The employee was not informed that he was fired. What to do if the employer unilaterally dismissed without warning. In writing

How to fire a person if he does not want to leave work
The most common reasons for layoffs
Dismissal for truancy
Absence for work is the reason for dismissal
How to fire a pregnant employee
Inappropriateness of the position held

How to fire a person if they don't want toleave work

From time to time, employers are faced with a rather difficult question to resolve - how to fire an employee without his desire. For the correct answer to such a question, you should thoroughly study legal framework, get acquainted with difficult cases in practice. Labor legislation represented by many different regulatory legal acts, which, in particular, provide a relatively larger number of benefits and privileges for workers. Their rights are maximally protected from encroachments and illegal violations. That is why the question of dismissing employees without their consent is not easy and requires the utmost care from the boss.

Legal basis for dismissal without the employee's desire

The main act of national legislation that is capable of settling such disputes between subjects is the Labor Code of the Russian Federation. It contains key concepts and rules for the application of articles, clarified and more widely disclosed in specialized regulations.

First of all, it is recommended to calmly discuss this issue with the employee. So it becomes possible to persuade him to write a letter of resignation on on their own, as well as avoid many time-consuming processes with documents and lawyers. If it was not possible to reach an agreement, answer the question "How to dismiss an employee according to the law?" Article 81 of the Labor Code of the Russian Federation will help you. It describes in detail how to carry out such an operation. All labor legislation of the Russian Federation is aimed at maximum protection of the rights of employees, aimed at resolving most disputes in their favor.

Dismissal for truancy

According to subparagraphs a of clause 6 of Article 81 of the Labor Code, absenteeism is considered a one-time violation by an employee in a gross form of his obligations under an employment contract. Based on the analysis of the text of the presented article, absenteeism can be considered the complete absence of an employee from the workplace during the working day / shift, regardless of its total duration. The subordinate must documentarily prove a valid reason for the absence. Otherwise, the employer may consider how to fire the employee for absenteeism.

Following jurisprudence, namely, the resolution of the Plenum of the Armed Forces of the Russian Federation of 03.17.04, one can single out specific situations that are officially considered absenteeism. These include, in particular:

skipping a working day without a valid reason;
unauthorized use of vacation days or time off without warning of the chief;
for no particular reason being out of the workplace for more than 4 hours in a row;
a number of other reasons specified in this regulation.

How to fire a pensioner without his desire

Dismissal of a pensioner does not provide absolutely any benefits and additional conditions for the employee. If you follow practice, a pensioner can be legally dismissed without his consent in the following cases:

significant staff cuts;
inadequacy of the position due to age or health reasons;
the impossibility of performing the presented work due to health and a number of other reasons.

Dismissal of an employee is a termination, therefore on dismissalm understandonly termination labor relations ... If your employee works within the framework, then the termination of the contract with him is not a dismissal.

The grounds on which the dismissal of an employee is possible are listed in several articles of the Labor Code of the Russian Federation (71-75, 77-81, 83, 84) and among them:

agreement of the parties;
termination of the employment contract at the initiative of the employee;
termination of an employment contract at the initiative of the employer;
transfer of an employee to another employer or transfer to elective work;
the employee's refusal to continue working in connection with a change in the owner of the organization, changes in the terms of the employment contract, when transferring to work in another locality;
circumstances beyond the control of the parties and other grounds.

If the termination of an employment contract does not occur by mutual agreement of the parties, then dismissal is not the most pleasant procedure, both for the employee and for the employer. Each of the grounds for termination of employment has its own characteristics, failure to comply with which may lead to the employee demanding reinstatement at work in court. If he achieves this, the employer will have to pay for the time of the forced absence.

Features of dismissal of an employee on some grounds

To avoid violation of personnel legislation, we propose to understand how the dismissal of an employee should be formalized in the most frequent cases of termination of labor relations. When dismissing for other reasons, it is imperative to understand those provisions of the Labor Code of the Russian Federation (articles mentioned above) that govern a specific case.

1. Dismissal of an employee at his own request or by agreement of the parties

The employee must inform about the decision to voluntarily resign in writing no later than two weeks before the dismissal (Article 80 of the Labor Code of the Russian Federation). The letter of resignation is submitted by the employee personally or by registered mail. The two-week working period may not be respected if the employer agrees to dismiss the employee earlier... The period of notice of voluntary dismissal is reduced to three days if the employee leaves during the period probationary period, he was engaged in seasonal work or a contract with him was concluded for up to two months.

In addition, the employer cannot refuse to dismiss an employee without working two weeks if:

the employee's rights enshrined in the employment contract were violated, and this violation was recorded by the court or labor inspectorate;
the employee cannot continue to work due to retirement, enrollment and other important reasons.

And if the employee changed his mind about quitting? Yes, it also happens: I wrote a letter of resignation of my own free will and, after completing the prescribed two weeks, I decided to continue working for the good of the employer who almost became a former. It is impossible to dismiss such an employee, even if he changes his mind on the last working day, and another candidate has been found to replace him. An exception is possible only for one rather rare situation - if an employee was invited in writing to replace the quitting employee by transfer from another company.

Registration of documents in the case of an employee who changed his mind to quit depends on whether the order for his dismissal was signed at that time. If the order has not yet been signed, then the employee must only write a request to withdraw the letter of resignation. If a dismissal order is issued, an entry is made in, the salary and compensations are calculated, drawn up, then the issued order must be canceled, the entry in the work book is canceled, and the compensations paid are returned.

