How to fire an employee who does not fulfill his job duties. Dismissal of an employee due to repeated failure to fulfill his labor duties

produced at the initiative of the employer. Labor legislation has established a complex procedure for dismissal, and in judicial practice, there are certain nuances that have not been disclosed by the legislator.

Conditions for the legality of dismissal for repeated failure to perform labor duties

According to clause 5, h. 1, Art. 81 of the Labor Code, the repeated failure of workers subjected to disciplinary sanction to fulfill their labor duties in the absence of a valid reason is a reason to terminate the contract at the will of the employer.

Based on the interpretation of the norm, for the recognition of the dismissal as legitimate, 3 conditions are necessary simultaneously:

Violation of labor discipline

According to clause 35 of the resolution of the Plenum of the Supreme Court of 17.03.2004 No. 2, the basis for dismissal under clause 5 of part 1 of Art. 81 of the Labor Code is non-performance or guilty improper performance of labor duties.

The legislator and judicial practice distinguish 3 types of non-compliance with labor discipline:

1. Not in the workplace.

   The indication in the contract with the employee or in a separate act of the employer of the specific workplace of the employee is optional. In the absence of certainty, the provision of Art. 209 of the Labor Code, where it is established that a worker is a place under the direct or indirect control of the employer, where the worker must be in connection with work or where he must arrive.

   In terms of legal consequences, the absence at the workplace for a short time and absence for more than 4 hours in a row during a work shift or working day are distinguished. According to Art. 81 Labor Code more than 4-hour absence is absenteeism related to another motive for dismissal - a gross violation of labor duties.

2. Refusal of an employee to work due to the adoption by the employer of a local act on changing labor standards.

   NOTE! Do not confuse refusal to work due to changes in labor standards with refusal due to changes in the terms of the employment contract. The latter is not a violation of labor discipline and, in accordance with paragraph 7 of Part 1 of Art. 77 of the Labor Code, is considered as a general basis for the termination of labor legal relations.

3. Failure to comply with the mandatory conditions for admission to work, in particular:
   • refusal, evasion from medical examination;
   • refusal to study and pass exams on safety measures, operating rules and labor protection during working hours, etc.

More about non-fulfillment of mandatory conditions for admission to work

Grounds for dismissal under clause 5, h. 1, Art. 81 TC can serve as a refusal or evasion of a medical examination, carried out in the form of:

1. Medical examinations before work and after the end of the working day or shift.

   The obligation of such a medical examination is established, in particular, for drivers by the Procedure for conducting pre-shift, pre-trip and post-shift, post-trip medical examinations, approved. by order of the Ministry of Health dated December 15, 2014 No. 835n. In addition, by virtue of Art. 330.3 TC it is mandatory for employees working underground.

2. Periodic medical examination.

   For certain categories of employees, according to Art. 212 TC, it is necessary to undergo periodic medical examinations. So, for the prevention of occupational diseases and in order to establish the suitability of the worker to work by virtue of Art. 213 TC medical examination is carried out by workers employed in the following works:

   • where there are harmful, dangerous working conditions;
   • traffic related.

   To prevent the onset and subsequent spread of diseases, that is, to protect the health of the population, employees undergo a medical examination:

   • children's and medical organizations;
   • waterworks,
   • enterprises of the food industry, public catering, trade, etc.

By order of the Ministry of Health and Social Development of 12.04.2011 No. 302n, a list of such works and the frequency of medical examinations were approved. For example, a crane operator and an elevator operator are required to undergo a medical examination every 2 years; underground workers in the Far North - once a year; land transport drivers - every 2 years; teachers, educators - annually.

Needs clarification and such grounds for dismissal as refusal to study and pass exams on safety, operating rules and labor protection during working hours.

So, according to Art. 225 of the Labor Code, all employees are required to undergo occupational safety training. The order of training and the rules for testing the acquired knowledge were approved by the joint resolution of the Ministry of Labor and the Ministry of Education dated January 13, 2003 No. 1/29.

IMPORTANT! The listed violations of labor discipline are grounds for dismissal, if they are not due to a valid reason.

Violation of labor discipline for a good reason

Judicial practice and the interpretation of individual articles of the Labor Code provide some clarity on the issue of which reasons are valid:

How to fire an employee for non-performance of job duties: step by step instructions

Dismissal of an employee is carried out in 6 stages; including this identification and verification of the motive for dismissal, execution of termination of the contract, settlement with the employee and the issuance of documents to him. Let us present the dismissal algorithm in the form of an instruction table:

NOTE! Sometimes the dismissal procedure does not end with a calculation - for example, if an employee appeals an unfair, in his opinion, dismissal in a district court.

