciplinary sanction.

In order to avoid violations of the rights of workers, the legislator in Part 5 of Art. 192 of the Labor Code of the Russian Federation established that when imposing a disciplinary sanction, the employer must take into account the gravity of the offense(in particular, the resulting negative consequences for the employer) and the circumstances under which it was committed(for example, time, place, motives and manner of committing). And already taking into account these factors, make a decision on the choice of one or another type of penalty. In the event of a labor dispute, the employer will have to prove to the jurisdictional body that these factors were taken into account when choosing a disciplinary sanction.

A disciplinary sanction in the form of dismissal should not be applied to working pregnant women (part 1 of article 261 of the Labor Code of the Russian Federation). When deciding to dismiss a violator under the age of 18, the employer must first obtain the consent of the State Labor Inspectorate and the Commission on Juvenile Affairs and the Protection of Their Rights.

Dismissal of an employee who is a member of a trade union for an offense under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation (repeated non-fulfillment of labor duties without valid reasons, if he has a disciplinary sanction), is allowed only taking into account the reasoned opinion of the elected body of the primary trade union organization. The procedure for taking into account the opinion of this body is defined in Art. 373 of the Labor Code of the Russian Federation. If a decision is made to dismiss an employee, the employer sends there a draft order and copies of all documents that are the basis for dismissal. If, within seven working days from the date of receipt of the documents, the trade union committee does not submit its reasoned opinion in writing, the employer has the right not to take it into account when terminating the employment contract. If the opinion is submitted, then the right of the employer to terminate the contract is retained for one month from the date of receipt of the relevant document. Periods of temporary disability of the employee, his stay on vacation, other periods of absence from work, when the employee retains the place of work (position) are not counted in the monthly period. At the same time, it should be borne in mind that the employer is obliged to take into account the opinion of the trade union committee, and not unconditionally agree with it. A document containing a reasoned opinion of the elected body of the primary trade union organization is attached to the order (instruction) to terminate the employment contract.

Application of dismissal is made out by the order (instruction) of the employer. For employers - legal entities, the right to sign such an order (instruction) is most often vested in the sole executive agency(director, general director, etc.). But sometimes the right to bring employees to disciplinary responsibility can be transferred by the head of the organization to another official, for example, the deputy for personnel (personnel). Employer - individual, which is individual entrepreneur, signs the order (instruction) personally.

When issuing an order (instruction), a unified form No. T-8 “Order (instruction) on the termination (termination) of an employment contract with an employee (dismissal) is used ». When dismissing several employees, the unified form T-8a “Order (instruction) on the termination (termination) of an employment contract with employees (dismissal)” is used.

According to part 6 of Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to announce an order (instruction) on the application of a disciplinary sanction to the employee against receipt within three working days from the date of its publication. The provisions of Art. 84.1 of the Labor Code of the Russian Federation, which regulates general order registration of the termination of the employment contract and extending its effect, among other things, to the termination of the employment contract in connection with the commission of a disciplinary offense by the employee, also oblige the employer to familiarize the dismissed employee with the order (instruction) on termination of the employment contract. True, unlike Art. 193 of the Labor Code of the Russian Federation, it does not define specific time periods for familiarization. Therefore, it seems that the employer must familiarize the dismissed employee with the order (instruction) during the allotted art. 193 of the Labor Code of the Russian Federation for a three-day period, but no later than last day his works.

Some questions also arise regarding the registration of the employee's refusal to familiarize himself with the order (instruction) on the termination of the employment contract. According to the general rule enshrined in Art. 193 of the Labor Code of the Russian Federation, if the employee refuses to familiarize himself with the order (instruction) on the application of a disciplinary sanction against signature, an appropriate act is drawn up. The legislator does not impose any special requirements on such an act, therefore it can be drawn up by analogy with an act on the employee's failure to provide a written explanation.

