Labor Code, Part 1, Article 81. What useful information about dismissal at the initiative of the employer is contained in paragraph 5 of Article 81 of the Labor Code of the Russian Federation? Dismissal due to fake sick leave

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

Main provisions

Article 81 of the Labor Code specifies a list of options when the boss has the right to take the initiative and carry out the procedure for dismissing an employee.

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

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

There can be two types of grounds for removal from a position:

related to the employee’s actions;
not related to the employee's actions.

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

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

The employee’s responsibilities are specified in the employment contract and in the internal regulations of the enterprise. Among them the following can be noted:

absence from duty during working hours;
refusal to fulfill one's duties;
refusal of medical examinations and TB (safety) knowledge tests required for a specific place of work.

Dismissal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation occurs in the following cases:

for offenses committed more than once;
with previous disciplinary punishment.

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

Disciplinary action, as a rule, consists of a reprimand or reprimand. For certain categories of workers, this concept is expanded.

Paragraph 6 declares the possibility of dismissing a person in case of gross violations of official obligations, for example, the following:

being present at work while drunk or under the influence of drugs;
disclosure of corporate secrets;
violation of safety regulations.

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

the worker’s inadequacy for the position received;
closure of the company;
staff reductions.

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

Arbitrage practice

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

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

The violation that the employee committed was real and can be considered grounds for dismissal.
The employer complied with all deadlines regarding penalties.

In judicial practice, there are often claims regarding illegal dismissal for failure to fulfill official duties. The plaintiff has the right to challenge both the illegality of the decision to remove him and the illegality of all previous penalties. In the latter case, all disciplinary charges will be considered at a court hearing.

Important! If the verdict is positive, the employee may be reinstated. He also has the right to ask for compensation for moral damage caused by illegal punishments and loss of work.

How are penalties imposed?

Disciplinary sanctions received by the offender for the first violation are imposed as follows:

The penalty period is one month from the moment the offense was discovered.
The day the misconduct was discovered is the day on which the boss discovered the misconduct.
Sick leave and vacations are not included in the monthly recovery period. But days off are included.
Leave that interrupts a monthly period includes all types of leave (annual, for training, and others).

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

Clause 5, which concerns dismissal for failure to fulfill labor obligations without a good reason, requires the preliminary imposition of a fine or other disciplinary punishment.

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

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

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

1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
- a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts);
- b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
- c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
- d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
- e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments";
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) has become invalid;
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.

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

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

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ "On combating corruption."

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Article 81 of the Labor Code of the Russian Federation provides a list of grounds for termination of an employment contract at the initiative of the employer. In accordance with Article 81 of the Labor Code of the Russian Federation, such grounds may be the liquidation of an organization, reduction in staff numbers, employee inadequacy for the position held, absenteeism, disclosure of secrets protected by law, and a number of others. Based on Article 81 of the Labor Code of the Russian Federation, an employee cannot be dismissed at the initiative of the employer during periods of temporary disability and while on vacation.

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Question

A woman on maternity leave was called to work to write a letter of resignation due to the liquidation of the company. At the same time, the management opened a new company, to which the woman was refused admission (more precisely, they promised to accept her after the completion of maternity leave). How to protect yourself in this situation? Who is required to pay maternity benefits?

Lawyer's answer:

According to Art. 261 of the Labor Code of the Russian Federation allows termination of an employment contract with a pregnant employee at the initiative of the employer in the event of liquidation of the enterprise. At the same time, the reorganization of the company associated with the processes of merger, spin-off, acquisition, division is not recognized as a basis for the dismissal of pregnant employees.

During the liquidation of an organization, pregnant employees are granted the same rights as other employees. In particular, by virtue of clause 2 of Art. 180 of the Labor Code of the Russian Federation, the employer is obliged to warn the pregnant woman in writing about the upcoming liquidation no later than 2 months in advance. Dismissal in this case is carried out under clause 1, part 1 of Art. 81 Labor Code of the Russian Federation.

In accordance with Art. 140 of the Labor Code of the Russian Federation, a full payment must be made on the day of dismissal. In this case, payments in respect of a pregnant employee consist of:

severance pay;
compensation for unused vacations;
unpaid wages up to and including the date of dismissal.

In addition, a pregnant employee has the opportunity to appeal to the company management with a request to provide her with assistance due to her difficult financial situation, however, this payment is not mandatory.

After dismissal, a pregnant employee can only expect payments due to her as part of social assistance. As for maternity benefits, women dismissed due to the liquidation of the company are assigned and paid by the Social Security Administration.

Question

A mechanic from a transport company was urgently called to work on a day off because it was necessary to repair a car that had been involved in an accident. Was called to work in the evening, drank in the morning. During the renovation, the director came up and smelled alcohol. The mechanic was sent to the medical center for examination. The test showed 0.97 ppm alcohol. Despite the fact that the mechanic was not suspended from work, a report was drawn up and an explanatory note was required from the employee. Currently, the question of dismissal has been raised. How to correctly write an explanatory note to avoid dismissal?

Lawyer's answer:

Indeed, according to Art. 81 of the Labor Code of the Russian Federation, it is possible to terminate an employment contract at the initiative of employers if employees appear at work in a state of intoxication. In this case, the state of intoxication must be confirmed by evidence (medical reports, explanations of eyewitnesses, memos). An urgent call to work for an employee on his day off must be documented. If such documentation is not available, there is no need to talk about the employee’s work; in essence, calling him to work is illegal. These facts should be reflected in the explanatory note, adding that the call to work was unexpected, and the employment contract does not contain an obligation for the employee to refrain from drinking alcohol in order to always be prepared for a sudden call. It would also be useful to indicate that the employee went to work in person only to bring to the attention of management the impossibility of performing work functions on a day off without prior notice.

Question

The mother of a one-year-old child is on leave to care for him. The company where she worked as head of the secretariat is being liquidated. All company employees were notified about this 2 months in advance. After the 2-month period, the employees were issued work books with a notice of dismissal entered, however, payment of severance pay was refused. What to do, how to achieve justice?

Lawyer's answer:

According to paragraph 1 of Art. 81 of the Labor Code of the Russian Federation, it is possible to terminate employment contracts at the initiative of the employer if the company is to be liquidated. Moreover, in the event of liquidation of the organization, the dismissal of employees, including those on vacation, is allowed. In accordance with Art. 84-1 of the Labor Code of the Russian Federation, on the day of dismissal, the employer is obliged to issue the employee a work book and a full payment of wages. In order to restore violated rights, an employee may, within 3 months from the date of dismissal, apply to the labor inspectorate, prosecutor's office or court. In case of non-payment of wages, the head of the employing organization may be held liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and in case of debt for more than 3 months - under Art. 145.1 of the Criminal Code of the Russian Federation.

Question

The newspaper journalist was offered to work in the magazine under the same organizational and financial conditions (it is required to perform similar labor functions, issue the same volume of printed materials, the editorial office is located in the same place, the salary is the same). The employee refused this offer. In this regard, the employer, with the consent of the journalist, dismisses him on the grounds provided for in clause 7, part 1, article 77 of the Labor Code of the Russian Federation. Is the employer obliged to pay severance pay in this case?

Lawyer's answer:

By virtue of Article 178 of the Labor Code of the Russian Federation, the employer is obliged to pay the employee severance pay equal to 2 weeks of average earnings. Such benefits are subject to payment upon termination of the employment contract due to the employee’s refusal to continue working (due to changes in the terms of the employment contract previously determined by the parties (clause 7, part 1, article 77 of the Labor Code of the Russian Federation)).

Question

A mechanic, an employee of a hydroelectric power station with 20 years of experience, is going to be unlawfully fired for absenteeism. This employee was on regular leave from January 16, 2016 to February 5, 2016. On the last day of his vacation, the man felt unwell, visited a doctor and received a sick leave until February 16, 2016. On February 17, 2016, the employee went to work, however, he was not allowed to work due to the fact that a psychologist was not at work that day (in accordance with the regulations in force at hydroelectric power plants, access to work for service personnel is carried out, including by a psychologist) . The head of the HR department told the employee that the blame for absenteeism lay entirely with him, since it was necessary to arrange for a psychologist in advance. How legitimate are the claims of the head of the HR department and will dismissal for absenteeism be legal in this case?

Lawyer's answer:

According to paragraph 6 “a” of Art. 81 of the Labor Code of the Russian Federation, an employment contract is subject to termination at the initiative of the employer if the employee commits absenteeism, which involves absence from work without a valid reason for a full shift or for more than 4 hours in a row during the working day. In this situation, the employee showed up at the workplace on time, so there are grounds for dismissal under paragraphs. a) clause 6 of Art. 81 of the Labor Code of the Russian Federation is not available. According to Art. 76 of the Labor Code of the Russian Federation, employers have the right not to allow employees to work who are at work under the influence of alcohol, drugs or toxic substances, who have not undergone training and knowledge control, as well as a mandatory medical examination. In this case, the administration of the enterprise is obliged to attend to the medical examination (unless otherwise provided by the employment contract or local regulations). Illegal removal from work on the basis of refusal to undergo an examination is grounds for filing a complaint with the labor inspectorate.

Question

An accountant has been working in an organization for 4 years on the basis of a fixed-term employment contract, which was drawn up in order to replace the main employee. He has a higher specialized education and has had no complaints over the entire period of work. Some time ago, a vacancy arose in the accounting department of the enterprise, as a result of which the accountant wrote an application for transfer to it. However, the head of the organization did not consent to this transfer and did not provide any explanations. There is a suspicion that this refusal is related to the accountant’s pregnancy. Is it legal to refuse a transfer in this situation?

Lawyer's answer:

According to Art. 261 of the Labor Code of the Russian Federation, upon termination of a fixed-term employment contract during the pregnancy of an employee, the employer must, on the basis of her written application and medical certificate, extend the period of validity of the contract until the end of the pregnancy. It should be noted that the dismissal of an employee due to the expiration of the contract during pregnancy is permissible if the contract was drawn up for the period of replacement of the absent employee and there is no possibility of transfer to a vacant position. At the same time, the employer is obliged to offer such an employee any vacancies in the given area that correspond to the woman’s qualifications, the work for which the woman can perform taking into account her state of health.

If the employer terminates the employment contract in violation of Art. 261 of the Labor Code of the Russian Federation, you must file a complaint with the labor inspectorate, prosecutor’s office or court.

Question

Since November 15, the electrician has been on sick leave due to a broken arm. On December 1, he was notified by telephone by the head of the personnel department that the position he occupied was subject to reduction. Therefore, after the sick leave is closed, the electrician needs to come and fill out all the necessary redundancy documents with the HR department. The specialist is not satisfied with this state of affairs. Is there a way out? Is there a violation of labor laws in this case?

Lawyer's answer:

Based on clause 2, part 1, art. 81 of the Labor Code of the Russian Federation, termination of an employment contract may occur in the event of a reduction in the number of employees. At the same time, according to Part 2 of Art. 180 of the Labor Code of the Russian Federation about the impending dismissal, the employer is obliged to personally warn employees against signature no later than 2 months before the actual dismissal. The law does not provide for an extension of this period for the duration of the specialist’s incapacity for work. Moreover, according to Part 6 of Art. 81 of the Labor Code of the Russian Federation during a period of incapacity for work, dismissal of a specialist is unacceptable. In this case, the 2-month period will begin from the moment the specialist leaves sick leave and receives a signature notice of layoff. In this case, the specialist has the right to: agree to terminate the contract at an earlier date, but with payment of compensation; demand a transfer to another job from among the vacancies available in the company; go to court with claims for reinstatement and payment of an amount corresponding to average earnings if the dismissal was carried out with violations.

Question

August 20, 2014 I got a job as an accountant. A month later I found out that I was pregnant. I went on sick leave for health reasons. The general director called and said that my position was being reduced and I needed to write a letter of resignation of my own free will. He offered the position of a cleaner and the corresponding payment. Do they have the right to demote me and cut my salary to the minimum? And if they do so, where should they turn?