Another nuance associated with the desire of the quitting employee to stay at work - if an application was submitted for a vacation from subsequent dismissal... In this case, the employee must report that he has changed his mind before going on vacation, otherwise he cannot withdraw the letter of resignation.

With a free consent, terminate labor contract dismissal is possible not only at the request of the employee, but also by agreement of the parties... The agreement stipulates the date of termination of the employment relationship (this period is not regulated by anything) and, in some cases, the payment of additional compensation to the employee. This option of dismissal can be convenient if the employee must complete a certain amount of work, for example, take an inventory or submit reports, which takes more than two weeks. The employee will not be able to refuse unilaterally from the agreement of the parties, in contrast to the statement of his own free will.

2. Dismissal based on the results of the probationary period

If an employee was hired with a test condition that he did not cope with, he can resign by submitting an application of his own free will. If he does not want to quit voluntarily (although this is in his interests, since the record of resignation for such a reason harms his reputation as an employee), then the employment contract can be terminated at the initiative of the employer. It is necessary to warn the employee about dismissal on this basis three days before the termination of the employment relationship, in writing and indicating the reasons for such a decision.

Such motives can be:

a memo of the immediate superior about how the employee showed himself;
customer or customer complaints about an employee;
written reports from the employee himself indicating the work done during the probationary period;
acts stating that the employee does not fulfill the plan or performance standards;
a disciplinary offense committed by an employee;
other explanations that prove that the employee is not suitable for the job for which he was hired.

If the employee refuses to sign a notice that he has not passed the probationary period, a separate act must be drawn up about this, indicating the witnesses.

3. Dismissal of an employee for absenteeism

It is considered a truancy absence of an employee from the workplace without good reason for more than four hours in a row during the working day or shift (Article 81 (6) of the Labor Code of the Russian Federation). What reasons can be recognized as valid, it is advisable to prescribe in the contract - labor or collective. If disagreements arise on this matter, the commission on labor disputes or in court. Absenteeism is also equated to situations when an employee arbitrarily went on vacation (time off) or did not warn the employer about early termination of the contract or dismissal of his own free will.

The fact of absenteeism must be documented, that is:

Make a mark on the timesheet. While the reason for the absence of the employee is unclear, they make a note "NN" in the report card. If later it turns out that the employee is ill and provides a certificate of this, then the mark must be changed to "B", but if the fact of absenteeism is confirmed, then the mark is changed to "PR".
Send the employee a written notice asking him to explain the reasons for the absence from work. The employee is given two working days to give explanations from the date of receipt of the notification.
Draw up an act on the absence of an employee at the workplace or a memorandum from the immediate superior addressed to the head of the organization or individual entrepreneur. The period of absence of the employee is indicated in hours and minutes.

If the absence of an employee lasted one or two days, he could not give an explanation for his absence or refused to give explanations (about which an act must be drawn up), then everything is quite simple. Based on all the collected documents confirming the fact of absenteeism, the employer issues a dismissal order, which is handed to the employee against signature or sent to him by registered mail within three working days. The date of dismissal of the employee will be the last working day before absenteeism. Days when an employee was absent for disrespectful reasons are naturally not paid.

But what to do when an employee has disappeared for several days, does not answer calls, it is impossible to contact him by other means and give him a notification demanding to explain the reasons for his absence from work? And if he moved to another city at all? The employer has no obligation to look for an employee, but in order to protect yourself in the event of a labor dispute, you will have to draw up an act of absence of the employee every working day. The Labor Code does not provide any guidance on when to stop trying to contact a missing worker and fire him, but of course the wait cannot last forever.

With the wording “fired for absenteeism,” an employee can be fired only within a month after the fact of his first absence from work was recorded, while it is assumed that the employee was still contacted and made sure that he was absent for disrespectful reasons. In practice, employers agree that, after the daily drawing up of the relevant acts and repeated sending of written notifications to the employee's home address within a month, they issue a dismissal order for absenteeism, although this is formally unacceptable. Until the employee is found and no explanations are received from him, it is impossible to fire him precisely for absenteeism.

In addition, there is a risk that the declared employee will file a lawsuit, and if, indeed, the reasons for his absence are recognized by the court as valid, then the employer will have to reinstate the employee and pay him all the missed days. It must be said that the court does not always take the side of such workers. The claim may be refused, even if the employee was sick, that is, he was absent for a good reason, but at the same time, having such an opportunity, he did not report the reason for his absence from work.

And the safest way is to wait for the employee for a year (all the same, his salary for these days is not charged, and his work is performed by other employees), and then go to court with a claim to recognize the employee as missing. After receiving such a court decision, the employee is dismissed in accordance with Article 83 (6) of the Labor Code of the Russian Federation.

4. Dismissal to reduce the number or staff

Option dismissal of an employee is difficult for the employer to document and involves the payment of compensation to the employee in the amount of up to three monthly salaries (Article 178 of the Labor Code of the Russian Federation).