Revealing violation of labor discipline

After or at the time of the employee's violation of labor discipline, the employer must record the violation. At the same time, the Labor Code does not provide for such an obligation, but the registration of the fact of violation is necessary in the interests of the employer himself - otherwise the employee gets the opportunity to challenge the dismissal.

The procedure for detecting and registering a violation in practice is as follows:

1. The employer is informed in any way about the fact, which is, presumably, a violation of labor discipline. The methods of notifying the employer may include:
   • memorandum of the head of the violating employee, his colleagues or other employees;
   • complaints from third parties (for example, customers of the organization);
   • an act drawn up on the basis of an act committed by an employee, for example, an act of refusing to undergo a medical examination.
2. The employer checks the information received.

   For example, when the immediate supervisor of an absent employee notifies the supervisor that the offender is not at the workplace, the supervisor collects a commission, which necessarily includes an employee of the organization's personnel department. The Commission checks the fact of absence and its reasons.

   The commission must approach the audit responsibly. So, biased research, making an unreasonable decision or conducting an inspection by an interested person is unacceptable, as stated, for example, in the appeal ruling of the Voronezh Regional Court dated June 17, 2014 No. 33-3172.

   The inspection should determine what the non-fulfillment or improper fulfillment of official duties, interpreted as a violation, and also establish the time of its commission. The lack of data on this, according to the Supreme Court of the Republic of Tatarstan, expressed in the appeal ruling dated 09/08/2014 No. 33-11352 / 2014, indicates that the fact of the disciplinary offense has not been proven.

   Practice also speaks of the need to correlate the misconduct with the subsequent dismissal. For example, pointing out the absence of negative consequences for the organization, despite the stop of transport as a result of the absence of an employee, the Omsk Regional Court canceled the dismissal of the latter in the appeal ruling dated April 15, 2015 No. 33-2470 / 2015.

3. Upon confirmation of the information received about the violation, the violation of official duties is recorded. Registration can be carried out in the form of an official audit conclusion or in another form.

   The dismissal of an employee is unacceptable if the inspection does not establish a violation. For example, in the appellate ruling of August 22, 2014 No. 33-32951 / 2014, the Moscow City Court indicated that the verification of the violation did not reveal, therefore, the order to dismiss is illegal.

Checking the legality of dismissal in a specific situation

After identifying the fact of the violation, the employer must check whether this violation is a legal reason for dismissal. This requires a number of actions:

1. Request an explanation from the employee about the disciplinary violation committed by him (Article 193 of the Labor Code).

   If the employee refuses to receive the submitted demand, it is advisable to read the demand out loud and put a corresponding mark on the document.

   It is when giving an explanation that the employee is given the opportunity to declare the existence of a valid reason for which he had to commit a violation, or other mitigating circumstances. Failure to provide an employee with an opportunity to provide an explanation is a violation of the dismissal procedure. In this case, the courts decide to reinstate the employee in his previous job, as determined, for example, by the Novgorod Regional Court in the appeal ruling dated 10.10.2012 No. 2-755-33-1600.

   The employee's refusal to give an explanation is not an obstacle to the imposition of a disciplinary sanction. If the employee does not provide an explanation within 2 working days, starting from the next after the presentation of the request, the employer draws up an appropriate act.

2. Check compliance with the terms established by the TC.

   So, by virtue of Art. 193 of the Labor Code, the penalty is applied no later than six months after the commission of the misdemeanor and no later than a month from the moment of its discovery. Moreover, in accordance with Art. 81, an employee who has violated labor discipline can be dismissed if he has a valid disciplinary sanction, which is paid off one year after imposition according to the general rule or earlier - at the will of the employer (Article 194 of the Labor Code). An employee who has an extinguished penalty is considered not to have it at all.

   Thus, at this stage, the employer must determine whether the statute of limitations for the application of the penalty has expired and whether the previous penalty of the employee, who is supposed to be fired, has not expired.

   IMPORTANT! In practice, the provision of the law on the legality of dismissal under paragraph 5 of part 1 of Art. 81 only in the presence of an unreleased disciplinary sanction causes a lot of difficulties.