Lawyer's answer:

The dismissal of a pregnant employee at the initiative of the employer is not allowed, with the exception of cases of liquidation of the organization or termination of the activities of the individual entrepreneur with whom she is employed (part one of Article 261 of the Labor Code of the Russian Federation). Since when the number (staff) of employees is reduced, the activities of the organization or individual entrepreneur do not cease, a pregnant employee cannot be dismissed on this basis (see letter of the Federal Service for Labor and Employment dated April 2, 2010 N 902-6-1). The employer is obliged to retain her position. The illegal dismissal of a pregnant employee may entail the employer’s obligation to reinstate her at work and pay her average earnings for the entire period of forced absence or the difference in earnings when she performed lower-paid work (parts one and two of Article 394 of the Labor Code of the Russian Federation). Also, the employee may demand compensation for moral damage caused by illegal dismissal (part nine of Article 394 of the Labor Code of the Russian Federation). In addition, the employer may be held administratively liable under Art. 5.27 Code of Administrative Offenses of the Russian Federation.
If you are fired, go to court.

Question

An employee of the company, who is on maternity leave, made a call to the HR department. When trying to coordinate the time of leaving her vacation, she received information that her position had been reduced and she would have to report for dismissal in the very near future. Are the employer's actions legal?

Lawyer's answer:

In accordance with Art. 256 of the Labor Code of the Russian Federation, for the entire period of leave related to child care, the employee must retain his job. In addition, according to Art. 261 of the Labor Code of the Russian Federation, it is unacceptable to terminate employment contracts at the initiative of employers with mothers with children under the age of 3 years. Thus, in this case, the employer’s actions are not based on the law. An employee can safely return from vacation by notifying the employer in writing of the date of termination. If the employer violates the above-mentioned articles of the Labor Code of the Russian Federation, the woman must file a complaint with the labor inspectorate, the prosecutor's office or the court.

Question

The manager rudely humiliated the employee and forced her to write a letter of resignation of her own free will. In reality, the employee does not want to quit. Can an employee be fired if she is not on maternity leave and the child is not yet 3 years old?

Lawyer's answer:

Termination of employment contracts with women with children under 3 years of age, in accordance with Part 4 of Art. 261 of the Labor Code of the Russian Federation, at the initiative of the employer is unacceptable. An exception should be considered dismissal in accordance with paragraphs 1, 5 - 8, 10, 11 of Art. 81 of the Labor Code of the Russian Federation or clause 2 of Art. 336 Labor Code of the Russian Federation. If there is evidence that the employee was forced to write a letter of resignation of her own free will, an effective form of defense would be to contact the prosecutor’s office or the State Tax Inspectorate.

Full text of Art. 81 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 81 of the Labor Code of the Russian Federation.

An employment contract can be terminated by the employer in the following cases:
1) liquidation of an organization or termination of activities by an individual entrepreneur;
2) reduction in the number or staff of employees of an organization or individual entrepreneur;
3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;
4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;
6) a single gross violation by an employee of labor duties:
a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) ) ;
b) the employee appears at work (at his workplace or on the territory of the organization - the employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;
c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;
7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer;
8) an employee performing educational functions has committed an immoral offense that is incompatible with the continuation of this work;
9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) the employee submits false documents to the employer when concluding an employment contract;
12) the paragraph has lost force since October 6, 2006 - Federal Law of June 30, 2006 N 90-FZ;
13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which the employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.
In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

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

If in Art. 80 of the Labor Code of the Russian Federation discussed the termination of an employment contract at the initiative of the employee, the commented article regulates the termination of employment relations at the initiative of the employer. It is established that an employment contract can be terminated in the event of:
- liquidation of an organization or termination of activities by an individual entrepreneur. According to paragraph 28 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by courts of the Labor Code of the Russian Federation, the grounds for dismissal of employees can be:
1) a decision to liquidate a legal entity, that is, a decision to terminate its activities without transferring rights and obligations by way of succession to other legal entities (Article 61 of the Civil Code of the Russian Federation). In this case, it is provided for payment of severance pay to employees in the amount of average monthly earnings, as well as preservation of average monthly earnings for the period of employment, but not more than two months from the date of dismissal (including severance pay);
2) termination of the activities of an individual entrepreneur on the basis of a decision made by him or as a result of his being declared insolvent (bankrupt) by a court decision in accordance with clause 1 of Art. 25 of the Civil Code of the Russian Federation, and in addition - in connection with the expiration and refusal to renew a license for certain types of activities.

This is an unconditional basis for terminating employment contracts with all categories of workers, including pregnant women (Article 261 of the Labor Code of the Russian Federation).

Employees are warned by the employer personally and against signature of upcoming dismissal due to the liquidation of the organization at least two months before dismissal (Article 180 of the Labor Code of the Russian Federation).

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of the units must also be carried out according to the rules provided for cases of liquidation of the organization;
- reduction in the number or staff of employees of an organization, individual entrepreneur (see Articles 178-180, 292, 296, 318 of the Labor Code of the Russian Federation and comments to them).

As emphasized in paragraph 29 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, it must be borne in mind that termination of an employment contract on this basis is possible only on the condition that the employee did not have a preemptive right to remain at work and was warned personally and against signature at least two months in advance about the upcoming dismissal.

When dismissal due to the liquidation of a state body or reduction of civil service positions, civil servants should be guided by Art. Art. 31, 33 and 38 Federal Law "On the State Civil Service of the Russian Federation" (clause 30 of the resolution of the Plenum of the RF Armed Forces on the application by courts of the Labor Code of the Russian Federation);
- inconsistency of the employee with the position held or the work performed due to insufficient qualifications confirmed by certification results. In particular, the obligation to undergo certification is established by Art. 49 Federal Law "On Education in the Russian Federation".

In this case, certification must be carried out in the manner established by labor legislation and other regulatory legal acts containing labor law norms, LNA, adopted taking into account the opinion of the representative body of workers. For example, Decree of the President of the Russian Federation dated February 1, 2005 N 110 “On the certification of state civil servants of the Russian Federation” approved the Regulations on the certification of state civil servants of the Russian Federation; Decree of the Government of the Russian Federation of December 22, 2011 N 1091 “On some issues of certification of emergency rescue services, emergency rescue teams, rescuers and citizens acquiring the status of a rescuer” approved the Regulations on the certification of emergency rescue services, emergency rescue teams, rescuers and citizens acquiring the status of a rescuer, etc.

An employer does not have the right to terminate an employment contract with an employee on this basis if no certification was carried out in relation to the employee or if the certification commission came to the conclusion that the employee is suitable for the position held or the work performed. In the event of a dispute, the conclusions of the certification commission about the employee’s business qualities are subject to evaluation by the court in conjunction with other evidence in the case.

In this case, the employer is obliged to provide evidence indicating that the employee refused to be transferred to another job, or the employer did not have the opportunity (for example, due to the lack of vacant positions or jobs) to transfer the employee with his consent to another job available to this employer ( clause 31 of the resolution of the Plenum of the RF Armed Forces on the application by courts of the Labor Code of the Russian Federation);
- change of owner of the organization’s property - in relation to the head of the organization, his deputies and the chief accountant (see Article 75 and the commentary thereto). Dismissal on this basis cannot be carried out in relation to other persons.

Moreover, in the event of termination of the employment contract with the head of the organization, his deputies and the chief accountant, the new owner is obliged to pay compensation to these employees in the amount of no less than three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation);
- repeated (twice or more) failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction.

An employer, terminating an employment contract with an employee on this basis, must be prepared to prove, firstly, that every violation committed by the employee, which was the reason for dismissal, actually took place and could be the basis for termination of the employment contract, and secondly, - that they met the deadlines for applying disciplinary action ().

Failure by an employee to fulfill his job duties without good reason may be, in particular, a violation of his obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc. (paragraphs 34, 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by courts of the Labor Code of the Russian Federation).

It should be noted that the grounds for dismissal provided for in paragraphs 5-11 of part 1 of the commented article, in contrast to those indicated above, are somewhat defamatory, and legal disputes often arise regarding their application;
- a single gross violation of labor duties by an employee, including:
1) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day ( shifts).

According to paragraph 39 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by the courts of the Labor Code of the Russian Federation, dismissal on this basis, in particular, can be made for absence from work without good reason, that is, in absence from work during the entire working day (shift), regardless of the duration of the working day day (shift), for an employee being outside the workplace without good reason for more than four hours in a row during the working day.

In addition, absenteeism is considered to be the abandonment of work without a valid reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week warning period established by Art. 80 of the Labor Code of the Russian Federation, abandonment of work without a good reason by a person with whom a fixed-term employment contract has been concluded, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract.

Finally, absenteeism is the unauthorized use of days off, as well as unauthorized going on vacation (main, additional).

The fact that an employee is absent from the workplace is recorded by the employer by drawing up a commission report.

Valid reasons for an employee’s absence from work in practice are considered to be his illness, confirmed by a certificate of incapacity for work, as well as the illness of family members, the inability to arrive at the place of work on time due to force majeure (for example, an accident) and similar cases that are assessed by the employer, and if a dispute arises - the court.

Thus, the ruling of the St. Petersburg City Court dated November 21, 2012 N 33-15901 indicates a case where an employee did not go on a business trip due to poor health, about which he did not notify the employer in a timely manner, and also did not explain the reasons for refusing to go on a business trip to his colleagues, but received a certificate of incapacity for work only the next day. The court found the dismissal of an employee for absenteeism legal and justified.

It should be kept in mind that . Accordingly, the employer must carefully follow the procedure for applying disciplinary sanctions established by Art. 193 Labor Code of the Russian Federation.

If disputes arise, the court must take into account, in particular, whether written explanations were requested from the employee regarding absenteeism, whether he was familiar with the order to apply a disciplinary sanction (see the ruling of the RF Armed Forces dated March 16, 2012 No. 4-B12-4);
2) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication.

According to paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by courts of the Labor Code of the Russian Federation, it does not matter whether the employee was suspended from work in connection with the specified condition.

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

The state of alcohol, drug or other toxic intoxication can be confirmed by both a medical report and other types of evidence (including a commission report that records data on the smell of alcohol in the employee’s exhaled air, unsteady gait, demonstrative reactions, etc.) .

In any case, to terminate an employment contract with an employee on this basis, it is necessary to provide documentary evidence of the employee’s appearance at work during working hours in a state of alcohol, drug or toxic intoxication (see the ruling of the Moscow Regional Court dated September 23, 2010 in case No. 33-18460);
3) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee.

Confidential information to which some employees of the organization are allowed in accordance with the established procedure includes: state secrets, which is information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational investigative activities, the dissemination of which could harm the security of the Russian Federation Federation (Article 2 of the Law of the Russian Federation “On State Secrets”); trade secret - a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services or obtain other commercial benefits (Part 1 of Article 3 of the Federal Law "On Trade Secrets") ; bank secrecy about transactions, accounts and deposits of their clients and correspondents, which is guaranteed by credit organizations, the Bank of Russia, organizations performing the functions of compulsory deposit insurance (Article 26 of the Federal Law “On Banks and Banking Activities”); official secret - official information, access to which is limited by government bodies (clause 3 of the List of confidential information, approved by Decree of the President of the Russian Federation of March 6, 1997 N 188 “On approval of the List of confidential information”); professional secret - information received by citizens (individuals) in the performance of their professional duties or organizations in the performance of certain types of activities, subject to protection in cases where these persons are obligated by federal laws to maintain the confidentiality of such information (Part 5 of Article 9 Federal Law "On Information, Information Technologies and Information Protection"). Based on clause 4 of the List of Confidential Information, approved by Decree of the President of the Russian Federation of March 6, 1997 N 188, medical, notarial, attorney-client secrecy, etc. are classified as professional.

Proving the legality of dismissal on this basis, in particular related to the disclosure of trade secrets, is particularly difficult. So, for example, from the ruling of the Moscow City Court dated December 12, 2011 in case No. 4g/8-10961/2011, it follows that the mere fact, discovered by the employer, that an employee of the company copied information constituting a trade secret onto his own flash card without evidence subsequent transfer of this information to third parties cannot be regarded as disclosure of this information, as a result of which the plaintiff, dismissed under clause "c" of Part 6 of Art. 81 of the Labor Code of the Russian Federation, was reinstated;
4) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses.