First of all, it is necessary to issue an order to reduce the number or staff and report this two months before the reduction to the employment service and to the trade union (if any). Further, it is necessary to determine which of the employees, according to article 179 of the Labor Code of the Russian Federation, has preemptive right keep workplace... It must be borne in mind that the following categories of workers cannot be dismissed by reduction:

employees on vacation or sick leave;
pregnant women;
women with children under the age of three;
single mothers (or workers raising a child without a mother) with children under 14 or a disabled minor child.

After a list of workers who have been laid off has been drawn up, each of them must be notified in writing at least two months before the expected date of dismissal. If the employer has any other vacancies, including lower-paid ones, it is necessary to offer them in writing to the downsized employee, and if he agrees to this, arrange for a transfer to another job.

5. Dismissal due to the expiration of the employment contract

In general, an employment contract is open-ended, but there is whole line the grounds on which the employment relationship is concluded. In this case, the expiration of the term of the employment contract in itself is not a reason for its termination, therefore this must be requested by one of the parties(employer or employee).

True, there are a number of situations when notifying about the expiration of the contract is not required to terminate it:

the contract involves the performance of certain work that is completed by the employee;
the contract is concluded for the duration of the seasonal work and this season is over;
the employee was hired for the duration of the duties of the absent employee, and he returned to his work duties.

In all other cases, it is necessary to notify the employee against signature three days before the expiration of the employment contract. If the parties wish to continue the labor relationship, then it is only necessary to draw up additional agreement to the agreement that it is considered concluded for an indefinite period. Naturally, the dismissal of the employee does not occur in this case.

Dismissal procedure

The procedure for formalizing the termination of an employment contract is given in article 84.1 of the Labor Code of the Russian Federation:

Termination of an employment contract with an employee an order is issued... Naturally, before the order is issued, the dismissal procedure must be followed for a specific reason (a statement was made of his own free will; an agreement of the parties was signed; the fact of absenteeism was established; the employee was warned in writing about the expiration of the employment contract, etc.). The employee must be familiarized with the order of dismissal against signature, and if it is impossible to do this or the employee refuses to sign, then a record is made about it.
On the day of dismissal with the employee, you must issue and make a full calculation(that is, salary not received; compensation for unused vacation, if he is; other mandatory payments). The cases in which the employer must pay compensation to the dismissed employee are indicated in Chapter 27 of the Labor Code of the Russian Federation. In addition, they can be provided for by an employment contract or agreement of the parties. If the employee disputes the amount of payments, then the employer must issue on that day at least the amount with which he agrees.
On the day of termination of employment, the employee must issue with a note of dismissal, and certificate of the amount of salary and other payments on which the insurance premiums... An employee may also request in writing certified copies of other documents related to his work. If the employee is absent on the day of dismissal, the employer must send a notification to the employee at his home address about the need to appear for a work book or agree to receive it by mail.

Where can a dismissed employee complain?

If the employee thinks that he was fired illegally, and in some cases just to cause trouble former employer, he has the right to apply to the labor inspectorate, the prosecutor's office or the court.

The labor inspectorate can limit itself to requesting documents for a dismissed employee, or it can conduct an unscheduled inspection of the employer, and then all personnel documents... If the personnel documentation is kept in order, and the documents on the dismissal of the employee who became the reason for the check clearly prove the employer's correctness, then there is nothing wrong with such a check for him. If the labor inspectorate recognizes that the employee was dismissed illegally, it will issue an order to reinstate the employee. Disagreement with the order will have to be challenged in court, and a fine under Art. 19.5 of the Administrative Code of the Russian Federation (up to 20 thousand rubles for an organization and up to 2 thousand rubles for an official).

A complaint from a dismissed employee to the prosecutor's office most often leads to the fact that the same labor inspectorate is dealing with the issue, but the prosecutors themselves may appear to the employer without warning. They cannot write an order to reinstate the employee, but they are obliged to refer the case of violation of his rights to the court (if such facts were discovered).

An employee can apply to the court on his own or documents on his case can be submitted by the labor inspectorate (or the prosecutor's office). If the court takes the side of the employee, then the employer must:

issue an order to revoke the previous order of dismissal;
restore the employee to his previous workplace;
cancel the dismissal record in the work record book or issue a duplicate work record book without this record;
pay an employee wages during the forced absence;
pay compensation for non-pecuniary damage, if it is specified in the court decision.

Of course, it is hardly worth expecting normal labor relations after the employee is reinstated at work in court, therefore, it is in the employer's interests to comply with all the rules and terms of dismissal on various grounds.

Making a decision to leave is often easier than communicating it. An employee who has thought to quit can not muster the courage to inform his boss about his intention, and the boss, who has to lay off several dozen or even one person, suffers from doubts for a long time whether he is doing the right thing.

How best to report dismissal

Getting fired is always a pretty touchy topic of conversation. Each of the parties wants to part in an amicable way, to avoid grievances and mutual claims, but, unfortunately, not always and not everyone succeeds. That is why it is worth trying in advance to prepare the ground for a conversation about dismissal, and also try to think over the very outline of this not very pleasant conversation.

You can look at the conversation about dismissal from two sides:

when a subordinate informs the manager about leaving;
when the manager informs the subordinate that the latter will have to leave the company.

The reasons for both cases may be different, the general need remains to somehow convey information to the opposite side. We will not consider here the case of tacit written notice and presentation of the fact, but we will assume that both the employee and his management act with a desire to maintain friendly relations even after separation.