   In order to avoid violations during the dismissal of employees, we present the positions of the courts in relation to various situations:

   Situation	Dismissal	Base
   The employee had a disciplinary sanction, but the court declared the order on its imputation unlawful	Wrongly	Appeal ruling of the Armed Forces of the Republic of Tuva dated 03.22.2016 No. 33-412 / 2016
   For the misconduct that served as the basis for the dismissal, the employee has already incurred disciplinary responsibility	Wrongly	Appellate ruling of the Armed Forces of the Chuvash Republic dated March 11, 2015 No. 33-1061 / 2015
   The worker committed all or part of the disciplinary offenses before being transferred to the current position	Wrongly	Definition of the aircraft dated October 29, 2009 No. 5-B09-110
   	Rightly	Appeal ruling of the Moscow Regional Court dated 15.02.2016 No. 33-199 / 2016
   The employee has committed a violation for which the employer wants to fire him, before the imposition of a penalty for the first disciplinary offense	Wrongly	Appellate ruling of the Armed Forces dated 04/11/2014 No. 78-APG14-8
   An employee committed several violations in one day	Wrongly	Cassation ruling of the St. Petersburg City Court dated 25.01.2012 No. 33-815
   The inspection revealed several violations, but the employee was not brought to justice for them	Wrongly	Appellate ruling of the Astrakhan Regional Court dated 02.19.2014 No. 33-748 / 2014

3. Check the presence / absence of restrictions on the dismissal of an employee.

   So, for example, under Art. 81 of the Labor Code is prohibited from dismissing an employee who is on sick leave or on vacation, and by virtue of Art. 261 of the Labor Code, the employer cannot express an initiative to dismiss a pregnant employee. In other words, at this stage, the manager must make sure that there are no obstacles to the dismissal of the violator of labor discipline.

Dismissal registration

According to Art. 84.1 of the Labor Code, the dismissal takes place in the form of an order. At the same time, disciplinary action is also imposed on the employee by order of the employer. But it is not necessary to duplicate orders, it is enough to issue one - on the imposition of a penalty in the form of dismissal and on the termination of the employment contract.

As Rostrud explained in a letter dated 01.06.2011 No. 1493-6-1, dismissal, which is a measure of disciplinary punishment, is formalized by order. The act is drawn up on the basis of the unified form No. T-8, approved. Resolution of the State Statistics Committee of 05.01.2004 No. 1. The column "Basis" is filled in on the basis of a memorandum, explanatory employee and acts of the employer.

But the issuance of 2 orders (on the application of the penalty and on the termination of the contract in the form of T-8) will not be a violation of the law.

After the issuance of the order, the employer under Art. 84.1 TC is obliged to familiarize the worker with it. Since in this case the dismissal occurs as a result of a disciplinary offense and is a penalty, the employer, by virtue of Art. 193 TC, is obliged to familiarize the employee with the order within 3 days from its publication.

An entry is made about the dismissal of an employee in his work book. As stated in Art. 84.1 of the Labor Code, the wording of the grounds for dismissal must comply with the text of the Labor Code.

The calculation and issuance of documents are made on the day of termination of labor legal relations. After the issuance of the order of dismissal, the personnel service draws up a calculation note, which is used to account for the payments due to the employee.

Let's summarize. Dismissal under clause 5 of h. 1 of Art. 81 of the Labor Code is possible when the basis is a violation of labor discipline if the employee has an outstanding disciplinary sanction and does not have a valid reason. Violation of labor discipline can be expressed in absence from the workplace, failure to comply with the conditions of admission to work or refusal to work due to changed labor standards.

Dismissal begins with identifying the grounds for this, which is then verified. After confirming the legality of the dismissal, an order is drawn up. In the last place, the calculation and issuance of documents to the worker are made.

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Clause 5 of Art. 81 TC provides for the possibility dismissal of an employee for repeated failure to perform work duties without good reason, if he has a disciplinary action. Dismissal requires a combination of several conditions:

1) non-fulfillment of job duties must be repeated(at least repeated within a year, counting from the previous violation). For the first, even gross, violation on this basis, it is impossible to dismiss;

2) dismissal is possible only for violation or non-fulfillment of job duties, that is, the duties assigned to the employee by legislation or an employment contract (violation of the internal labor regulations, job descriptions, orders of the manager, technical rules and instructions, etc.).

Such violations include, in particular:

Being late for work or leaving work prematurely, being in the wrong place for no good reason;

Refusal, without a valid reason, from a temporary transfer to another job, when the transfer does not require the consent of the employee;

Refusal or evasion without a valid reason from undergoing a medical examination (mandatory for some categories of workers), refusal to undergo training in occupational safety and health rules during working hours;

Failure to comply with legal orders and orders of the employer;

Refusal to perform work that is part of the employee's job responsibilities.