Any property that does not belong to this employee should be regarded as someone else's property, in particular, property belonging to the employer, other employees, as well as persons who are not employees of this organization. The established monthly period for applying such a disciplinary measure is calculated from the date of entry into force of a court verdict or resolution of a judge, body, official authorized to consider cases of administrative offenses (clause 44 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application of the Labor Code of the Russian Federation by courts).

It is important to note that before the corresponding sentence or decision to dismiss an employee on this basis comes into force, there can be no talk, no matter how obvious to the employer the fact that such an employee has committed theft (embezzlement, destruction or damage) of property;
5) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

The possibility of dismissing an employee at the initiative of the employer is associated in this case with the special attention of the legislator to compliance with labor protection requirements.

For example, the court found that on the territory of the OJSC pulp warehouse, as a result of B.’s use of a pyrotechnic product associated with a violation of the Instructions on Fire Safety Measures and Internal Labor Regulations, a cellulose fire occurred in the conveyor pit, during the extinguishing of which K. received injury - open fracture of both bones of the right leg. Under such circumstances, the court concluded that as a result of B.’s violation of fire safety rules, a real danger of grave consequences as a result of a fire in the pulp warehouse was created. Therefore, his dismissal under clause "e" of Part 6 of Art. 81 of the Labor Code of the Russian Federation was recognized as legal (see the ruling of the Kaluga Regional Court of August 4, 2011 in case No. 33-2044/2011);
- commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer.

If it is established in the manner prescribed by law that theft, bribery and other mercenary offenses have been committed, these employees may be dismissed on the grounds of loss of trust in them and in the case when these actions are not related to their work (clause 45 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application by courts Labor Code of the Russian Federation);
- failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party.

According to the definition given in Part 1 of Art. 19 of the Federal Law "On the State Civil Service of the Russian Federation", a conflict of interest is a situation in which the personal interest of a civil servant affects or may affect the objective performance of his official duties, and in which a contradiction arises or may arise between the personal interest of a civil servant and the legitimate interests of citizens , organizations, society, subject of the Russian Federation or the Russian Federation, capable of causing harm to these legitimate interests of citizens, organizations, society, subject of the Russian Federation or the Russian Federation.

Also, the dismissal of an employee under clause 7.1, part 1 of Art. 81 of the Labor Code of the Russian Federation is possible in the case of:
1) failure to provide or provision of incomplete or unreliable information about their income, expenses, property and property-related obligations;
2) failure to provide or provision of knowingly incomplete or unreliable information about income, expenses, property and property obligations of their spouse and minor children;
3) opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation;
4) possession and (or) use of foreign financial instruments by the employee, his spouse and minor children.

Of course, the need to provide such information should be initially provided for by the Labor Code of the Russian Federation, other federal laws, and regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation. Thus, certain requirements are contained in the Federal Law of December 3, 2012 N 230-FZ “On control over the compliance of the expenses of persons holding public positions and other persons with their income.”

The actions or inactions of the employee in the above cases themselves do not constitute grounds for his mandatory dismissal. They must provide grounds for loss of confidence in the employee on the part of the employer (which is assessed by him independently);
- the commission by an employee performing educational functions of an immoral offense that is incompatible with the continuation of this work.

On this basis, it is permissible to dismiss only those workers who are engaged in educational activities, for example, teachers, teachers of educational organizations, industrial training masters, regardless of where the immoral offense was committed: at the place of work or at home (clause 46 of the resolution of the Plenum of the Armed Forces of the Russian Federation on application by courts of the Labor Code of the Russian Federation).

Let us give an example from judicial practice. A person involved in the direct education of youth, while in a restaurant, while intoxicated, committed hooligan acts, accompanied by offensive harassment of citizens and damage to other people's property, expressing clear disrespect for society, while damaging the property located in this restaurant. The court recognized the dismissal under clause 8, part 1 of Art. 81 of the Labor Code of the Russian Federation is lawful (see the decision of April 4, 2011 of the Naryan-Mar City Court of the Nenets Autonomous Okrug).

In this case (as well as when an employee commits guilty actions that give rise to loss of trust), if the offense is committed by the employee at the place of work and in connection with the performance of his job duties, then he can be dismissed only subject to compliance with Art. 193 of the Labor Code of the Russian Federation on the procedure for applying disciplinary sanctions.

If an immoral act or guilty actions giving grounds for loss of trust are committed by an employee outside the place of work or at the place of work, but not in connection with the performance of his job duties, then the employment contract with him can also be terminated under clause 7 or clause. 8 part 1 art. 81 of the Labor Code of the Russian Federation, but no later than one year from the date of discovery of the misconduct by the employer (clause 47 of the resolution of the Plenum of the Armed Forces of the Russian Federation on the application of the Labor Code of the Russian Federation by courts);
- making an unjustified decision by the head of the organization (branch, representative office), his deputies or the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the organization’s property. In relation to other persons, dismissal on this basis is unacceptable.

As indicated in paragraph 48 of the resolution of the Plenum of the RF Armed Forces on the application by courts of the Labor Code of the Russian Federation, in this case it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if another decision was made. If the employer does not provide evidence confirming the occurrence of adverse consequences, such dismissal cannot be recognized as legal;
- a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties. Heads of other structural divisions of the organization and their deputies, as well as the chief accountant of the organization cannot be dismissed on this basis
The question of whether the violation committed was gross is decided taking into account the specific circumstances of each case. In this case, the responsibility 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, in particular, be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm to the health of workers or property damage to the organization (clause 49 of the resolution of the Plenum of the Supreme Court of the Russian Federation on the application by courts of the Labor Code of the Russian Federation);
- the employee submits false documents to the employer when concluding an employment contract. In this case, one should take into account the established Art. 65 of the Labor Code of the Russian Federation, a list of documents that are presented by the employee when concluding an employment contract (the employer has no right to require other documents). In particular, an employee may present a fake document on education, qualifications or special knowledge when applying for a job that requires special knowledge or special training;
- the presence of an appropriate basis in the employment contract with the head of the organization, members of the collegial executive body of the organization (see Article 278 of the Labor Code of the Russian Federation and the commentary thereto);
- in other cases established by the Labor Code of the Russian Federation and other federal laws.

For example, Art. 336 of the Labor Code of the Russian Federation establishes that additional grounds for termination of an employment contract with a teaching employee are repeated gross violation of the charter of an organization carrying out educational activities within one year, the use, including one-time use, of educational methods associated with physical and (or) mental violence against a person student, pupil, etc.

Dismissal of employees at the initiative of the employer is carried out with reference to the relevant paragraph of Part 1 of Art. 81 Labor Code of the Russian Federation.

In all cases, the dismissal of an employee at the initiative of the employer during the period of temporary disability and while on vacation is not allowed. An exception is dismissal due to the liquidation of an organization and termination of activities by an individual entrepreneur.

Another comment to Art. 81 Labor Code of the Russian Federation

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

As grounds for dismissing an employee at the initiative of the employer, the legislator formulates three groups of reasons: 1) guilty actions of the employee; 2) reasons related to the personality of the employee, but not the result of his guilty actions; 3) circumstances independent of the employee’s personality.

When formulating the grounds for termination of an employment contract at the initiative of the employer, the legislator takes into account both the personality of the employee and the characteristics of work determined by his labor function. In this regard, there are general and special grounds for termination of an employment contract at the initiative of the employer. The former can be applied upon the dismissal of any employee, the latter - only for employees of certain categories (for example, heads of organizations, persons whose work activity is related to the servicing of monetary or commodity values). The general grounds for termination of an employment contract at the initiative of the employer are formulated in the commented article, additional (special) grounds - partly in the commented article, partly in the articles of the Labor Code regulating the legal status of certain categories of employees and employers, as well as in other federal laws.

As a general rule, the presence of grounds for dismissal gives the employer the right, but does not oblige him, to terminate the employment contract. Therefore, when circumstances arise that give rise to this right of the employer, the latter may either not change the content of the employment contract with the employee at all, limiting himself to applying measures of an organizational and legal nature to him, or, if this circumstance excludes the possibility of the employee retaining his position or work stipulated by the employment contract , - transfer the employee with his consent to another job. In some cases, the employer has the right to dismiss an employee if transfer to another job is impossible or the employee refuses the transfer.

2. Among the grounds for dismissal of an employee at the initiative of the employer, paragraph 1 of the commented article names the liquidation of an organization or termination of activities by an individual entrepreneur.

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

As follows from paragraph 2 of Art. 61 of the Civil Code, a legal entity may be liquidated by decision of both the entity itself (its founders (participants) or the competent authority) and the court, including if it is declared bankrupt. The liquidation of a legal entity is considered completed, and the legal entity is considered to have ceased to exist after making an entry to this effect in the Unified State Register of Legal Entities (clause 8 of Article 63 of the Civil Code).

As for the termination of the activities of an employer - an individual, in this case we are talking about the termination of the activities of this person as an individual entrepreneur - in the sense in which this concept is interpreted by the Labor Code (see Article 20 of the Labor Code and the commentary thereto). The death of an employer - an individual is an independent basis for termination of an employment contract (clause 6 of Article 83 of the Labor Code).

Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code are special subjects of law acting to achieve goals determined by law, including the production of profit, and, accordingly, are obliged in one form or another to carry out state registration (licensing) of their activities. For example, the entrepreneurial activity of a citizen as an individual entrepreneur or head of a farm is subject to state registration (Article 23 of the Civil Code); a special procedure is provided for by law for acquiring the status of a lawyer (see Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation”); Notaries operate on the basis of a license issued in accordance with the established procedure (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries dated February 11, 1998 N 4462-1). Accordingly, the termination (or suspension) of the activities of this type of employer can serve as an independent basis for terminating an employment contract with employees in accordance with paragraph 1 of the commented article.

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under paragraph 1 of the commented article, in particular, when the activities of the employer - an individual are terminated on the basis of his own decision, due to his being declared insolvent (bankrupt ) by court decision (clause 1 of article 25 of the Civil Code), due to the expiration of the state registration certificate, refusal to renew a license for certain types of activities (paragraph 3 of clause 28 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”).

3. A reduction in the number or staff of employees of an organization or individual entrepreneur as a basis for terminating an employment contract is provided for in paragraph 2 of the commented article.

The number of employees is determined according to the technological processes used by the employer and the maintenance needs of its activities. The staff consists of a combination of management and administrative positions at various levels, as well as specialists. The staff is determined, as a rule, by the manager by issuing a staffing table.

When changing the owner of an organization's property, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership (Part 4 of Article 75 of the Labor Code).

When dismissal due to staff reduction, it is necessary to take into account the preferential right of certain categories of employees to remain at work (see Article 179 of the Labor Code and commentary thereto). At the same time, since, by virtue of Part 4 of the commented article, in the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, the termination of employment contracts with employees of these structural units is carried out according to the rules provided for cases of liquidation of an organization, the rule Art. 179 of the Labor Code does not apply.

4. By virtue of paragraph 3 of the commented article, the inconsistency of an employee with the position held or the work performed may be a consequence of insufficient qualifications. The employee's insufficient qualification level must be confirmed by certification results.

The procedure for conducting certification requires compliance with the following rules: a) the presence of a regulatory framework (the corresponding regulatory legal act of the state or local government and (or) a local regulatory act on certification); b) implementation of the certification procedure by a commission created in the manner established by the relevant act; c) the universal nature of certification (not individual, but all (with exceptions determined by regulation) employees of a certain category are subject to certification); d) frequency of certification (employees are subject to certification regularly, as a rule, after a certain period after the previous certification established in the regulatory order).

The conclusion of the certification commission that the employee’s level of actual qualifications does not correspond to the position held or the work performed gives the employer the right to terminate the employment contract with this employee.

Judicial practice is based on the inadmissibility of terminating an employment contract on the grounds of insufficient qualifications with employees who do not have the necessary production experience due to short work experience, as well as on the grounds of lack of special education, if by force of law it is not a mandatory condition for concluding an employment contract.

5. The basis for dismissal at the initiative of the employer is the employee’s repeated failure to fulfill his job duties without good reason (clause 5 of the commented article).