Regardless of who is the initiator of the conversation, you should take care of comfortable conditions for the conversation. There are no universal tips and tricks that will suit everyone and everyone in this matter, but even a minimal knowledge of human psychology suggests that you should choose a time for a conversation when a person is peaceful, complacent and in no hurry. That is why, when planning a conversation, it is better to build on the characteristics of the person to whom the unpleasant news is to be told. The conversation is best done in private, you need to choose a place and time when no one can interfere and disrupt the course of communication.

How to leave the company beautifully

First of all, it is necessary to keep in mind, as a guideline, the desire to maintain good relations with bosses and colleagues, who will soon turn from current to former. This will help you sleep well when a potential employer wants to test your professional or communication skills by talking with former employers. In addition, it is possible that you will meet with some of your current colleagues in the future as a boss or a subordinate. In other words, you should never rush to burn bridges.

Talking about dismissal should be taken very seriously, but without any extra nerves.

It is always better to talk on such sensitive topics in private. If you work in an open space, book a meeting room to communicate with the boss so that random people cannot interfere with you. There are no ideal recipes and scenarios for a conversation, since a lot will depend on your relationship with the management, on the situation in the team, as well as on the factors that caused the dismissal. It is better to voice this reason as sincerely as possible, while trying to observe delicacy. You should not categorically inform your boss that the work has become boring for you, the working conditions are unpleasant, and the salary is low. Find a more tactful way to get your message across to the other person. You may have been offered more interesting conditions work (for example, remote work) and a more highly paid position. It may be that your family circumstances have changed, and it became difficult for you to work in the mode adopted by the company (for example, your spouse received an offer to move to work in another city or country). Or you just feel that you have exhausted yourself in the direction in which you have been working all this time, and would like to try something new. The reasons for leaving can be very different, but it is imperative to find a way to communicate them so that you are understood correctly. It is very important to thank your manager, and later your colleagues, for helping you to gain an interesting professional experience.

A competent leader will be able to understand your motives and adequately respond to the information received. If you are firm in your intention to leave the company, it is worth considering in advance the arguments in the event that, in an attempt to keep you in the company, you will be offered a raise in salary or position, an interesting project or business trips abroad. However, you should not try to manipulate people in order to get such an offer. Deception can be exposed, and this does not at all strengthen your position in the company.

According to the norms of the Labor Code, it is necessary to notify the employer of the planned care fourteen days before this event. In some circumstances, it is better to stop being a formalist and talk to management about your intentions in advance, for example, three or four weeks before leaving. This will allow the company to find you a replacement, take over your current affairs and projects, and you will earn a reputation as a person responsible for the success of a common cause.

Video: how to leave beautifully

How to fire a person and not become his enemy

Every leader will have to learn how to fire people one day. Those who have such experience will say that there are no two identical dismissals, just as there are no two identical human destinies. There can also be a lot of reasons why a manager may want to part with a particular employee, from the banal "they didn't agree" to malicious violations. It is always worth approaching the dismissal very carefully, because an offended employee, even if he was fired for the case, can go to court and start taking revenge in other ways, for example, ruining the company's reputation among potential partners and clients, on the Internet, in general communication circles. Next, we will consider several options for how a manager can part with an employee he dislikes as painlessly as possible for both parties.

While doing his job, each person pursues, among other things, certain personal goals, strives for new opportunities. Work can give him a chance to realize his aspirations, and maybe vice versa. The best way dismiss a person on a positive wave - help him realize his goals, as well as the goals and capabilities of the structure in which he works. For example, HR specialists consider one of the most effective ways non-directive staff reduction; conducting corporate training on awareness of personal goals simultaneously with a strategic session of the company's goals. Thus, a person can realize that, frankly, his vital interests and aspirations are directed in one direction, and the company in which he works is moving in the opposite direction. The desire to quit in such circumstances will arise by itself. This method of dismissal is applicable when there is no question of how to dismiss such an objectionable person immediately. Such an employee can most often also be aware of his true desires and needs and perceive his current job as a temporary solution, so the company will do him a good service by slightly nudging him in the right direction.

It is very important for the company to take a systematic approach to organizing the dismissal process. And here we are talking not only about compliance with all paper and legal formalities, but also about interaction with the dismissed employee. Dismissal must be planned in advance, be ready to give the person time to come to terms with the upcoming dismissal, and also find yourself new job that meets personal aspirations and interests. You should not try to get rid of a person at any cost as soon as possible. Many employers, in an attempt to save time and money, go to the trick of offering far from the best employee resign of their own free will, and in return promising brilliant recommendations. Of course, the company will get rid of the unwanted employee, but will such an approach do more harm than good. The author of this material witnessed with his own eyes a situation when a person with excellent recommendations from business partners was hired to the position of head of a group of trading companies, who in fact turned out to be completely incompetent. His actions in a short time contributed to the collapse of the team, which had worked together for more than ten years at the time of his arrival, and also lowered all the companies within the group below the payback point. A repeated, albeit belated, check of his work history through other channels showed that he was far from being a brilliant leader, and deliberately false recommendations were given to him. Needless to say, the inept leader was fired after all, and the partnership with referees also ended. After such stories, it is not at all surprising to hear that the recommendations do not say anything about the candidate, and people with even an excellent reputation turn out to be ineffective employees. When firing an employee, you need to be honest both in relation to him and in relation to his future employer.