Refusal to perform work that is not part of the employee's responsibilities should not be considered violations of labor discipline; refusal to comply with illegal orders of the employer. Failure to perform or improper performance of labor duties may cause dismissal if it is admitted without a valid reason. It is impossible, for example, to dismiss an employee if he refused to transfer in emergency circumstances to work that he cannot perform for health reasons, or from transfer to work related to material responsibility, motivating his refusal by the lack of necessary knowledge or experience in working with values;

3) non-fulfillment of labor duties must take place through the fault of the employee, that is, it must be admitted intentionally or through negligence (negligence). Intent assumes that the employee knew that he was committing a violation of discipline or improper performance of work duties, but was indifferent to this. Negligence (negligence) assumes that the employee did not know that he was committing a violation, but should have known it. By negligence (negligence) are violations of professional duties caused, for example, by ignorance of the law, instructions, rules, technological processes that the employee as a professional should have known. Violations of labor protection, safety, fire safety rules are qualified as committed guilty if the employee was familiarized with them by the employer in advance.

If the employee is not guilty of the violation committed, the termination of the employment contract on the basis under consideration cannot follow. Therefore, the employer must always establish the circumstances of the violation committed and give it a correct legal assessment; in this case, it is imperative to require a written explanation of the employee about the reasons and circumstances of the violation;

4) dismissal under paragraph 5 of Art. 81 of the Labor Code should be preceded by the application of a disciplinary sanction for a previously committed offense, provided for by Art. 192 of the Labor Code, imposed as prescribed by law. okay. The disciplinary sanction is valid for a year from the date of its imposition; lost the force of the penalty in attention is not accepted.

Dismissal on this basis is a disciplinary measure (Article 192 of the Labor Code), therefore, it must be carried out in the manner and within the time limits established for the imposition of disciplinary sanctions (Article 193 of the Labor Code). In this case, the severity of the offense, the circumstances of its commission, the personality of the employee and other factors should be taken into account, since dismissal should be used as an extreme measure of influence on the employee. To protect employees from illegal dismissals, termination of an employment contract with a trade union member on this basis requires taking into account the reasoned opinion of the elected trade union body.

Internal regulations are approved at each enterprise. This document is considered a kind of instruction for employees, where all the features of the work procedure are spelled out - from the number of working hours to the procedure for calculating bonuses or disciplinary sanctions. Often workers break these rules. What is the threat of non-observance of the labor regulations for employees and are the actions of the employer lawful in cases of fixing violations?

What is labor discipline?

Discipline of work is a set of rules developed by the company in order to optimize the workflow. It is based on the responsibilities of each employee specified in the legislation.

Article 21 of the Labor Code of the Russian Federation "Basic rights and obligations of an employee:

“The employee is obliged:

• conscientiously fulfill his labor duties assigned to him by the employment contract;
• comply with the internal labor regulations;
• observe labor discipline;
• comply with established labor standards;
• comply with labor protection and labor safety requirements;
• take good care of the property of the employer (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) and other employees;
• immediately inform the employer or direct supervisor about a situation that poses a threat to the life and health of people, the safety of the employer's property (including the property of third parties held by the employer, if the employer is responsible for the safety of this property) ”.

In addition to the basic requirements, the labor discipline rules may indicate other duties of employees related to the specifics of the work of each organization. These include: compliance with corporate ethics, keeping trade secrets, violation of chain of command, etc. In the event of a one-time violation of the order, an employee may be subject to the disciplinary sanction provided by law. Its appearance depends on the severity of the offense. The main violations of labor discipline include:

• non-observance of labor protection rules resulting in an industrial accident;
• absenteeism or systematic tardiness;
• showing up at work in a state of intoxication;
• immoral acts;
• theft work or personal property of employees;
• deliberate non-fulfillment of duties or their fulfillment not in full;
• forgery of legal documents;
• ignoring orders the head.

In private enterprises, the issue of choosing a disciplinary sanction is decided directly by the manager. Punishment is considered a leader's right, but not an obligation. Therefore, the employer independently decides on the advisability of imposing a disciplinary sanction. Systematic violation of labor discipline is considered as gross non-compliance with the rules and provides for more severe penalties, up to and including dismissal of the employee.

Types of disciplinary sanctions and their application

Disciplinary sanctions are aimed at improving the quality and organization of work. On the basis of an employment contract, employees are obliged to strictly comply with all instructions, since in case of violation of labor discipline in accordance with the Labor Code of the Russian Federation, the employee may be subject to punishment regulated by law.