A violation of labor discipline is the failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include:

a) the absence of an employee from work or the workplace without good reason. It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate the specific workplace of this employee, then in the event of a dispute arising on the issue of where the employee is obliged to be in the performance of his work duties, it should be assumed that, by virtue of Part 6 of Art. 209 of the Labor Code, a workplace is a place where an employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer;

b) refusal of an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (see Article 162 of the Labor Code and the commentary thereto), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the existing in the organization, internal labor regulations (see Article 56 of the Labor Code and commentary thereto). At the same time, refusal to continue work in connection with a change in the terms of the employment contract due to changes in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for termination of the employment contract under clause 7 of Art. 77 of the Labor Code in compliance with the procedure provided for in Art. 74 TK;

c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work (p 35 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

When resolving disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full financial responsibility for the shortage of property entrusted to employees (Article 244 of the Labor Code), in the case where it was not concluded simultaneously with the employment contract, p. 36 of the said Resolution of the Plenum of the Armed Forces of the Russian Federation proposes to proceed from the following.

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

If the need to conclude an agreement on full financial liability arose after concluding an employment contract with the employee and is due to the fact that, due to changes in current legislation, the position he holds or the work he performs is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility, but the employee refuses to enter into such an agreement, the employer, by virtue of Part 3 of Art. 74 of the Labor Code is obliged to offer him another job, and in the absence of it or the employee refuses the offered job, the employment contract is terminated with him in accordance with clause 7 of Art. 77 TK.

An employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

Dismissal for repeated failure by an employee to fulfill work duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated failure by the employee to fulfill work duties without good reason was not removed or extinguished (paragraph 1, paragraph 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 . N 2). The list of disciplinary sanctions is established by law (see Article 192 of the Labor Code and commentary thereto).

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

If an employee has repeatedly violated labor discipline, but no disciplinary sanction has been applied to him, then he cannot be dismissed under clause 5 of the commented article.

Violation of labor discipline is recognized as repeated if, despite the penalty, the employee’s unlawful misconduct continues. In this case, it is permissible to apply a new penalty to him, including dismissal under clause 5 of the commented article (paragraph 2 of clause 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

An employee’s submission of a resignation letter of his own free will after committing an act that gives the employer grounds for applying disciplinary action against him, including dismissal, cannot be considered forced (see Article 80 of the Labor Code and the commentary thereto).

Actions of an employee that are not related to his work duties should not be considered a disciplinary offense. You cannot fire an employee under clause 5 of the article under comment, for example, for improper behavior at home. Termination of an employment contract on this basis is specified in the norms of the Labor Code regulating the legal status of teaching staff (see Article 336 of the Labor Code and the commentary thereto).

6. A single gross violation of labor duties by an employee (clause 6 of the commented article) is grounds sufficient for terminating an employment contract with an employee, regardless of whether he or she previously had disciplinary sanctions.

Gross violations are:

1) truancy (subparagraph “a”, paragraph 6 of the commented article). Absenteeism means absence from the workplace without a valid reason during the entire working day (shift). Absenteeism is the absence of an employee from the workplace without good reason for more than four hours in a row during a working day (shift). In this case, the workplace means not only the workplace assigned to the employee, but also the one where the employee was obliged to be by virtue of the instructions of the employee’s relevant manager (for the concept of a workplace, see Article 209 of the Labor Code and the commentary thereto).

As follows from paragraph 39 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2, dismissal on the specified basis, in particular, can be made:

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

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

c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer about termination of the contract, as well as before the expiration of the two-week notice period (see Article 80 of the Labor Code and the commentary thereto);

d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract (see Articles 79, 80, 280, 292, 296 of the Labor Code and commentary to them);

e) for unauthorized use of days off, as well as for unauthorized departure on vacation (main, additional). The use of rest days by an employee is not considered absenteeism if the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor in accordance with Part 4 of Art. 186 Labor Code of the day of rest immediately after each day of donating blood and its components).

When the court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer (see Articles 72.1, 72.2 of the Labor Code and commentary thereto) ). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement at his previous job (clause 40 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absence, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account: average in such cases, the wages of the reinstated employee can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced (clause 41 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2) ;

2) appearing at work in a state of alcohol, drug or other toxic intoxication (subparagraph “b”, paragraph 6 of the commented article).

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

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

An employee's drunken state or drug or other toxic intoxication can be confirmed by both a medical report and other types of evidence;

3) disclosure of secrets protected by law (state, commercial, official and other, including personal data of another employee or employees), which became known to the employee in connection with the performance of his job duties (subclause “c” of paragraph 6 of the commented article). On the concept, procedure and conditions for an employee’s access to state, commercial and official secrets, see Art. 57 TC and commentary to it.

One of the main and indispensable conditions for protecting the right to official and commercial secrets is the adoption by the owner of the information of specific measures to protect its confidentiality. These measures are divided into organizational (for example, personnel selection), technical (use of technical means of information security) and legal.

Legal measures include: development and adoption of special regulations on official and commercial secrets; approval of the list of information constituting official and commercial secrets; inclusion in employee employment contracts of conditions on non-disclosure of official and commercial secrets, etc.

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

If the employee challenges the dismissal under sub. “c” of paragraph 6 of the commented article, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secret protected by law or to the personal data of another employee, this information became known to the employee in connection with the performance of his job duties and he undertook not to disclose such information (clause 43 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);

4) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage (subparagraph “d”, paragraph 6 of the commented article).

The commented norm speaks about the theft of someone else's property, without specifying who is the subject of ownership of the property - the employer or a third party (another business entity, another employee). Taking this into account in para. 2 clause 44 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 states that any property that does not belong to a given employee, in particular belonging to the employer, other employees, as well as persons who are not employees of this organization, should be regarded as someone else’s.

Since dismissal under sub. "d" clause 6 of the commented article is a disciplinary measure established by law (see Article 193 of the Labor Code and the commentary thereto) the month period for applying this measure is calculated from the date the court verdict or decision of a judge, body, or official enters into legal force , authorized to consider cases of administrative offenses (paragraph 3 of paragraph 44 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

If a criminal penalty is imposed for committing the specified act, by virtue of which the possibility of continuing work is excluded, the employee may be dismissed as under sub. "d" clause 6 of Art. 81, and according to paragraph 4 of Art. 83 Labor Code (see Article 83 Labor Code and commentary thereto);

5) violation by the employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences (subparagraph “d”, paragraph 6 of the commented article).

The employee is obliged to comply with labor protection requirements established by laws and other regulatory legal acts, as well as rules and instructions on labor protection (see Article 214 of the Labor Code and the commentary thereto). The obligation to comply with labor protection requirements applies to all persons involved in labor relations, therefore, failure to comply with this obligation by any employee is a disciplinary offense. An employment contract may be terminated with any person who has committed the act specified in subparagraph. "d" clause 6 of the commented article.

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

If an employee is dismissed due to the fact that his actions created a real threat of grave consequences, the following must be determined: a) those socially significant interests that were endangered as a result of the employee’s unlawful actions; b) circumstances that prevented the onset of serious consequences. The latter may include randomly occurring factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.

The employer must establish the employee's guilt. It is expressed in the fact that the employee: a) was aware or could and should have been aware of the unlawful nature of his actions related to violation of labor protection requirements; b) foresaw or could and should have foreseen the likelihood of grave consequences. If the employee could not and should not have foreseen the onset of grave consequences, he cannot be dismissed on the grounds in question, which does not preclude the application of other disciplinary measures for violation of labor protection rules.

In the complete absence of the employee’s guilt, holding him accountable and terminating the employment contract under clause. "d" clause 6 of the commented article is excluded. Special cases of this kind are the actions of an employee in a state of emergency or actions aimed at fulfilling the order of a competent manager. In the latter case, the employee’s liability is excluded provided that he warned his immediate or superior manager about the possibility of a situation arising that threatens legally protected rights and interests (see Article 214 of the Labor Code and the commentary thereto).

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

Along with dismissal on the grounds in question, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Administrative Code).

The list of cases that constitute a gross violation by an employee of his duties is exhaustive and is not subject to broad interpretation (clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). Termination of an employment contract on any of the grounds specified in this paragraph of the commented article is carried out in the manner established for the application of disciplinary sanctions (see Article 195 of the Labor Code and the commentary thereto).

7. The grounds listed in paragraphs 1 - 3, 5 and 6 of the commented article are among the general grounds for termination of an employment contract at the initiative of the employer. Along with them, the commented article contains a list of special grounds (clauses 4, 7 - 13) for the dismissal of workers of certain categories in the presence of special conditions arising from the peculiarities of the legal status of these workers. Most of these grounds presuppose the presence of guilty actions on the part of the employee.

8. A change in the owner of the organization’s property (clause 4 of the commented article) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.

Since in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code, the owner of property created from the contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants, by virtue of paragraph. 2 p. 2 art. 48 of the Civil Code have only rights of obligation in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of an employment contract under clause 4 of the commented article c persons listed in this norm, since the owner of the property of a business partnership or company still remains the partnership or company itself, there is no change in the owner of the property (paragraph 4, paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

When the owner of the organization's property changes, the new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant (see Article 75 of the Labor Code and the commentary thereto). The only legal basis that gives rise to the employer’s right to terminate an employment contract with these persons is the fact of a change in the owner of the organization’s property, therefore, for the application of this clause, the personal and professional qualities of those being dismissed (level of qualifications, discipline, etc.) do not matter.

A change in the owner of an organization's property is not grounds for terminating contracts with other employees of the organization. If an employee refuses to continue working due to a change in the owner of the organization’s property, the employment contract is terminated under clause 6 of Art. 77 TK.

For guarantees to the head of the organization, his deputies and the chief accountant upon termination of the employment contract due to a change in the owner of the organization, see Art. 181 TC and commentary to it.

9. An employee who directly services monetary or commodity assets may be dismissed due to the loss of confidence in him by the employer in the event of committing guilty actions (clause 7 of the commented article).

Dismissal on this basis is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.), and provided that they have committed such guilty actions that gave the employer grounds for loss of confidence in him (paragraph 1, paragraph 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). Such employees, as a general rule, are those who belong to the category of persons who bear full financial responsibility for failure to ensure the safety of monetary or commodity values entrusted to them on the basis of special laws or special written agreements (see Articles 242 - 245 of the Labor Code and commentary thereto ).

Accountants, accountants, merchandisers, controllers, labelers and other employees cannot be fired due to loss of trust, since material assets are not directly entrusted to them.

Loss of trust on the part of the employer must be based on objective evidence of the employee’s guilt in causing material damage. If the employee’s guilt is not established, then he cannot be dismissed on the grounds of loss of trust, despite the presence of shortages, damage to entrusted valuables, etc.

If the fact of theft, bribery and other mercenary offenses is established, the employee may be dismissed on the basis of loss of trust and in the case when these actions are not related to his work (paragraph 2 of paragraph 45 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 ).

Termination of an employment contract due to the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provision of incomplete or unreliable information about his income, expenses, property and property obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income , expenses, property and property-related obligations of their spouse and minor children (clause 7.1 of the commented article) is a special case of dismissal of an employee due to loss of trust in him by the employer.

As in the case of termination of an employment contract with an employee due to loss of confidence in him by the employer, in accordance with this paragraph, it is possible to dismiss only those employees who fill positions and perform work specified in the relevant list approved in the manner prescribed by law. The difference between the commented paragraph and paragraph 7 of the commented article lies in the content of those acts that may serve as grounds for loss of trust on the part of the employer, and in the subject composition of the persons who committed such acts.

If, as a general rule, the basis for loss of trust on the part of the employer may be the actions of an employee of a selfish nature, both related and not related to work (measuring, weighing a buyer or customer, committing theft, etc.), then in this case the basis for loss of trust may involve actions that in themselves may not be of a selfish nature (for example, failure to take measures to eliminate a conflict of interest or failure to provide certain information required by law, or the presentation of distorted information). In addition, this kind of information concerns not only the employee himself, but also his family members.

About the concept of “conflict of interest”, measures necessary and sufficient to resolve this conflict; types and content of information about the property status of the employee and his family members; circle of such workers, see Art. Art. 349.1, 349.2 TC and commentary to them.

10. The commission of an immoral offense by an employee performing educational functions that is incompatible with the continuation of this work (clause 8 of the commented article) is also a special basis for termination of the employment contract.