An interesting case of the systematic organization of layoffs can be cited from the practice of one large Russian trading company. During the crises of 2008 and 2014, this company was forced to massively lay off its employees, but the company tried to do everything to make the layoffs as painless as possible for people. The firm was purposefully engaged in employing laid-off workers, and not only top management, but also ordinary employees. All layoffs were carried out in accordance with the plan.
First of all, a detailed analysis was carried out for each of the candidates for dismissal. Everything that was known about the person and his life circumstances, plans, it was predicted how the dismissal would affect him. At this stage, the company was trying to understand whether it would create unsolvable problems for the employee, because of which he would go to a conflict, a lawsuit, and so on. For example, an elderly person supports a sick relative. Find a job in short time it will be extremely difficult for him. It is highly likely that he will refuse to resign himself, and even a layoff under the law with the payment of the required compensation may not suit him. At this stage, those for whom dismissal would be painless, and those who need special attention, were identified. additional compensation and help, that is, the risk group.
At the second stage, the company prepared a separate action plan for each of the dismissed employees, taking into account additional measures for the risk group. Someone can be fired without any problems in general order, someone needs to be given more time to look for a job, pay a bonus, make a recommendation as an intelligent employee and send it to the company's partners, and so on. The company not only took all these actions, but did it so that the employee knew about them. In addition, the company also had a plan B in the event that a person falls into a state of conflict, prepares to file a lawsuit, incites others to a class action suit or strike, tries to steal commercial information, and so on. All possible options had to be worked out together with lawyers. Although such concern for employees looks almost fantastic, here we are still not talking about charity, but about stingy commercial calculation and risk planning.
At the third stage, employees were informed about the current situation. Here it was important to choose the right words and create a suitable environment.

It is dangerous to voice bad news to a large group of people at once, since in a team people feel more confident and especially dissatisfied, it is easy to incite everyone else to take some action. The ideal option is always to talk to each employee separately, especially those who may create additional difficulties for the company. It often happens that it is impossible to talk with everyone in private (the reason may be, for example, too tight deadlines and a very large team), then the conversation can start as a group one. Before the entire meeting, a message is announced that such and such events are taking place in the company, and then a separate conversation is held with each of the meeting participants, during which special attention is paid to problem employees.

A typical message, which is voiced to the entire team, can be built according to the following scenario. First, it is necessary to describe the difficult situation in which the company finds itself in connection with the crisis (management errors, a difficult situation in the market, and so on), while there is no need to hide the reasons especially, but you should not go into too much detail, especially if the reason was management mistakes. (wrong planning, wrong strategy, etc.). the main idea- you admit to a difficult situation, but immediately proceed to the fact that you have a plan of further actions for each employee and this plan is such and such. At this stage, it is important not to allow people to go too deep into looking for culprits and options for how the current situation could be avoided. It will be a very useful and powerful step for someone from the leadership to apologize to the meeting that the actions of the leadership either led to this situation or did not allow it to be avoided. This is especially accepted in the culture of Japan. For example, the head of the world's largest corporation can personally bow down at a collective meeting to those who should be fired, taking responsibility for the situation that has developed this way. But this does not in any way affect the fact that people should leave the company.

The employer's task is to mitigate the dismissal of the employee as much as possible.

In the first part of the conversation, you need to prepare people for the fact that they will soon hear bad news. You can use, for example, such phrases and phrases as “we all know that there is a global crisis now”, “our plans have not come true” and “at the last meeting a decision was made ... unfortunately, we cannot change this decision”. In the second part of the conversation, you need to give people a message that what happened is not their fault, but only reflects the business realities, and also urge everyone to think together what to do next. Here it is appropriate to let people know that the company is ready to provide them with emotional and moral support so that the dismissal would be as harmless as possible for them. The company can extend the time it takes to find a job, pay compensation, help draw up juristic documents to obtain a deferral for the payment of consumer and mortgage loans. In this part, it is necessary to competently present to people everything that you can do for them. For example, a visiting psychologist or a staff psychologist can talk with employees who need to relieve stress, the company's hr-service can help employees reconsider their career plans, write an effective resume and find a new job, a lawyer will advise on all issues that arise during the dismissal process, and tell how receive unemployment benefits, help to draw up documents for obtaining a loan deferral or for obtaining a loan for the development of a new business. The third part is an individual conversation with each of the employees. Based on an understanding of the person's situation, one can also understand how best to present him with information about the dismissal. It is necessary to choose such words so that the person understands that he is not thrown out into the street as unnecessary. It is important to convey to the employee that his dismissal is an inevitable thing caused by the current economic situation, which neither you nor he can influence. It is also important that the person understands that the company will try to do everything possible to get him back on his feet as soon as possible. A conversation with the person being dismissed about his plans for life will help you find the right words. One of the options, for example, may be such that a person has long wanted to do business and was actively thinking about it, but could not make up his mind to leave his job.

When firing a subordinate, you must remember that your main strategy is to remove him from the scenario of emotional reactions to the scenario of constructive use of the situation. In other words, instead of emotions, resentment, and feelings that he is bad, he was deceived and thrown, to bring a person to a rational level and force him to concentrate on what opportunities he now have, what can be obtained from the current situation. The perception of dismissal as a low assessment of work, failure to achieve goals, a sudden loss of money is fundamentally different from the perception of the same event as a new stage in life that will allow you to achieve and achieve something, as an opportunity to get more than will be lost. Therefore, all preparatory actions (analysis, assistance in the search, and so on) are to show that life is not over. This is ideally formulated by American HR specialists when they jokingly say: "Our company will no longer serve as a barrier to your growth and development."