In turn, Art. 84.1 of the Labor Code of the Russian Federation, in the event of an employee’s refusal to familiarize himself with the order (instruction) to terminate the employment contract or the impossibility of bringing it to the attention of the employee, it does not require the drawing up of an act, but prescribes to produce on the order (instruction) the appropriate record. The legislator does not specifically determine whether the fact of the employee's refusal to familiarize himself or herself is certified collegially or individually and whose signature (or signatures) should be under this specified entry.
It seems that the entry on the order (instruction) may look like this:

"N. I. Silov refused to familiarize himself with the order.” Head of the Personnel Department Z. I. Komova. 01/24/2012 or: "N. I. Silov familiarized himself with the order, refused to sign the familiarization. Head of the Personnel Department Z. I. Komova. 01/24/2012 Very often in practice the question arises of how to fix the employee's refusal to familiarize himself with the order (instruction) - draw up an act, guided by the established Art. 193 of the Labor Code of the general procedure for the application of disciplinary sanctions, or make an appropriate entry, guided by that enshrined in Art. 84.1 of the Labor Code of the Russian Federation the general procedure for processing the termination of an employment contract? The legislator does not give an extremely clear and unambiguous answer to this question. Therefore, in order to avoid possible misunderstandings caused by some inconsistency between the articles of the Labor Code of the Russian Federation, employers, when terminating an employment contract due to a disciplinary offense committed by an employee, often, along with an entry on the order, also draw up an act.

Dismissal is the only type of disciplinary sanction, information about which is reflected in the work book of the employee. Registration of a dismissal record is made in accordance with the Rules for maintaining and storing work books, preparing work book forms and providing employers with them and Instructions for filling out work books of the Provision of Art. 84.1 of the Labor Code of the Russian Federation oblige the employer to issue a work book to the employee on the day the employment contract is terminated. In all cases, such a day is the last day of work of the employee, except for cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, the place of work (position) was retained. It must be remembered here that Art. 127 of the Labor Code of the Russian Federation does not allow, upon dismissal of an employee for guilty actions, to provide him with leave with subsequent dismissal.

On the day of termination of the employment contract, the employer is also obliged to pay the employee in accordance with Art. 140 of the Labor Code of the Russian Federation and, if the employee has a corresponding written application, issue him duly certified copies of documents related to work.

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send a notice to the employee about the need to appear for a work book or agree to send it by mail ( by registered mail with notification of delivery to the addressee). From the date of sending such a notification, the employer is released from liability for the delay in issuing a work book. Also, liability for the delay in issuing a work book does not arise in cases where the last day of work does not coincide with the day the termination is issued. labor relations upon dismissal of an employee on the grounds provided for in sub. "a", paragraph 6, part 1, art. 81 of the Labor Code of the Russian Federation (truancy).

At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the request.

Thus, in the process of applying a disciplinary sanction to an employee in the form of dismissal, the employer should form the following package of documents:

1. documents confirming the commission of a disciplinary offense by an employee: memorandums; acts; conclusions; a copy of the court verdict; a copy of the decision of the judge or other body authorized to bring to administrative responsibility; a copy of the previous order (instruction) on bringing the employee to disciplinary responsibility, if the employee has a disciplinary sanction, etc.;
2. a document containing the employee's explanation - explanatory letter. Or an act confirming the employee's failure to provide an explanation;
3. documents on the application of a disciplinary sanction to the employee: an order (instruction) to terminate the employment contract; an act confirming the employee's refusal to familiarize himself with the order (instruction) against signature - in case of the employee's refusal to familiarize himself with the order (instruction).

According to Art. 192 of the Labor Code of the Russian Federation, one of the types of disciplinary sanctions is dismissal on appropriate grounds.

Article 81 of the Labor Code of the Russian Federation provides for several grounds for dismissal, which fall under dismissal, which is a measure of disciplinary action. Below we will consider all these cases.

Since dismissal on the above grounds is a disciplinary sanction, it is necessary to strictly follow the procedure for applying the penalty established by Art. 193 of the Labor Code of the Russian Federation.

Dismissal due to repeated non-performance an employee without valid reasons for labor duties (clause 5, article 81 of the Labor Code of the Russian Federation).

In cases of reinstatement of persons dismissed on this basis, the employing organization, in accordance with clause 34 of Resolution No. 2, is obliged to provide evidence proving that:

• - the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract;
• - the employer complied with the deadlines for applying a disciplinary sanction.

Dismissal on this basis is legal if:

• 1. the employee has committed a disciplinary offense in the form of non-fulfillment or improper fulfillment of the labor duties assigned to him without good reason;
• 2. for a previous misconduct, a disciplinary sanction was applied to him in the form of a remark or reprimand;
• 3. at the time of repeated non-fulfillment by him without good reason of labor duties, the disciplinary sanction was not removed and not extinguished in the manner prescribed by Art. 194 of the Labor Code of the Russian Federation.

Example. On March 15, an employee of the organization was late for work by 30 minutes without good reason. On the same day, an order was issued to announce a reprimand to him.