On this basis, it is permissible to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational organizations, vocational training specialists, educators of child care institutions. Employees who do not perform educational functions (including heads of organizations and structural divisions) are not subject to dismissal on this basis.

An offense that contradicts generally accepted moral norms is considered immoral, and it does not matter whether it is related to the work performed or not (clause 46 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2). An offense of this kind should be considered the use of educational measures that are associated with physical or mental violence against the student’s personality (see Article 336 of the Labor Code and the commentary thereto). The severity of the misconduct is subject to assessment taking into account specific circumstances by the person carrying out the dismissal or the labor dispute resolution body.

If guilty actions giving rise to loss of trust or an immoral offense are committed by an employee at the place of work and in connection with the performance of his job duties, then such an employee may be dismissed (respectively, under clauses 7 or 8 of the commented article) subject to compliance the established procedure for applying disciplinary sanctions (see Article 193 of the Labor Code and commentary thereto).

Termination of an employment contract under clauses 7 and 8 of the commented article can also be carried out in the case where guilty actions giving rise to loss of trust, or, accordingly, an immoral offense were committed by the employee not at the place of work and not in connection with the performance of his job duties. Dismissal in this case is not a disciplinary measure, the application of which is subject to the deadlines established by the Labor Code, since by virtue of Part 1 of Art. 192 of the Labor Code, disciplinary sanctions are applied only for failure to perform or improper performance by an employee, through his fault, of the labor duties assigned to him.

By virtue of part 5 of the commented article, dismissal in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense was committed outside his place of work or not in connection with the performance of his job duties, is possible no later than one year from the date of discovery of the offense by the employer . The day when the misconduct was discovered should be considered the day when the employer became aware or should have become aware of the fact that the misconduct had been committed. The circle of relevant officials of the employer must be determined according to the rules established for recording the day the disciplinary offense was discovered (see Article 193 of the Labor Code and the commentary thereto).

Since termination of an employment contract in accordance with clause 7.1 of the commented article is a special case of dismissal due to loss of trust, such dismissal is also carried out according to the rules stated above.

11. The adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant can serve as a basis for termination of the employment contract only if this resulted in a violation of the safety of property, its unlawful use or other damage to the property of the organization (clause 9 of the commented article ).

Termination of an employment contract on this basis is possible if the following conditions are met: a) when making a decision that was subsequently recognized as unfounded, the employee acted outside the normal production and economic risk or was not at all in accordance with the goals of the employer’s business activities; b) the employee’s unreasonable decision actually resulted in property damage (both positive and in the form of lost profits) to the employer.

When deciding whether the decision made was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if a different decision was made. If the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under clause 9 of Art. 81 of the Labor Code cannot be recognized as legal (paragraph 2, paragraph 48 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

It does not matter who caused the damage - the employee himself or other persons; For dismissal, the fact that the decision made by the guilty employee provided the opportunity (served as a necessary condition) for causing damage to the employer is sufficient.

12. On the basis provided for in paragraph 10 of the commented article, an employment contract with a special subject, which in this case is the head of the organization (branch and representative office), as well as his deputies, may be terminated.

In accordance with Art. 55 of the Civil Code, representative offices and branches of a legal entity act as separate structural units. A representative office is a separate division of a legal entity located outside its location, which represents the interests of the legal entity and protects them. A branch is a separate division of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. The heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney.

With the heads of other structural divisions and their deputies, as well as the chief accountant of the organization, the employment contract under clause 10 of the commented article cannot be terminated (paragraph 4 of clause 49 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

The considered basis for termination of an employment contract almost completely reproduces the content of paragraph 6 of the commented article. Consequently, the head of the organization (branch, representative office) and his deputies can be dismissed either under clause 6 or clause 10 of the commented article. In the latter case, the basis for making a decision to terminate an employment contract with a manager may be any violation by him of his labor duties, recognized as gross, including that in accordance with which the employment contract may be terminated under clause 6 of the commented article.

The question of the severity of the disciplinary offense that served as the basis for the dismissal of the employee under paragraph 10 of the commented article is subject to assessment taking into account all the specific circumstances under which it was committed. Such an assessment is made by the person authorized to carry out the dismissal, and if a dispute arises, by the labor dispute resolution body. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm to the health of employees or property damage to the organization (paragraphs 2, 3, paragraph 49 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

13. Submission by an employee to the employer of forged documents when concluding an employment contract (clause 11 of the commented article) as a basis for termination of the employment contract at the initiative of the employer means that the basis for dismissal is the guilty (intentional) actions of the employee.

Dismissal under clause 11 of the commented article is possible only if the employee submits false documents to the employer when concluding an employment contract (for example, when concluding an employment contract, the employee presented a falsified document on special education). If the employer provides knowingly false information that prevents the conclusion of an employment contract, dismissal is carried out in accordance with the rules established by Art. 84 TK.

By virtue of para. 2 clause 51 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2007 No. 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents, then the employment contract with such an employee is terminated according to clause 11 of the commented article, and not in accordance with paragraph 11 of Art. 77 TK.

14. An employment contract with the head of the organization, members of the collegial executive body of the organization may be terminated in cases provided for by the employment contract (clause 13 of the commented article). Thus, the legislator interprets the termination of an employment contract on the grounds established by the employment contract as one of the special cases of dismissal of an employee at the initiative of the employer. In fact, the employment contract with the manager (member of the collegial executive body of the organization) may provide for cases of termination of the employment contract either at the initiative of the employee or due to the occurrence of circumstances that do not depend on the will of the employee or the will of the employer.

15. By virtue of clause 14 of the commented article, an employment contract at the initiative of the employer can be terminated in other cases, in addition to those listed in this article, established by the Labor Code and other federal laws.

16. Among such cases are additional grounds for terminating an employment contract with the head of an organization and a member of its collegial executive body (see paragraphs 1 and 2 of Article 278 of the Labor Code and commentary thereto); termination of an employment contract with a part-time worker (see Article 288 of the Labor Code and commentary thereto), with an employee who is a foreign citizen, etc.

17. Termination of an employment contract is considered legal provided that, in addition to the existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees (see paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

The established procedure provides:

a) a ban on the dismissal of certain categories of workers. It is not allowed to dismiss an employee during the period of his temporary disability and while on vacation (Part 6 of the commented article); pregnant women, as well as women with children under three years of age, single mothers raising a child under 14 years of age (disabled child under 18 years of age), other persons raising these children without a mother (see Article 261 of the Labor Code and commentary to it);

b) warning of impending dismissal. This obligation is assigned to the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction in the number or staff of employees (see Article 180 of the Labor Code and the commentary thereto).

When an employment contract is terminated on the specified grounds (clauses 1 and 2 of the commented article), employees are notified of the upcoming dismissal by the employer personally against signature at least two months before dismissal. If the employee fails to comply with the notice period for dismissal, if he is not subject to reinstatement on other grounds, the court changes the date of his dismissal in such a way that the employment contract is terminated upon expiration of the notice period established by law.

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

When making a decision to reduce the number or staff of an organization’s employees and the possible termination of employment contracts with employees in accordance with paragraph 2 of the commented article, the employer is obliged to notify the trade union body of the primary trade union organization in writing about this no later than two months, and in case of mass dismissal - no later than than three months before the start of the relevant activities (see Article 82 of the Labor Code and commentary thereto).

When making a decision to liquidate an organization, reduce the number or staff of employees of an organization, an individual entrepreneur and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing about this no later than two months before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements for them, terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization’s employees can lead to mass dismissal of workers - no later than three months before the start of the relevant activities (clause. 2 Article 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”). For the concept, criteria and organizational and legal consequences of mass dismissal of workers, see Art. Art. 73, 82 Labor Code and commentary thereto;

c) carrying out mandatory certification. On the conditions and procedure for conducting certification upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, Art. 82 Labor Code and commentary thereto;

d) taking measures to find employment for the released employee. In accordance with part 3 of the commented article, dismissal due to a reduction in the number or staff of employees, as well as the employee’s inconsistency with the position held or the work performed (clauses 2 and 3 of the commented article) is permitted if it is impossible to transfer the employee with his consent to another job .

The same rule applies to the termination of an employment contract with the rector, vice-rector, dean of the faculty, head of a branch (institute), state or municipal educational organization of higher professional education in connection with reaching the age of 65 years (see Article 332 of the Labor Code and the commentary thereto) .

Other work means any other work that the employee is able to perform in accordance with his professional qualifications or state of health. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization that corresponds to the employee’s qualifications, and in the absence of such work, another vacant lower-level position or lower-paid job available in the organization that the employee can perform taking into account the above factors (clause 29 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with a warning about his upcoming dismissal. The employee’s consent to perform a certain job (filling a vacant position) or his refusal to accept a new job (position) is recorded in writing and certified by the employee’s signature.

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

e) taking into account the motivated opinion of the elected trade union body. On the grounds for participation and the procedure for taking into account the motivated opinion of the elected trade union body in the consideration of issues related to the termination of an employment contract at the initiative of the employer, see Art. Art. 82, 373 Labor Code and commentary thereto;

f) the employer obtains consent to terminate the employment contract with the employee. Representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them, except in cases of termination of the employment contract for committing an offense for which, in accordance with the Labor Code, other federal laws, dismissal is provided from work (see Article 39 of the Labor Code and commentary thereto).

Representatives of workers and their associations participating in the resolution of a collective labor dispute during the period of resolution of a collective labor dispute cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent (see Article 405 of the Labor Code and the commentary thereto).

Heads (their deputies) of elected collegial bodies of primary trade union organizations who are not released from their main work, during their term of office and within two years after its end, can be dismissed under paragraphs 2, 3 of the commented article only with the prior consent of the relevant superior elected trade union body (see Articles 374, 376 of the Labor Code and commentary thereto).

By virtue of Art. 269 of the Labor Code, termination of an employment contract with employees under the age of 18 at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur), in addition to compliance with the general procedure, is allowed only with the consent of the relevant state labor inspectorate and the commission for minors and the protection of their rights .

18. When considering a case of reinstatement at work of a person whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer (clause 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 ).

19. When implementing the guarantees provided by labor companies to employees in the event of termination of their employment contract, the general legal principle of the inadmissibility of abuse of rights, including by employees, must be observed. In particular, it is unacceptable for an employee to conceal a temporary disability during his dismissal from work or the fact that he is a member of a trade union or the head (his deputy) of an elected collegial body of a primary trade union organization, an elected collegial body of a trade union organization of a structural unit of the organization (not lower than the shop and equivalent to it), not released from the main job, when the decision on dismissal must be made in compliance with the procedure for taking into account the reasoned opinion of the elected body of the primary trade union organization or, accordingly, with the prior consent of a higher elected trade union body.

If the court establishes that the employee has abused his right, the court may refuse to satisfy his claim for reinstatement at work (while changing, at the request of the employee dismissed during a period of temporary incapacity, the date of dismissal), since in this case the employer should not be responsible for the adverse consequences that occurred as a result of unfair actions on the part of the employee (clause 27 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).

20. An employee dismissed without legal grounds or in violation of the established procedure for dismissal is subject to reinstatement at his previous job. If it is impossible to restore him to his previous job due to the liquidation of the organization, the court declares the dismissal illegal and obliges the liquidation commission or the body that made the decision to liquidate the organization to pay the employee the average salary for the entire period of forced absence. At the same time, the court recognizes the employee as dismissed under paragraph 1 of the commented article due to the liquidation of the organization.

At the request of an employee whose dismissal is declared illegal, the court may limit itself to making a decision to recover in his favor the average earnings for the period of forced absence and to change the wording of the grounds for dismissal at his own request (clause 60 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 ).

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

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

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

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

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

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

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

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

a) absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

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

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

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

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

7) commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments";

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

9) the adoption of an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

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

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid;

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

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

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

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

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

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

with the liquidation of the enterprise (termination of activities

employer - an individual)

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

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

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

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

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

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

be personal in nature;

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

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

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

Thus, the employer has the right to dismiss earlier other employees who have stated in writing their consent to the no-notice dismissal procedure. However, it should be borne in mind that before the relevant order is issued, an employee who has previously agreed to a no-notice dismissal procedure has the right to withdraw his application by notifying the employer in writing.