Video: how to properly fire employees

Legal procedure for notice of dismissal

IN Labor Code there are no specific requirements for the format of the letter of resignation, which means that it can be drafted in any form. However, there are a number of points that are still recommended to be taken into account when drafting this document in order to avoid disagreements in interpretation and other difficulties. First of all, a letter of resignation must be written in his own hand and by hand by a citizen leaving the company. The application must indicate his name, surname, patronymic, as well as the position held in the company. This document is addressed to the person in the company who has the authority to make a decision on dismissal (for example, in the name of general director as a representative of the owner of the company). Particular attention should be paid to the correct indication of the date of dismissal. Experts recommend avoiding the preposition "s" in this case. In other words, instead of the phrase “I ask you to fire me from August 5, 2018”, it is recommended to write “I ask you to fire me on August 5, 2018”.

The application must clearly indicate the date of dismissal

When drawing up an application, it is necessary to take into account the fact that, according to labor legislation, dismissal is necessarily preceded by compulsory work, the duration of which may vary for various reasons. The most common is fourteen days' work. As a rule, it is this working off that accompanies dismissal of their own free will. However, some categories of citizens can use the right to reduce the period of working off to three days or avoid this obligation altogether. The working off includes weekends and holidays, days of vacation and sick leave.

The practice of the author of this material shows that a resigning employee should not be particularly worried about how to correctly write a letter of resignation. The implementation of the dismissal process is within the competence personnel service enterprises, and, in most cases, employees of this service are directly interested in completing all the necessary formalities in a timely manner and in accordance with the letter of the law. For this reason, personnel officers will enthusiastically and willingly offer their assistance to an employee leaving the company, provide him with the necessary template for drawing up a letter of resignation, as well as give other comments both on the preparation of the application and on the entire procedure as a whole.

Video: form and registration of a letter of resignation

Employee dismissal procedure

The general scheme for dismissing an employee is quite simple. In the event that an employee leaves of his own free will, he must notify the employer of his intention in advance (fourteen days in general). The next day after the employer is notified, the countdown of working days begins, for which the employee must transfer cases and, if possible, complete his projects. On the last working day, a dismissal order is issued, and the employee receives a full financial settlement, as well as work book and other documents.

If we are talking about dismissal at the initiative of the employer, the obligation to promptly notify the quitting employee about the upcoming event falls on the shoulders of the employer. In the future, the course of action is similar to that adopted upon dismissal at the request of the employee. The differences lie only in the timing of the employee's notification and in the execution of the relevant documents, for example, depending on the reason for dismissal, the order and the work book will contain links to various clauses of the relevant laws. The reason for the dismissal will also determine the procedure for financial settlements with the dismissed. In particular, if the company reduces staff, the laid-off employees must be notified at least two months before this event, and after the dismissal they must receive, among other things, two more monthly salaries as financial compensation.

Video: legal grounds and procedures for terminating an employment contract

Can the employer refuse to dismiss of his own free will and what to do if he does not accept the application

The norms of the current legislation prohibit the employer from keeping an employee in the workplace against his will, in other words, no employer has the right to refuse an employee who wants to leave the company in this desire. However, in practice, it is often possible to face a situation where the employer in one way or another tries to prevent dismissal of his own free will. A variety of means are used, from friendly persuasion and offers of an increase in salary and position to blackmail and threats to fire an employee under the article if he does not withdraw his application. For some, the opportunity to get better working conditions will be enough reason to stay, but you should never succumb to threats. Firstly, an employee cannot be dismissed under the article if, before that, he submitted an application of his own free will. Secondly, such behavior on the part of the employer may lead to litigation, from which, with a high degree of probability, the employee who is forced to remain at the old job will emerge as the winner.

To protect yourself from the employer's dishonesty and to prevent the employer from “accidentally” losing the timely submitted letter of resignation, it is recommended to register this application upon filing. This is very easy to do. It is enough to submit an application as an official incoming document through the office of the company or through the company secretary. In this case, it is necessary to take care in advance about the presence of a duplicate, on which the office worker must put down the date of receipt of the document, as well as its registration number and your signature. If for some reason the employee is not able to complete the application in person, the law allows sending it using postal service by registered mail with acknowledgment of delivery in person in the hands of the head or by telegram. In such a situation, the day of submission of the application will be the day of delivery of the correspondence to the addressee. After the application is received by the employer, the countdown of the prescribed number of days of work begins, after which the employee has every right to appear for financial settlement and a work book, and then say goodbye to the organization. If the employer continues to persist in his unwillingness to give the employee freedom of action and in the future the case still comes to lawsuits and proceedings, a duplicate of the application with the number and date of its registration in the office or a notice of delivery of a registered letter will become a confirmation of this fact in court. that the employer was promptly notified by the employee about the desire to leave the company.

During the period of final work in a company that does not want to let go of an employee, it is necessary to be as calm and careful as possible, not to succumb to provocations, observe work discipline and the necessary paper formalities, without creating reasons for nagging and remarks.