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

• comment;
• dismissal on appropriate grounds ”.

An offense committed by only through the fault of the employee... The employer is obliged to require compliance with all the rules only if the company provides all the conditions for this. at the same time, each employee must be familiar with the work schedule, labor protection rules and his official duties, which is confirmed by his personal signature.

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

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

• repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary penalty ”.

Article 192 of the Labor Code of the Russian Federation. Disciplinary action

“Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraphs 5, 6, 9 or 10 of part one of Article 81, paragraph 1 of Article 336 or Article 348.11 of this Code, as well as paragraph 7, 7.1 or 8 of part one of Article 81 of this Code in cases where the guilty actions giving grounds for loss of trust, or, accordingly, an immoral misconduct were committed by an employee at the place of work and in connection with the performance of his job duties.

When imposing a disciplinary sanction, the gravity of the offense and the circumstances under which it was committed must be taken into account. ”

Disciplinary punishment can be issued on the basis of a memo... If the employer considers this an insufficient reason, then he can initiate disciplinary proceedings with the participation of the labor collective. The result of the meeting of the commission will be an act with a decision on the type of disciplinary punishment.

Examples of violation of labor discipline

Practice knows many examples of violation of labor discipline. Most of them relate to non-rude misconduct and are often limited to oral remarks.

For example, employee Ivanov. A.A. violated the work schedule, showing up for work an hour later than the set time without a valid reason. In this case, the employer may limit himself to an oral warning, which is issued in the form disciplinary act... With systematic delays, Ivanov A.A. can be reprimanded however, the law does not allow for a reprimand immediately after the first offense.

For example, the failure to fulfill his official duties by the head of the warehouse, Petrov V.V., can lead to a reprimand, which entailed financial losses for the enterprise in the form of a failure to sign an agreement with suppliers. An employee can be rendered usual or severe reprimand(at the discretion of the employer).

A one-time violation that entails dismissal may be the appearance of an employee at the workplace into a state of intoxication, theft of official property, or actions that provoked an accident or industrial accident.

Any decision on disciplinary action can be challenged by the employee in court. Then the assistance of a professional lawyer competent in matters of labor legislation of the Russian Federation will be relevant.

Dismissal of an employee for repeated failure to perform labor duties (clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation): an approximate step-by-step procedure

Dismissal for repeated non-fulfillment of labor obligations:

If the employee refuses to familiarize himself with the order to terminate the employment contract, in this case, it is necessary to draw up an act (part 6 of article 193 of the Labor Code of the Russian Federation). The act is registered in accordance with the procedure established by the employer in the relevant registration log.

10. Execution of a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).

11. Settlement with the employee.

Upon termination of the employment contract, the payment of all amounts due to the employee from the employer is made on the day of the employee's dismissal. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissal employee submits a payment request. In the event of a dispute about the amount due to the employee upon dismissal, the employer is obliged to pay the amount not contested by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).

The worker is dismissed either of his own free will or at the initiative of the employer. The manager can dismiss the worker only if there are grounds listed in the Labor Code of the Russian Federation. Repeated failure to perform labor duties is one of such grounds.

In what cases can a worker be dismissed?

The specifics of dismissal for repeated non-performance of TO are set out in paragraph 5 of part 5 of article 81 of the Labor Code of the Russian Federation. Termination of an employment contract with an employee is possible only if three conditions are met:

1. A violation of labor discipline has been proven.
2. At the time of the misconduct, the employee already has a disciplinary action that has not expired. This includes, according to Article 192 of the Labor Code of the Russian Federation, a reprimand and a remark. If the worker does not have a penalty, the dismissal will be considered unlawful, since there is no fact of repeated misconduct.
3. The worker did not have a valid reason, which entailed non-performance of the TO. The Labor Code of the Russian Federation does not provide valid reasons. Their list is determined based on the practice and wishes of the employer.

The grounds for termination of the employment contract are listed in paragraph 35 of the Plenum resolution of March 17, 2004. These include:

• Absence from the workplace for less than 4 hours. If the worker has not been for more than 4 hours, his dismissal is made under another article -.
• Refusal to work after the employer has approved the act on changing labor standards. It must be said that the employee can refuse to change the terms of the employment contract. For this dismissal he is not threatened. It is exclusively about changing labor standards.
• Ignoring the conditions of admission to work. For example, it can be a refusal from a medical examination, from vocational training and exams.