Employees who have not submitted the appropriate written statements must be sent warnings by the employer about their upcoming dismissal due to the liquidation of the enterprise. If the employee refuses to sign (refuses to receive notification), a report is drawn up to this effect.

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

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

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

To summarize the paragraph, we note that upon termination of the activities of a branch, representative office (other separate structural unit) of an enterprise located in another locality, the manager organizes the termination of employment contracts with employees of the relevant structural units according to the rules provided for cases of liquidation of the enterprise. Relevant orders are also issued regarding the dismissal of these employees.

Early termination of an employment contract due to

with a reduction in the number of employees of the enterprise

(individual entrepreneur)

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

Let us clarify that the dismissal of an employee due to downsizing implies a reduction in the number of units in the corresponding specialty (position, profession), for example, due to a decrease in the volume of work performed and the wage fund. When reducing numbers, first the vacant units in a given specialty are reduced, and then, if necessary, those occupied by “living” workers. In turn, the dismissal of an employee due to staff reduction implies the liquidation of the position he occupied. It is significant that the total number of employees in this case may not decrease, since new units may be introduced into the staffing table at the same time.

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

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

However, before issuing the relevant order, the employer must organize work aimed at ensuring the legality of changes caused by a reduction in the number or staff of the enterprise.

It must be emphasized that the dismissal of an employee due to a reduction in numbers or staff is considered to be properly justified if the enterprise, for one reason or another, actually needs to reduce a particular number of units for the corresponding position (specialty, profession). At the same time, as follows from part three of Article 81 of the Labor Code of the Russian Federation, before dismissal on the grounds in question, the employee must be offered in writing another job available to the employer, which the employee can perform taking into account his state of health and qualifications.

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

1. The employee does not have preferential rights to retain his job (position) in the event of a layoff.

2. The employer does not have other positions (jobs) that, in accordance with the law, can be offered to the employee for subsequent transfer (with the latter’s written consent to the transfer).

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

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

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

When making a decision to dismiss an employee, the employer must, in addition, be guided by the law that establishes preferential rights in relation to certain categories of employees to remain at work in the event of a reduction in numbers or staff.

As follows from this article, when reducing the number or staff, the priority right to remain at work is given to “workers with higher labor productivity and qualifications.” If there are documented equal indicators of labor productivity and equal qualifications of employees considered as candidates for dismissal due to reduction in number or staff, the following have a priority right to continue working:

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

family workers in whose family there are no other workers with independent earnings;

employees who received a work injury (occupational disease) while working for this employer;

workers - disabled people of the Great Patriotic War (combat actions to defend the Fatherland);

employees who improve their qualifications in the area determined by the employer, without interruption from work;

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

employees from among citizens previously discharged from military service, as well as members of their families at work, where they entered for the first time after discharge from military service;

workers - single mothers of military personnel undergoing military service;

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

We also note that the collective agreement (agreement) may determine other categories of workers who, when reducing numbers or staff, have a preferential right to remain at work with equal indicators of labor productivity and equal qualifications. The employer's further course of action involves:

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

2. Bringing to the attention of these employees lists of vacant positions (personally, in writing, against signature and taking into account the date of the expected dismissal of an employee in case of disagreement with the relocation).

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

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

The new owner may (but is not obligated) to offer employees subject to dismissal on the grounds in question another job available at the enterprise. Whether or not to agree with this proposal is up to the employee to decide, guided by personal motives. The employer (in this case, the new owner of the enterprise) issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction) of dismissal, other necessary documents are drawn up.

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

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

Early termination of an employment contract due to

with repeated failure by the employee to comply without

valid reasons for work duties

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

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

a properly executed report on a previous case of failure by an employee to fulfill job duties without valid reasons (preferably with a note indicating that the employee has familiarized himself with the contents of this document);

a properly executed order (instruction) on disciplinary punishment of an employee with a note indicating that the employee is familiar with its contents;

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

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

It is also necessary to recall that, in accordance with the dismissal of an employee for the prescribed reasons, in turn, is also a disciplinary sanction. The general procedure for applying disciplinary sanctions has been determined.

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

Early termination of an employment contract due to

with a single gross violation by an employee

labor responsibilities

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

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

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

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

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

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

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

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

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

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

a court verdict (a decision of a body authorized to apply administrative penalties), which has entered into legal force and confirms the fact that an employee at the place of work committed theft (including small) of someone else’s property, its waste or deliberate destruction (damage);

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

All listed documents must be properly executed. It is also necessary to draw the attention of dear readers to the fact that, as in the case discussed in the previous paragraph, dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when carrying out the procedure In case of early termination of an employment contract, the employer is obliged to adhere to the procedure for applying disciplinary sanctions defined by Article 193 of the Labor Code of the Russian Federation.

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

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

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

In the event that the employee has not been suspended from work, responsibility for the possible consequences of his performance of work duties while intoxicated falls on the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, a subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to continue to deny the employee access to the workplace to perform the work assigned to him in accordance with the employment contract (labor function). ).

Dismissal of an employee in connection with the disclosure of a secret protected by law (subparagraph “c” of paragraph 6) is permitted if the following circumstances occur:

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

2. The relevant information was indeed entrusted to the employee for the purpose of proper performance of the work assigned to him (labor function), while the employee was aware that the specified information constituted a secret protected by law.

3. The fact that the employee disclosed relevant information, for example, personal data of another employee, is documented.

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

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

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

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

1. The employee was in accordance with the established procedure.

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

3. The employee’s violation of these requirements actually entailed serious consequences or created a real threat to their occurrence.

4. The circumstances listed above are documented: a properly executed report on an industrial accident, an expert opinion issued by an authorized body, a resolution of a state labor protection inspector, etc.

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

Early termination of an employment contract due to

with the commission of guilty actions by the employee, directly

servicing monetary or commodity values

In accordance with paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation, the employer has the right, on his own initiative, to terminate the employment contract early in connection with the commission of guilty actions by an employee directly servicing monetary or commodity assets, for example, a bank employee, cashier, storekeeper, freight forwarder, etc. In general, dismissal of an employee on the specified grounds is permitted provided that:

the employee, in accordance with the employment contract concluded with him, was entrusted with the performance of work (labor function) involving the direct servicing of monetary (commodity) assets, and he actually performed the corresponding work, which is documented;

the fact that the employee committed guilty actions is appropriately recorded in the documents;

the commission of guilty actions gives the employer grounds for loss of confidence in the employee.

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

circumstances that in themselves indicate the illegal nature of the employee’s actions, namely: receiving payment for goods (services) sold without the appropriate documents, underfilling, measuring, weighing, shortchanging, violating the rules for the sale of alcoholic beverages and cigarettes, violating the rules for issuing narcotic drugs and etc.;

circumstances indicating the employee’s negligent attitude towards his job duties, which, in turn, gives the employee grounds for loss of trust, including: receiving and issuing sums of money without proper registration, storing keys to premises with material (monetary) valuables in improper location, uncontrolled storage of valuables, maintenance of premises and equipment intended for storing valuables in poor condition, making their theft (loss) possible, etc.;

circumstances indicating that the employee uses the property entrusted to him for direct maintenance for personal purposes.

It should also be emphasized that, in accordance with the provision of the Labor Code under consideration, no distinction is made regarding whether the guilty actions were committed once or repeatedly (twice or more times), what is the amount of damage caused by the actions, etc. - grounds for early termination the employment contract lies in the very fact of committing guilty actions by one or another employee and its corresponding (documentary) confirmation. It also does not matter whether an agreement on full financial liability was previously concluded with the guilty employee or not. Finally, it does not matter whether the work involving the direct servicing of material (monetary) assets by the guilty employee was the main one or whether the latter performed it part-time.

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

To summarize, we note that in order to make a decision to dismiss a guilty employee due to loss of trust in him by the employer, as a rule, the documents listed above are sufficient, i.e. such a decision can be made in the absence of a court verdict that has entered into legal force, as provided for in subparagraph “d” of paragraph 6 (see earlier). However, in the event that the fact that an employee committed guilty actions (theft, bribery, other mercenary offenses) is established in the manner prescribed by law, the culprit may be dismissed due to loss of trust and if the commission of such actions is not related to the performance of service work material (monetary) values.

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

Early termination of an employment contract due to

committed by an employee performing educational

functions, immoral offense

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

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

The fact that an employee has committed an immoral offense must be documented, for example, by materials from an internal investigation. Conclusions based on the results of the investigation (other similar documents) must convincingly indicate the incompatibility of the employee committing an immoral offense with his continuation of his previous work.

This takes into account the circumstances of the commission of the immoral offense, the degree of its severity, as well as whether the employee has previously committed similar offenses. As a rule, when an employer makes a decision on dismissal, it also takes into account how well the employee has proven himself in the eyes of his colleagues and wards.

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

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

Early termination of an employment contract due to

with the employee making an unreasonable decision, which entailed

entails violation of the safety of property, unlawful

its use or other damage to the property of the enterprise

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

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

2. A decision made by an employee and considered by the employer as a circumstance making it possible to dismiss an employee on the grounds provided for in paragraph 9 of part one of Article 81 of the Labor Code of the Russian Federation must be qualified as unreasonable.

3. The consequence of the employee making an unfounded decision was a violation of the safety of the enterprise’s property, its unlawful use or other damage caused to the enterprise’s property.

4. The circumstances listed above are documented.

Let us add that there must be a clearly visible cause-and-effect relationship between the decision made by the employee, the nature of this decision, as well as its consequences for the enterprise (its property interests). In other words, the employee must be responsible for the decision made by him personally.

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

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

Early termination of an employment contract due to

with a single gross violation by an employee-manager

enterprise (branch, representative office) (his deputy)

their work responsibilities

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

The content of the paragraph in question does not define what exactly should be considered a gross violation. Consequently, it seems possible to qualify a violation committed by an employee as gross for the employer either on the basis of an appropriate list, for example, included in the content of an employment contract concluded with an employee, or guided by current law enforcement practice. Let us clarify that the number of gross violations committed by employees - heads of enterprises (branches, representative offices) and their deputies and giving the employer grounds for early termination of an employment contract with them on the basis provided for in paragraph 10 of part one of Article 81 of the Labor Code of the Russian Federation is currently accepted include, in particular, the following: violation of labor protection rules, violation of the rules of accounting for values, abuse of official authority or use of the latter for personal (selfish) purposes, etc.

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

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

2. The employee’s commission of the relevant violation actually took place, and this fact is documented in the proper form.

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

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

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

Early termination of an employment contract due to

with the employee’s presentation to the employer

false documents when concluding an employment contract

As part of the next paragraph, we will consider the procedure for early termination of an employment contract in connection with the submission by the employee of false documents to the employer when concluding an employment contract (clause 11 of part one of Article 81 of the Labor Code of the Russian Federation). It should immediately be clarified that the requirements for the composition of the documents submitted by the employee when concluding an employment contract, and, consequently, the employer’s attempt to accuse the employee of submitting false documents, which the employer did not have the right to insist on, will look untenable from a legal point of view.

Thus, if the employee presented the employer with a forged (relatively speaking, someone else’s or counterfeit) work book or fake passport and this fact is properly documented, for example, by an act of verification of a document that raises doubts, then the employer has the right to terminate the employment contract early with the specified employee on the basis provided for in paragraph 11 of part one of Article 81 of the Labor Code of the Russian Federation.

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

Early termination of an employment contract on grounds

stipulated by the employment contract with

employee-manager (members of the collegial

executive body) of the enterprise

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

Please note that additional grounds for dismissal are established upon concluding an employment contract by agreement between the employee-manager (member of the collegial executive body) and the employer. In this case, it is recommended to be guided by the content of exemplary (standard) employment contracts with the relevant categories of employees.

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

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

Early termination of an employment contract in other cases,

established by law

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

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

Thus, Article 33 of the Federal Law of the Russian Federation of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” gives the employer the right to early termination of an employment contract with an employee - a state civil servant on grounds. The corresponding grounds may be provided for by other laws of the Russian Federation in relation to other categories of workers.