Since the employee has previously committed a disciplinary offense for which a disciplinary sanction was applied to him, and this sanction has not been paid off, the organization has the right to dismiss him under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation.

The organization has the right to dismiss the employee on this basis even if he has filed an application for termination of the employment contract on own will, and then committed a disciplinary offense, having a previously imposed and outstanding disciplinary sanction.

Failure to perform or improper performance by the employee of the labor duties assigned to him, in particular, includes:

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

If in the employment contract concluded with the employee, or in the local normative act organization (order, schedule, etc.) does not specify a specific workplace employee, then in the event of a dispute on the issue of Where the employee is obliged to be in the performance of his labor duties, it should be assumed that the workplace 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 employing organization (paragraph six of Art. 209 of the Labor Code of the Russian Federation);

b) refusal or evasion without valid reasons from medical examination of employees of certain professions, as well as refusal of an employee to pass work time special training and examinations in occupational health, safety and operating rules, if this is prerequisite permission to work.

When applying disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation) in the event that it was not concluded simultaneously with the employment contract in accordance with paragraph 36 of Resolution No. 2, organizations must proceed from the following.

Fulfillment of duties for the maintenance of material assets may be the main labor function employee, and this is negotiated when hiring. In accordance with the current legislation, in this case, an agreement on full liability can be concluded with the employee, which the employee undoubtedly knew about. In this case, the employee's refusal to conclude such an agreement should be considered as a failure to fulfill his labor duties with all the ensuing consequences.

The need to conclude an agreement on full liability may also arise after the conclusion of an employment contract with an employee. For example, due to the fact that after a change in the current legislation, the position occupied by the employee or the work performed is included in the list of positions and work replaced or performed by employees with whom the employer can enter into written agreements on full liability. If the employee in such a situation refuses to conclude an agreement on full liability, the organization is obliged to offer him another job (paragraph three of Article 73 of the Labor Code of the Russian Federation), and in its absence or the employee’s refusal from the proposed job, the employment contract may be terminated in accordance with paragraph 7 st. 77 of the Labor Code of the Russian Federation.

Since the law provides for the right of the employer to early recall the employee from vacation to work only with his consent (paragraph two of Article 125 of the Labor Code of the Russian Federation), the employee’s refusal (regardless of the reason) to comply with the employer’s order to return to work before the end of the vacation cannot be considered as a violation of labor discipline .

Dismissal for absenteeism (subparagraph "a", paragraph 6 of article 81 of the Labor Code of the Russian Federation).

On this basis, an employee may be dismissed:

• a) for absenteeism from work without good reason, i.e. for 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 leaving work without a valid reason by a person who has concluded an employment contract for an indefinite period, without warning the employer about the termination of the contract, and also before the expiration of the two-week warning period (paragraph one of Article 80 of the Labor Code of the Russian Federation);
• d) for leaving work without a valid reason by a person who has entered into a fixed-term employment contract, before the expiration of the contract or before the expiration of the notice period for early termination of the employment contract (Article 79, paragraph one, Article 80, Article 280, paragraph one, Article 292, paragraph one of article 296 of the Labor Code of the Russian Federation);
• e) for unauthorized use of days off, as well as for unauthorized leave on vacation (basic, additional).

At the same time, the use of rest days by an employee is not absenteeism in the event that the employer organization, in violation of the obligation stipulated by law, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, refusal to provide an employee who is a donor in accordance with paragraph four of article 186 of the Labor Code of the Russian Federation and article 9 of the Law of the Russian Federation of 09.06.1993 N 5142-1 "On the donation of blood and its components" of the day of rest immediately after each day of donating blood and its components).

If the dismissal is made in connection with the refusal of the employee transferred to another job to start it, then in the event of a court hearing to reinstate him at work, the organization will be obliged to provide evidence of the legality of the transfer itself (Articles 72, 74 of the Labor Code of the Russian Federation). If the transfer is declared illegal by the court, then dismissal for absenteeism cannot be considered justified and the employee must be reinstated in his previous job.

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

On this basis, employees who were during working hours at the place of performance of labor duties in a state of alcoholic, narcotic or other toxic intoxication may be dismissed. It does not matter if the employee was previously suspended from work due to this condition.

Dismissal may also follow when the employee during working hours was in this state not at his workplace, but on the territory of this organization or on the territory of the facility, where, on behalf of the employer, he had to perform a labor function.

The state of alcoholic or other intoxication can be confirmed both by a medical report and other types of evidence, which must be assessed accordingly by the court.