FOR YOUR INFORMATION! The last point should be discussed in more detail. An employee does not have the right to refuse both periodic and daily medical examination, if its need is specified in the law. The obligation to familiarize with the labor protection rules is established by Article 225 of the Labor Code of the Russian Federation.

Good reasons for default

As mentioned earlier, the law does not say anything about specific valid reasons. Their list is determined on the basis of practice, including judicial. If the employer does not take into account the existing good reason, the employee can appeal his dismissal in court. Consider the valid reasons formed by judicial practice:

• Getting into an accident.
• Side job due to the fact that the employer is delaying wages.
• Summons of the employee to the court.
• The fulfillment of public or state duties by workers.
• Blood donation (if the employee has provided the relevant certificate).
• The manager did not notify the employee about the change in labor standards in the prescribed manner (2 months in advance).
• The employer did not create conditions for passing a medical examination or training in occupational safety standards.

ATTENTION! What if the employee had a valid reason for not performing the maintenance, but the employer did not take it into account and made the dismissal? You should go to court. In your claim, it makes sense to refer to a court decision in a similar case.

The procedure for dismissal in connection with non-performance of labor duties

Dismissal must be carried out in accordance with the given order. If the employer ignores this procedure, the employee can also challenge the dismissal. Let's consider the main stages of the procedure:

1. Fixing the grounds for dismissal. It involves control over labor discipline with the subsequent fixation of the violation in writing. This stage is regulated by Article 81 of the Labor Code of the Russian Federation.
2. Confirmation of the legality of the dismissal. An explanation should be obtained from the employee regarding the fact of default. At this stage, an already existing disciplinary sanction is identified, the validity of which has not passed. The possibility of executing the dismissal is being checked (a number of employees cannot be dismissed).
3. Documentary registration of termination of the employment contract. The manager issues a dismissal order. A calculation note is also being published. The employee is sent a notice of dismissal. A corresponding entry is made in the work book.
4. Calculation. The employer must pay the employee a salary for the period worked, compensation for unused vacation.
5. Delivery of documents. On the day of dismissal, the employee must receive a work book and other documents. This need is established by article 84.1 of the Labor Code of the Russian Federation.

If the employer does not give the employee a salary and documents, the latter can go to court to restore his rights.

Drawing up an explanatory note

The employer must receive an explanatory note from the employee before dismissal. It indicates the reasons for which there was a failure to perform labor duties. In the future, the employer, on the basis of an explanatory note, is obliged:

• examine the explanations provided;
• assess the severity of the employee's guilt;
• examine the situation preceding the violation.

ATTENTION! The employee is given 2 days to draw up an explanatory note.

The manager is also required to take into account the employee's previous behavior. The employee can refuse to draw up an explanatory note. This does not relieve the employee of responsibility. In this case, the employer must draw up an act. It states:

• The fact of contacting an employee in order to obtain an explanatory note.
• The fact of refusal to draw up a document.

The document must be signed by a number of key employees: deputy director, secretary, lawyer.

Making an entry in the work book

First you need to put down the date of dismissal. Then a record of the following form is put:

“Dismissed due to repeated failure to fulfill his job duties without good reason on the basis of paragraph 5 of Article 81 of the Labor Code of the Russian Federation.”

In the last column, you need to refer to the date and number of the order.

Which employees shouldn't be fired?

Not all workers can be fired at the initiative of the employer. This guarantee is provided to such categories of employees as:

• Pregnant women.
• Employees on vacation.
• Employees in a state of temporary incapacity for work.
• Women with a child under 3 years old.
• Single mothers with disabled minor children.
• Single mothers with children under the age of 14.
• A parent who is recognized as the sole breadwinner of a disabled minor child.

The only situation in which these categories of workers can be fired is the liquidation of the company.

What should an employee who was fired illegally do?

If an employee is unlawfully dismissed, he must go to court. The content of the statement of claim is determined depending on the situation. It may mention the presence of valid reasons for non-fulfillment of labor duties, the fact of incorrect registration of dismissal. The employee can also prove in court the absence of the fact of repeated violations of labor standards. It is recommended to draw up a statement of claim with the help of a lawyer.

When can an employer's decision be challenged?

Judicial practice shows that an employee can recover from work in the presence of the following violations:

• Incorrect execution of the order.
• Disproportionate violation and punishment.
• No applicable disciplinary action.
• Written explanations of the employee are not taken into account.

If violations are found, the employee is reinstated in his previous position.