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

The employer issues a corresponding order (instruction) regarding the dismissal of an employee. Based on the order (instruction), another

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

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

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

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

a) guilty actions of the employee;

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

c) circumstances beyond the control of the employee.

When formulating the grounds for termination of an employment contract at the initiative of the employer, the legislator takes into account both the personality of the employee and the characteristics of work determined by the labor function. In this regard, there are general and special grounds for termination of an employment contract at the initiative of the employer. The former can be applied upon the dismissal of any employee, the latter - only for employees of certain categories (for example, heads of organizations, persons whose work activity is related to the servicing of monetary or commodity values). The general grounds for termination of an employment contract at the initiative of the employer are formulated in Art. 81 Labor Code, additional (special) - partially in Art. 81, partially - in articles of the Code regulating the legal status of certain categories of workers and employers, as well as in other federal laws.

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

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

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

As for the termination of the activities of an employer - an individual, in this case we are talking about the termination of the activities of this person as an individual entrepreneur - in the sense as the concept of the latter is interpreted by the Code (see therein). The death of an employer - an individual is an independent basis for termination of an employment contract (see herein).

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

If the employer was an individual registered as an individual entrepreneur, then the employment contract with the employee can be terminated under clause 1 of Art. 81 of the Labor Code, in particular, when the activities of an employer - an individual are terminated on the basis of his own decision, as a result of his being declared insolvent (bankrupt) by a court decision (clause 1 of Article 25 of the Civil Code of the Russian Federation), due to the expiration of the certificate of state registration, refusal to renew a license for certain types of activities (part 3, paragraph 28 of the Resolution of the Plenum of the Supreme Court of March 17, 2004 No. 2).

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

The number of employees is determined according to the technological processes used by the employer and the maintenance needs of its activities.

The staff consists of a combination of management and administrative positions at various levels, as well as specialists. The staff is determined, as a rule, by the manager by issuing a staffing table.

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

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

It should be taken into account that if clause 2 of Art. 81 of the Labor Code of the Russian Federation in the previously valid version spoke about reducing the number or staff of an organization’s employees, i.e. employer - a legal entity, then currently the effect of this paragraph also applies to the employer - individual entrepreneur (in the sense in which it is interpreted by Article 20 of the Labor Code of the Russian Federation).

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

The employee's insufficient qualification level must be confirmed by certification results.

By the time the Labor Code of the Russian Federation came into force, certification as a form of checking and assessing the level of qualifications of personnel was used in some areas of professional activity (primarily in the field of state and municipal service) and in relation to certain categories of workers (mainly in relation to specialist employees). The procedure for conducting certification in these cases is determined centrally (see, for example, Decree of the President of the Russian Federation of February 1, 2005 No. 110 “On conducting certification of state civil servants of the Russian Federation”). At the same time, the possibility of introducing the institution of employee certification in certain organizations cannot be ruled out (part 1, paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

In any case, the procedure for conducting certification requires compliance with the following rules: a) the presence of a regulatory framework (regulations on certification); b) implementation of the certification procedure by a commission created in the manner established by the relevant regulations; c) the universal nature of certification (not individual, but all (with exceptions determined by regulation) employees of a certain category are subject to certification); d) frequency of certification (employees are subject to certification regularly, as a rule, after a certain period after the previous certification established in the regulatory order).

Since, by virtue of the Labor Code of the Russian Federation, termination of an employment contract on the grounds that an employee does not have the appropriate level of qualifications is permitted provided that the lack of qualifications is confirmed by the results of certification, the dismissal of any employee due to inconsistency with the position held or the work performed due to insufficient qualifications (clause 3 of Article 81 of the Labor Code RF) is possible subject to preliminary certification and the availability of the conclusion of the certification commission (part 1, paragraph 31 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). This provision of the Code actually requires each employer to implement measures aimed at creating the organizational and legal conditions necessary to carry out certification of all personnel of its employees, because otherwise it deprives itself of the opportunity to terminate employment contracts with employees on the specified basis.

5. The basis for dismissal at the initiative of the employer is the employee’s repeated failure to fulfill work duties without good reason (clause 5 of Article 81 of the Labor Code of the Russian Federation).

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

Such violations, in particular, include:

a) the absence of an employee from work or the workplace without good reason. It must be borne in mind that if the employment contract concluded with the employee or the employer’s local regulatory act (order, schedule, etc.) does not stipulate the specific workplace of this employee, then in the event of a dispute arising on the issue of where the employee is required to be in the performance of his work duties, it should be assumed that by virtue of 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 employer;

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

c) refusal or evasion without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work (see p. 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

If the need to conclude an agreement on full financial liability arose after concluding an employment contract with the employee and is due to the fact that, due to changes in current legislation, the position he holds or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full financial responsibility, but the employee refuses to enter into such an agreement, the employer, by virtue of Part 3 of Art. 74 is obliged to offer him another job, and in the absence of it or the employee refuses the offered work, the employment contract is terminated with him in accordance with clause 7 of Art. 77 Labor Code of the Russian Federation.

An employee’s refusal (regardless of the reason) to comply with the employer’s order to go to work before the end of the vacation cannot be considered a violation of labor discipline (clause 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

Dismissal for repeated failure by an employee to fulfill work duties is possible if a disciplinary sanction was previously applied to the employee, which at the time of repeated failure by the employee to fulfill work duties without good reason was not removed or extinguished (part 1, paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 city N 2). The list of disciplinary sanctions is established by law ().

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

If an employee has repeatedly violated labor discipline, but no disciplinary sanction has been applied to him, then he cannot be dismissed under clause 5 of Art. 81. Violation of labor discipline is recognized as repeated if, despite the penalty, the employee’s unlawful misconduct continues. In this case, a new penalty may be applied to him, including dismissal under clause 5 of Art. 81 (part 2, paragraph 33 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

Actions of an employee that are not related to his work duties should not be considered a disciplinary offense. Therefore, it is impossible to dismiss an employee under clause 5 of Art. 81 of the Labor Code, for example, for improper behavior in everyday life. Termination of an employment contract on this basis is specified in the norms of the Labor Code regulating the legal status of teaching staff (see paragraph 1 of Article 336 of the Labor Code of the Russian Federation and the commentary thereto).

6. A one-time gross violation of labor duties by an employee (clause 6 of Article 81 of the Labor Code of the Russian Federation) is sufficient grounds for terminating an employment contract with an employee, regardless of whether he has previously had disciplinary sanctions. Gross violations are:

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

As follows from the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 39), dismissal on the specified basis, in particular, can be made:

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

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

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

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

e) for unauthorized use of days off (see thereto), as well as for unauthorized going on vacation (see Article 123 of the Labor Code of the Russian Federation and commentary thereto). At the same time, it is necessary to take into account that the use of rest days by an employee is not absenteeism in the case where the employer, in violation of the statutory obligation, refused to provide them and the time the employee used such days did not depend on the discretion of the employer (for example, a refusal to provide an employee who is a donor with in accordance with Part 4 of Article 186 of the Labor Code of the Russian Federation, a day of rest immediately after each day of donating blood and its components).

When the court considers a case on the reinstatement of a person transferred to another job and dismissed for absenteeism due to refusal to start work, the employer is obliged to provide evidence indicating the legality of the transfer itself (see Articles 72.1 and 72.2 of the Labor Code of the Russian Federation and commentary to them). If the transfer is declared illegal, dismissal for absenteeism cannot be considered justified and the employee is subject to reinstatement at his previous job (clause 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that the average in such cases, the wages of the reinstated employee can be recovered not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced (clause 41 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 );

2) appearing at work in a state of alcohol, drug or other toxic intoxication (subparagraph “b”, paragraph 6, article 81 of the Labor Code of the Russian Federation).

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

Dismissal on this basis can also occur when the employee during working hours was in such a state not at his workplace, but on the territory of the organization or facility in which, on behalf of the administration, he had to perform a labor function (see paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). It also does not matter when the employee was drunk at work: at the beginning or end of the working day. At the same time, if an employee, while drunk on the territory of an organization or other facility, was absent from his workplace for more than four hours in a row during the working day, the employer has the right to terminate his employment contract for absenteeism without good reason.

An employee's drunken state or drug or toxic intoxication can be confirmed by both a medical report and other types of evidence;

3) disclosure of secrets protected by law (state, commercial, official and other, including personal data of another employee or employees), which became known to the employee in connection with the performance of his job duties (subclause “c” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation ). On the concept, procedure and conditions for an employee’s access to state, commercial and official secrets, see paragraph 5 of the commentary to Art. 57 Labor Code of the Russian Federation.

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

Legal measures include:

development and adoption of special regulations on official and commercial secrets;

approval of the list of information constituting official and commercial secrets;

inclusion in employee employment contracts of conditions on non-disclosure of official and commercial secrets, etc.

Accordingly, as stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (clause 43), if an employee challenges the dismissal under sub. "c" clause 6 of Art. 81 of the Code, the employer is obliged to provide evidence indicating that the information that the employee disclosed, in accordance with current legislation, relates to state, official, commercial or other secret protected by law or to the personal data of another employee, this information became known to the employee in connection with performance of his labor duties and he undertook not to disclose such information;

4) committing at the place of work theft (including small) of someone else’s property, embezzlement, intentional destruction or damage (subparagraph “d”, paragraph 6 of Article 81 of the Labor Code of the Russian Federation).

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

It is indisputable that the following property is subject to this rule:

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

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

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

Taking this into account, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states (part 2, paragraph 44) that any property that does not belong to a given employee should be regarded as someone else’s property, in particular property belonging to the employer, others employees, as well as persons who are not employees of this organization.

Since dismissal under sub. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is a disciplinary measure established by law (see Art. 193 of the Labor Code of the Russian Federation and the commentary to it) the month period for applying this measure is calculated from the date the court verdict or decision of the judge, body, official authorized to consider cases enters into legal force on administrative offenses (part 3, paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

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

If an employee is dismissed due to the fact that his actions created a real threat of grave consequences, the socially significant interests that were endangered as a result of the employee’s unlawful actions must be determined, firstly; secondly, the circumstances that prevented the onset of grave consequences. These may include randomly occurring factors, the actions of other persons or the employee himself, which prevented the onset of serious consequences.

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

In the complete absence of the employee’s guilt, holding him accountable and terminating the employment contract under clause. "d" clause 6 of Art. 81 of the Labor Code of the Russian Federation is excluded. Special cases of this kind are the actions of an employee in a state of emergency or actions aimed at fulfilling the order of a competent manager. In the latter case, the employee’s liability is excluded provided that he warned his immediate or superior manager about the possibility of a situation arising that threatens the rights and interests protected by law (see Article 214 of the Labor Code of the Russian Federation and the commentary thereto).

Along with dismissal on the grounds in question, the relevant guilty officials may be subject to administrative penalties (Article 5.27 of the Administrative Code).

As follows from the content of paragraph 6 of Art. 81 of the Labor Code, the list of cases that constitute a gross violation by an employee of his duties is exhaustive and cannot be interpreted broadly (clause 38 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). Termination of an employment contract on any of the grounds specified in this paragraph of Art. 81 of the Labor Code, is carried out in the manner established for the application of disciplinary sanctions (see Art. 195 of the Labor Code of the Russian Federation and the commentary thereto).

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

8. A change in the owner of the organization’s property (clause 4 of Article 81) can serve as a basis for the dismissal of only the head of the organization, his deputies and the chief accountant.

Since in accordance with paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code of the Russian Federation, the owner of property created at the expense of contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by business partnerships or companies in the course of their activities, is the company or partnership, and the participants, by virtue of paragraph. 2 p. 2 art. 48 of the Civil Code of the Russian Federation have only rights of obligations in relation to such legal entities (for example, to participate in the management of the affairs of a partnership or company, to take part in the distribution of profits), a change in the composition of participants (shareholders) cannot serve as a basis for termination of an employment contract under clause 4 of Art. 81 of the Labor Code of the Russian Federation with the persons listed in this norm, since in this case the owner of the property of a business partnership or company still remains the partnership or company itself and there is no change in the owner of the property (part 4, paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17 March 2004 N 2).