Dismissal in connection with the disclosure of secrets protected by law (subparagraph "c", paragraph 6 of article 81 of the Labor Code of the Russian Federation).

The information that the employee has disclosed must be classified as a state, official, commercial or other secret protected by law in accordance with applicable law (for example, Federal Law of July 29, 2004 N 98-FZ "On Commercial Secrets").

In order to dismiss an employee on this basis, the following conditions must be met:

1) the employee must know the list of information that is a secret.

The list of such information must be fixed in the employment contract with the employee, local regulatory act (regulation or other internal document of the organization), etc. The employee must be familiarized with this list against receipt and after that must give a non-disclosure agreement for such information;

2) this information must become known to the employee in connection with the performance of his labor duties.

Dismissal in connection with the commission of theft at the place of work (subparagraph "g", paragraph 6 of article 81 of the Labor Code of the Russian Federation).

On this basis, employees who have committed theft (including petty) of another's property, embezzlement, deliberate destruction or damage to it can be dismissed. Provided that these illegal actions were committed by them at the place of work and their guilt is established by a court verdict that has entered into legal force or by a decision of a body authorized to apply administrative penalties.

Any property that does not belong to the this employee, in particular property belonging to the employer, other employees, as well as persons who are not employees of this organization.

Dismissal in connection with the commission of guilty actions by an employee directly serving monetary or commodity values, as well as in connection with the commission by an employee performing educational functions of an immoral offense (paragraphs 7, 8 of article 81 of the Labor Code of the Russian Federation).

Termination of an employment contract in connection with the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7 of article 81 of the Labor Code of the Russian Federation). It is allowed only in relation to employees directly servicing monetary or commodity values ​​(reception, storage, transportation, distribution, etc.), and provided that they committed such guilty actions that gave the employer reason to lose confidence in them.

If the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, these employees may be dismissed on the basis of loss of confidence in them and in the event that these actions are not related to their work.

Termination of the employment contract under paragraph 8 of Art. 81 of the Labor Code of the Russian Federation for the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work is allowed only in relation to those employees who are engaged in educational activities. For example, teachers educational institutions, masters of industrial training, educators of children's institutions, regardless of where the immoral offense was committed: at the place of work or at home.

If the guilty actions that give rise to the loss of confidence, or an immoral offense are committed by the employee at the place of work and in connection with the performance of his labor duties. That dismissal on these grounds is a measure of disciplinary action, and the employee may be dismissed from work, subject to the procedure for applying disciplinary sanctions established by Art. 193 of the Labor Code of the Russian Federation.

At the same time, the termination of the employment contract under paragraphs 7, 8 of Art. 81 of the Labor Code of the Russian Federation can also be carried out in the case when guilty actions that give rise to a loss of confidence, or an immoral offense are committed by an employee not at the place of work and not in connection with the performance of his labor duties.

In these cases, dismissal is not a measure of disciplinary action, since, by virtue of the first paragraph of Art. 192 of the Labor Code of the Russian Federation, disciplinary sanctions are applied only for non-performance or improper performance by the employee through his fault of the labor duties assigned to him (clause 47 of Resolution No. 2).

Dismissal in connection with the adoption of an unreasonable decision by the head of the organization, his deputies and the chief accountant (clause 9, article 81 of the Labor Code of the Russian Federation).

Termination of an employment contract on this basis is permissible only if the unreasonable decision made has entailed a violation of the safety of property, its misuse or other damage to the property of the organization.

In deciding whether the decision unreasonable, it must be taken into account whether the said adverse consequences occurred precisely as a result of making this decision or could have been avoided if another decision was made.

If, during the judicial review of the reinstatement case, the organization does not provide evidence confirming the occurrence of the above adverse consequences, dismissal on this basis cannot be recognized as legal.

Dismissal in connection with a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (clause 10, article 81 of the Labor Code of the Russian Federation).

The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case. At the same time, the obligation to prove that such a violation actually took place and was of a gross nature lies with the employer.

As a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded, in particular, the failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization.

Leaders of others structural divisions organizations and their deputies, as well as Chief Accountant organizations cannot be dismissed on this basis. However, the employment contract with them can be terminated for a single gross violation by them of their labor duties under paragraph 6 of Art. 81 of the Labor Code of the Russian Federation, if the acts committed by them fall under the list of gross violations specified in subparagraphs "a" - "e" of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation discussed above, or in other cases provided for by federal laws.