Video: does the director have the right to refuse dismissal

Firing from work often becomes a turning point in a person's life. Psychologists say the stress of being fired is comparable to the stress of divorce. In this situation, the main thing is to maintain a positive perception of reality and be able to find in the current situation new opportunities for their development and growth. An employer, like an employee, can also worry about the fairness of his decisions, but a good leader must be able to take responsibility for his actions, and layoffs are an integral part of doing business, so such a test should help him become better and stronger.

The dismissal procedure can occur on three grounds: the initiative of the administration or circumstances beyond the control of the parties to the agreement. Labor legislation regulates each type of payment from the place of employment. Compliance with the established rules is mandatory for both parties, otherwise disputes arise that require judicial consideration.

The question of how you can fire an employee without his desire and comply with the law requires special consideration. In each such situation, there is a conflict of the parties, therefore, maximum literacy from a legal point of view is required.

Reasons for dismissal by order of management

The termination of labor relations by the will of the administration in the overwhelming majority of cases is associated with violations of labor regulations or local regulations of the enterprise, inconsistency with the position held and other violations.

According to Article 81 of the Labor Code of the Russian Federation, the reasons for termination of the contract are legally established, which make it possible to calculate the employee without taking into account his interests.

The list is not closed, that is, it can be expanded in a specific situation. At the same time, the management will be required to document their position if the case comes to consideration in supervisory or judicial authorities.

The main list of reasons for dismissal by the will of the administration provides for the following situations:

closing or. When employed by an individual entrepreneur, the possibility of such dismissal is the official termination of the employer's activities;
the number of employees is occurring or decreasing. Both procedures must be carried out in compliance with the established rules and without procedural violations;
the worker did not pass re-certification, was unable to prove his professional suitability in the position held;
in the presence of official penalties and disciplinary action. The term of penalties is considered for a one-year period from the imposition of the first and subsequent penalties. As a rule, dismissal under the relevant article is applied as a last resort, after several official misconduct;
in case of a single violation of the order, which entailed serious consequences and brought significant material damage owner. Dismissal as a punishment is applied if, as a result of unlawful actions in work time the culprit suffered physical damage to health or resulted in the death of other employees. First of all, citizens who have grossly violated safety measures lose their jobs;
one-time absenteeism or absence from the position held for more than half of the shift without good reason. For valid reasons include a proven impossibility to notify about the emerging circumstances and the provision of certificates and evidence of the employee's innocence;
recorded drunkenness or other inappropriate behavior during working hours;
when proven in court or after an administrative investigation of the fact of theft, enterprise or other workers. Until the end of the procedural actions, the administration does not have the right to dismiss the employee under the relevant article;
disclosure of state secrets or internal classified information, including about professional activity other employees;
when opening a criminal case against persons carrying financial responsibility and who have entered into an appropriate personal agreement or have signed a collective agreement;
usage technical means or vehicles of the enterprise for personal use without the consent of the management;
loss of confidence when associated with material assets the employee is convicted of an unfair attitude to accounting or deliberate extraction of selfish goals;
discovery that false information about personal data, education or available professional certifications was provided during employment.

The list of guilty acts indicates the main characteristics conflict situation... The question of how you can dismiss an employee without his desire under the law, first of all, provides for the grounds presented. Unreasonable desire of the management to part with the employee without apparent reasons in the overwhelming majority of cases, it can be challenged in court and reinstated in the same place.

With regard to the management staff of the enterprise, there are additional reasons for the termination of the employment relationship without taking into account personal initiative.

These include the following reasons:

an unauthorized and purely personal decision that led to significant material damage;
change of owner, when the new owner forms the staffing table again;
one-time gross violation of official regulations and official duties.

For employees of federal and regional organizations, civil servants are also established additional conditions forced dismissal. This includes the submission of incorrect income tax returns in tax office, non-observance of the ethics of a civil servant in relation to applying citizens, the presence of foreign assets, exceeding their powers.

The law establishes a list of documents which are issued to the dismissed at his request:

a copy of the employment contract concluded during employment;
administrative order to terminate cooperation;
a certificate of the transfers made to the funds during the period of employment;
a certificate of the period of employment, indicating the first and last working day.

The reason itself, together with the corresponding article of the Labor Code of the Russian Federation, is indicated in the work book of the former employee.

Compliance with the rules by the employer

Legal justifications for refusing further cooperation with a citizen will be comprehensively observed when performing the following prerequisites:

availability of an indication of the situation in the Labor Code of the Russian Federation;
consistent execution of the entire procedural course of dismissal, the absence of violations of the regulations and the procedure for notifying the employee.

In case of redundancies, the employee must be notified two months before the alleged event, which gives him the opportunity to find a new place of employment. In case of conflicts, when there is an evasion of familiarization with the order, the document is sent to the place of residence by registered mail. It is possible to draw up an act on the employee's refusal to familiarize himself with the decree, the document is signed by witnesses and representatives of the administration.

If the termination of work occurs at the will of the administration, when the dismissal is, then an explanatory note is required. The culprit must provide an explanation of his misconduct within two shifts, after which the consideration of the case is transferred to the trade union or the labor dispute commission.

It is possible to calculate the guilty person for a disciplinary offense after the approval and a positive decision of these bodies. It should be noted that after a month has passed after the commission and fixation of the violation, it is not possible to dismiss and impute the blame.