When the owner of the organization's property changes, the new owner, no later than three months from the date of his ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant (see Article 75 of the Labor Code of the Russian Federation and the commentary thereto). The only legal basis that gives rise to the employer’s right to terminate an employment contract with these persons is the fact of a change in the owner of the organization’s property, therefore, for the application of this clause, the personal and professional qualities of those being dismissed (level of qualifications, discipline, etc.) do not matter.

Dismissal on this basis is possible only in relation to employees directly servicing monetary or commodity assets (reception, storage, transportation, distribution, etc.), and provided that they have committed such guilty actions that gave the employer grounds for loss of confidence in him (part 1, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). Such employees, as a general rule, are those who belong to the category of persons who bear full financial responsibility for the monetary or commodity values entrusted to them on the basis of special laws or special written agreements (see Articles 242 - 245 of the Labor Code of the Russian Federation and commentary thereto) .

Accountants, accountants, merchandisers, controllers, labelers and other employees cannot be fired due to loss of trust, since material assets are not directly entrusted to them.

Loss of trust on the part of the employer must be based on objective evidence of the employee’s guilt in causing material damage or committing illegal actions. If the employee’s guilt is not established, then he cannot be dismissed on the grounds of loss of trust, despite the presence of shortages, damage to entrusted valuables, etc.

If the fact of theft, bribery and other mercenary offenses is established, an employee may be dismissed on the basis of loss of trust and in the case when these actions are not related to their work (part 2, paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).

10. The commission of an immoral offense by an employee performing educational functions that is incompatible with the continuation of this work (clause 8 of Article 81 of the Labor Code of the Russian Federation) is also a special basis for termination of the employment contract. On this basis, it is permissible to dismiss only those employees who are engaged in educational activities, for example, teachers, teachers of educational institutions, vocational training specialists, and educators of children's institutions. Employees who do not perform educational functions (including heads of organizations and structural divisions) are not subject to dismissal on this basis.

An offense that contradicts generally accepted moral standards is considered immoral, and it does not matter whether it is related to the work performed or not (clause 46 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

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

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

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

Termination of an employment contract on this basis is possible if the following conditions are met:

By making a decision that was subsequently recognized as unfounded, the employee acted outside the normal production and economic risk or was not at all in accordance with the goals of the employer’s business activities;

The employee’s unreasonable decision actually resulted in property damage (both positive and in the form of lost profits) to the employer.

When deciding whether the decision made was unreasonable, it is necessary to take into account whether the named adverse consequences occurred precisely as a result of this decision and whether they could have been avoided if a different decision was made. Moreover, if the employer does not provide evidence confirming the occurrence of these adverse consequences, dismissal under clause 9 of Art. 81 of the Labor Code of the Russian Federation cannot be recognized as legal (part 2, paragraph 48 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

12. A one-time gross violation by the head of an organization (branch, representative office), or his deputies of their labor duties (clause 10 of Article 81 of the Labor Code of the Russian Federation) is grounds for termination of an employment contract with a special subject of the employment contract, which in this case are the head of the organization (branch and representative office), as well as his deputies.

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

The employment contract with the heads of other structural divisions and their deputies, as well as the chief accountant of the organization cannot be terminated under clause 10 of Art. 81 of the Labor Code of the Russian Federation (part 4, clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

This basis for termination of an employment contract almost textually reproduces the content of paragraph 6 of Art. 81 Labor Code of the Russian Federation. Consequently, the head of the organization (branch, representative office) and his deputies can be dismissed either under clause 6 (when committing an offense that is a gross violation) or under clause 10 of Art. 81 Labor Code of the Russian Federation. In the latter case, the basis for making a decision to terminate the employment contract with the manager may be any violation by him of his labor duties, recognized as gross, including that in accordance with which the employment contract may be terminated under clause 6 of Art. 81 Labor Code of the Russian Federation. The question of the severity of the disciplinary offense that served as the basis for the dismissal of the employee under clause 10 of Art. 81, there is a question of fact, i.e. it is subject to assessment taking into account all the specific circumstances under which it was committed. Such an assessment is made by the person authorized to carry out the dismissal, and if a dispute arises, by the labor dispute resolution body. In this case, the responsibility to prove that such a violation actually took place and was of a gross nature lies with the employer. In particular, as a gross violation of labor duties by the head of the organization (branch, representative office), his deputies should be regarded as failure to fulfill the duties assigned to these persons by the employment contract, which could lead to harm to the health of employees or property damage to the organization (parts 2 and 3 clause 49 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

13. Submission by an employee of forged documents to the employer when concluding an employment contract (clause 11 of Article 81 of the Labor Code of the Russian Federation) as a basis for termination of the employment contract at the initiative of the employer means that in this case the grounds for dismissal are the guilty (deliberate) actions of the employee.

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

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

By virtue of Part 2, Clause 51 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2007 No. 2, if the rules for concluding an employment contract were violated through the fault of the employee himself due to the submission of false documents, then the employment contract with such an employee is terminated under the specified clause, and not on the grounds listed in Art. 84 Labor Code of the Russian Federation.

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

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

A special case of termination of an employment contract is the dismissal of an employee due to reaching an age that, by force of law, precludes him from retaining the given job.

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

16. Termination of an employment contract is considered legal provided that, in addition to the existence of grounds provided for by law, the employer complies with the established procedure for terminating the employment contract, and also provides guarantees upon dismissal established by law for certain categories of employees (see paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 17 March 2004 N 2). This procedure provides:

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

warning of impending dismissal. This obligation is assigned to the employer in the event of termination of the employment contract due to the liquidation of the organization, reduction in the number or staff of employees (see here).

When an employment contract is terminated on the specified grounds (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation), employees are notified of the upcoming dismissal by the employer personally against signature at least two months before dismissal. If the employee fails to comply with the notice period for dismissal, if he is not subject to reinstatement on other grounds, the court changes the date of his dismissal in such a way that the employment contract is terminated upon expiration of the notice period established by law.

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

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

When making a decision to reduce the number or staff of an organization’s employees and the possible termination of employment contracts with employees in accordance with clause 2 of Art. 81 the employer is obliged to inform the trade union body of the primary trade union organization about this in writing no later than two months, and in case of mass dismissal - no later than three months before the start of the relevant activities (see Article 82 of the Labor Code of the Russian Federation and the commentary thereto).

When making a decision to liquidate an organization, reduce the number or staff of the organization's employees and the possible termination of employment contracts with employees, the employer is obliged to notify the employment service authorities in writing no later than two months before the start of the relevant activities and indicate the position, profession, specialty and qualification requirements for them, terms of remuneration for each specific employee, and if the decision to reduce the number or staff of the organization’s employees can lead to mass dismissal of workers - no later than three months before the start of the relevant measures (clause 2 of Art. 25 of the Law of the Russian Federation of April 19, 1991 N 1032-1 “On employment in the Russian Federation”). On the concept, criteria and organizational and legal consequences of mass dismissal of workers, see Art. Art. 73, 82 of the Labor Code of the Russian Federation and commentary thereto;

carrying out mandatory certification. On the conditions and procedure for conducting certification upon termination of an employment contract at the initiative of the employer, see paragraph 4 of the commentary to this article, paragraph 8 of the commentary to Art. 82 TK;

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

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

Other work means any other work that the employee is able to perform in accordance with his professional qualifications or state of health. In this case, the employer is obliged to offer the employee a job (vacant position) in the same organization that corresponds to the employee’s qualifications, and in the absence of such work, another vacant lower-level position or lower-paid job available in the organization that the employee can perform taking into account the above factors (clause 29 Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2). In practice, a list of vacancies available to the employer or a notice of their absence is given to the employee simultaneously with a warning about his upcoming dismissal. The employee’s consent to perform a certain job (filling a vacant position) or his refusal to accept a new job (position) is recorded in writing and certified by the employee’s signature.

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

When considering cases of reinstatement of civil servants dismissed due to the liquidation of a government agency or reduction of civil service positions, one should be guided by the provisions of Art. Art. 31, 32 and 38 of the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”.

It must be borne in mind that, based on Art. 73 of the said Federal Law, the Labor Code of the Russian Federation, other federal laws, other regulatory legal acts of the Russian Federation, as well as laws and other regulatory legal acts of the constituent entities of the Russian Federation containing labor law norms, may be applied to relations related to the civil service, in part, not regulated by the Federal Law “On the State Civil Service of the Russian Federation” (clause 30 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

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

Obtaining consent by the employer to terminate the employment contract with the employee. Representatives of employees participating in collective negotiations during the period of their conduct cannot be dismissed at the initiative of the employer without the prior consent of the body that authorized them to represent them, except in cases of termination of the employment contract for committing an offense for which dismissal is provided for in accordance with the Code and other federal laws From the job ().

Leaders (their deputies) of elected collegial bodies of primary trade union organizations who are not released from their main work may be dismissed under clauses 2, 3 or 5 of Art. during their term of office and within two years after its end. 81 of the Labor Code of the Russian Federation only with the prior consent of the relevant higher elected trade union body (see paragraph 11 of the commentary to Article 82; Art., and the commentary thereto).

An employment contract can be terminated by the employer if the employee is not suitable for the position held or the work performed due to insufficient qualifications or health conditions that prevent continued work.

The inability to properly perform work duties due to health reasons must be confirmed by a medical report.

In case of termination of the employment contract under sub. "a" clause 3 art. 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence confirming that the employee’s health condition, in accordance with the medical report, prevented him from properly performing his job duties. If the employee properly performs his job duties, however, it turns out that he needs, in accordance with a medical report, to be provided with another job due to the fact that the work performed is contraindicated for him or is dangerous for the team of workers or the citizens he serves, by virtue of Part 2 of Art. 72 of the Code, if an employee refuses to be transferred to another available job that is not contraindicated for him due to health reasons, or if there is no relevant work in the organization, the employment contract with the employee is terminated in accordance with clause 8 of Art. 77 Labor Code of the Russian Federation.

The presence of a disability in an employee cannot in itself serve as a basis for his dismissal under subsection. "a" clause 3 art. 81 Labor Code of the Russian Federation. Dismissal in this case is permitted if there is a direct causal relationship between the employee’s disability and the quality (quantity) of the work he performs. Partial loss of ability to work is not grounds for dismissal of an employee if he properly performs his job duties and if the work performed is not contraindicated for him for health reasons and is not dangerous to others.

Upon dismissal under sub. "a" clause 3 art. 81 of the Labor Code of the Russian Federation, the employee is paid severance pay in the amount of two weeks’ average earnings (Article 178 of the Labor Code of the Russian Federation).

The concept of “inconsistency” is mobile, dynamic, because the technical organization of labor, as well as the worker’s abilities, his special training, and state of health, do not remain constant. Improvements in the technical equipment of labor entail changes in the qualification and professional composition of teams. There is a need to acquire new knowledge and skills. And the reluctance or inability of individuals to master more complex types of activities or even simply adapt to new production conditions may lead to dismissal under clause. "b" clause 3 of Art. 81 Labor Code of the Russian Federation. A prerequisite for the dismissal of an employee due to inadequacy of the position held or the work performed due to insufficient qualifications is the absence of his guilt in the improper performance of job duties. Insufficient qualifications must be confirmed by certification results. However, the procedure for conducting certification of employees is not defined by the Labor Code (the procedure for creating a certification commission, its composition, certification procedure, etc. is not specified), which makes it difficult to apply this basis for terminating an employment contract. Certification is provided for by federal laws for certain categories of workers (state and municipal employees, bailiffs, rescuers, prosecutors, teachers, scientists, etc.). Certification of employees can be carried out by the employer even if it is not mandatory in accordance with federal law or other regulatory legal act, but its implementation is provided for by the local regulatory act of the organization. When conducting certification, which may serve as a basis for dismissal of an employee in accordance with subparagraph. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation, the certification commission must include a member of the commission from the corresponding elected trade union body. Dismissal of workers who are members of a trade union under sub. "b" clause 3 of Art. 81 of the Labor Code of the Russian Federation is carried out taking into account the reasoned opinion of the elected trade union body of the organization in accordance with Art. 373 Labor Code of the Russian Federation.

It should also be noted that dismissal under clause 3 of Art. 81 of the Labor Code of the Russian Federation is permissible if it is impossible to transfer an employee with his consent to another job.