In case of misdemeanors that lead to criminal or administrative prosecution, it is impossible to dismiss a citizen until the decision of the relevant authorities. But in this situation, associated with fraud, forgery or abuse of office, the employee is transferred to a place that does not allow him to repeat such actions.

Eligibility of dismissal by decision of the management

Disagreement with the decision the termination of an employment contract can be appealed to the labor dispute inspectorate, the supervisory authority, that is, the prosecutor's office, or by filing a statement of claim in court. Before going to court, it is recommended to enlist the decision of the commission, which indicates the violation made by the employer.

If the decision of the inspection did not affect the management, then you can contact the prosecutor's office or the court. The prosecutor's office initiates a check at the enterprise for the legality of the grounds for dismissing an employee without his desire. A positive court decision for the plaintiff will allow him to recover in the lost place and receive compensation for forced absenteeism, etc.

How to fire an employee without his consent

Anything can happen in life. Unfortunately, the loss of a person for unknown reasons is not such a rarity today. What should an employer do if an employee is missing? What to do in such a situation and in what order?

It is impossible to fire an employee who does not show up for work without warning until the reason for his absence is established. Maybe he was hospitalized, detained by law enforcement agencies, or there is another serious and valid reason.

Let us indicate which actions of the employer are appropriate in such a situation:

You need to look into the employee's personal card, find out the phone number and try to get through to him, contact relatives.
If the first step is unsuccessful, a letter (preferably a registered one with notification) is sent to the employee's address, in which the employer asks to explain the reason for the absence from the workplace. Then, if no response is received from the employee, on the basis of Article 193 of the Labor Code of the Russian Federation, an act is drawn up stating that it is impossible to obtain an explanation.
Next, a request is made to the police about the missing employee. Not only the person's relatives, but also his colleagues have the right to write an application to the nearest police department. In response to it, a notification coupon is given. Information from one department is transferred to another at the place of the last actual stay of the missing person, and search work begins.
If the search for an employee by the police does not yield results for more than a year, you can go to court as interested person in order for the missing person to be recognized as missing. The base is. The application is drawn up in accordance with article 276 of the Code of Civil Procedure of the Russian Federation, sample form. Attached to it is a certificate from the Department of Internal Affairs stating that the search activities were crowned with failure, as well as all relevant internal documents of your company, confirming the fact that the employee is absent from the workplace.
Only after that, on the basis of clause 6 of Article 83 of the Labor Code of the Russian Federation, it is possible to formalize the dismissal of an employee who has gone missing. The order to terminate labor relations is drawn up in the T-8 form, an entry corresponding to the circumstances is made in the work book. The book is given to relatives.

It is impossible to fire an employee who does not show up for work without warning until the reason for his absence is established.

Fixing the loss of an employee in the company

If your employee does not appear at the workplace during working hours without some kind of warning, you definitely need to record this fact. At the end of the working day, with several witnesses (preferably with the involvement of people from other departments or divisions for impartiality), a free-form act is drawn up, which indicates the data about the employee and the number of hours that he was absent.

In the time sheet, such days are marked with the letters "НН" or the numeric code "30". If the employee is later announced and the reason for his failure to appear is found out, a correction sheet with corrections is drawn up. In addition, the clarified circumstances of the employee's absence, if they were not, may be grounds for dismissal (Articles and Labor Code of the Russian Federation). In this case, the employer can dismiss his employee on his own initiative on the basis of Article 81 of the Labor Code of the Russian Federation.

If your employee does not show up at work without some kind of warning, you definitely need to record this fact.

For an employer, a missing employee is not only the resulting need to find him, but also an empty workplace and work left without "working hands". In this situation, the manager can consider several options for getting out of the situation:

Temporarily take on responsibilities. This is appropriate for small businesses, where there are only a few or dozens of people under subordination.
Impose duties on another employee by drawing up an additional agreement to the employment contract with him.
Take a new person into the team by concluding a fixed-term employment contract with him (), which is terminated as soon as the missing employee appears. In this case, you can agree in writing that, in the event of the dismissal of the missing employee, the new one will be accepted on an ongoing basis.

The clarified circumstances of the employee's absence, if they were not valid, may be grounds for dismissal.

Special cases of missing employee

The employee who wrote the application for can be dismissed without working out the prescribed 2 weeks, in accordance with Article 80 of the Labor Code of the Russian Federation, by agreement of the parties. If there was no such agreement, and the employee disappeared after the application was submitted, the manager can be sent a letter to his address demanding an explanation of the reasons for the absence at the time required for work, indicating that failure to appear on the day specified by law (14th from the moment of filing the application) will be regarded as a withdrawal of the letter of resignation. Then the employee can be fired for absenteeism on the basis of Article 81 of the Labor Code of the Russian Federation.

If the employee did not come to work after the vacation, the fact of his failure to appear must be recorded in the same way as described above, with the drawing up of an act in front of witnesses. You must first call the employee himself or his relatives and ask if there is good reason for his absence.

A missing employee cannot be fired until you have strong documentary evidence of him or a court order that he is missing. It is necessary to carry out search work both on our own, through calls and letters, and by the forces of law enforcement agencies. Do not forget to record the absence of the employee in his place - without the appropriate acts, dismissal can be regarded as illegal.