Sofya Povzikova, head of HR administration at Coleman Services, continues to discuss the topic of dismissals initiated by the employer. Today we will focus on layoffs associated with repeated failure to perform official duties by employees.

The specified basis is established by paragraph 5 of Article 81 of the Labor Code of the Russian Federation, but it must be used by thoroughly preparing personnel documentation on the one hand, and on the other - having a margin of time, since on this basis, as a rule, it takes at least a month.

What is meant by non-performance or poor-quality performance of official duties?

Failure to comply with labor duties is a violation of the requirements of labor legislation, the functions specified in the employment contract, local regulations in force with the employer: technical regulations, job descriptions, orders of the organization's management, technical rules for the preparation of documentation or the use of equipment, labor protection and safety requirements, etc. .NS.

Example: an employee works in a call center and his job description states the obligation to “make 40 phone calls per work shift”. If an employee does not fulfill the specified norm during the day, then this indicates poor performance of official duties. If during the day the employee, for some reason, did not make a single call at all (he invented a job for himself or found reasons to shirk from work), then this is a failure to fulfill his duties.

As can be seen from the example, one of the most important documents that establish requirements for the quality of job responsibilities is another document that specifies the labor function of an employee.

The job description is not a mandatory local normative act, but its presence and competent wording help the employee, his immediate supervisor and HR specialists to determine the quality of the employee's work in controversial or conflict situations.

Very often, when drawing up a job description, streamlined wording is used: "make calls to customers" or "register customer orders." Such vague responsibilities are not specific, which means that some other document is needed that establishes the criteria for assessing the quality of work, and the employee must be familiarized with it under the signature. Otherwise, the actions of the employer can be appealed, indicating that the calls to customers have been made, but the employee was not informed that exactly 40 calls were needed.

What is meant by “repeated non-performance”?

In practice, very often there are cases when managers complain to HR specialists about the quality of work of line personnel. However, also often, managers refuse to document the revealed violations: a lot of documents need to be drawn up, and, as always, there is not enough time. The HR specialist must understand that oral complaints from a manager should not be considered as failure to fulfill official duties. Therefore, “repeated failure to comply” is a series of documented disciplinary sanctions for various violations of different job responsibilities.

It is impossible to impose a disciplinary sanction on the same violation, otherwise two penalties will be applied to the employee for one offense, which is unlawful (part 5 of article 193 of the Labor Code of the Russian Federation).

Let's return to our example: an employee may receive the first disciplinary sanction (if there is documentary registration) for poor-quality performance of official duties, the second, for example, for being late for work.

In 2004, the Plenum of the Supreme Court of the Russian Federation (clause 33 of Resolution No. 2 of March 17, 2004) ruled that in order for dismissal on the indicated grounds to be legal and justified, two conditions must be met simultaneously:

an employee does not perform work duties without good reason;

the employee commits a violation again, that is, he already has at least one unreleased or outstanding disciplinary sanction in the form of a remark or reprimand.

What documents to issue in order to declare a disciplinary action against an employee?

So, the employee did not work properly and made only 10 calls (instead of 40), and his manager requires the HR specialist to announce to him. We considered in detail the actions of a personnel officer in the execution of a disciplinary sanction in the article "Loss of trust".

Let's repeat some points:

1. It is necessary to explain to the immediate supervisor that he must draw up a memo addressed to the head of the organization (since it is this person who, in accordance with the Charter of the organization, is authorized to be an employer). The memo should include:

• Full name of the employee;
• date and time of the violation. If a violation is detected after the end of the working day, this should also be indicated.
• details of the violation itself and the detection of the violation
• the manager's proposals on measures of influence on the employee.

An indicative text of a memo for our example:

“On April 13, 2017, a call center specialist (full name) made 10 phone calls during the working shift from 9.00 to 18.00, in violation of the requirements of the job description. This fact became known to me in the process of summing up the results of the working day. I propose to give (full name) a reprimand. "

1. It is necessary to explain to the immediate supervisor that a reprimand can only be pronounced if there is a written explanation from the employee about the reasons for the failure to fulfill his job duties. In practice, there are two mechanisms for obtaining explanations: written (when the employee is given a Request for Explanations) and oral (when the manager verbally demands an explanation from the employee). I cannot advise fellow personnel officers the second way: if an employee appeals against the employer's actions, then without an appropriate document it will be very difficult to prove compliance with the requirements of paragraph 1 of Article 193 of the Labor Code of the Russian Federation.

The requirement to provide explanations, as a rule, is prepared by HR specialists and issued to the employee, necessarily fixing the time of issue of the document. The request is issued to the employee against signature. At the request of the employee, he can be given a copy of the Requirement.

1. After two working days, the employee must provide a written explanation. If an explanation is not provided, it is necessary to draw up an Act of Refusal to Provide Explanations. The act is announced to the employee in the presence of spirit witnesses. The employee can sign a sign on familiarization with the Act, or he can refuse to familiarize himself with it. In this case, the Act is read out to the employee.
2. The two received documents that fix the violation are submitted for consideration to the head of the organization (or another authorized person) for making a decision. The manager, taking into account the available facts, can decide on the recovery or on the absence of grounds for it, he can mitigate the punishment or increase it. The leader reflects his decision in a resolution, which he writes on a memo.
3. Based on the decision of the head of the organization, the HR specialist prepares an Order on the imposition of a disciplinary sanction on the employee.

The procedure for HR specialists may vary depending on the traditions of the organization, but two primary documents are required, since are the starting points for calculating deadlines.

Since we are talking about repeated violations, this procedure must be performed at least one more time.

There are two disciplinary sanctions. What's next?

So, a HR specialist has two orders for the imposition of disciplinary sanctions, as well as two sets of justifications for them. The orders are signed by the employee and the employer. Acts of refusal to familiarize with documents were prepared and signed by witnesses.

In the event of the next violation, a third set of evidentiary documents is prepared and submitted for decision to the head of the organization. If the decision of the head is dismissal, then it is necessary to prepare a dismissal order in the unified form T-8, or in the form established in the organization. If the order cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it under the signature, then a corresponding entry is made directly on the order (Article 81, Clause 5 of the Labor Code of the Russian Federation).

Thus, the preparation of dismissal, due to repeated failure to perform official duties by employees, requires:

The presence of a job description (or detailed job descriptions in an employment contract)

Willingness to draw up a lot of documents quickly and accurately.

Time, because dismissal due to repeated failure to perform official duties by an employee takes about a month

Question 29. Termination of an employment contract for repeated non-performance by an employee without valid reasons of labor duties

Clause 5 of Art. 81 of the Labor Code provides for the possibility of dismissing an employee for repeated non-performance without good reason of labor duties, if he has a disciplinary sanction. Dismissal requires a combination of several conditions:
- non-fulfillment of labor duties must be repeated (at least repeated during the year, counting from the previous violation). For the first, even gross, violation on this basis, it is impossible to dismiss;
- dismissal is possible only for violation or non-fulfillment of labor duties, that is, duties assigned to the employee by legislation or an employment contract (violation of the internal labor regulations, job descriptions, orders of the head, technical rules and instructions, etc.).
Such violations include, in particular:
- being late for work or leaving work prematurely, being in the wrong place without 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 employees), 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; non-fulfillment of labor duties must take place through the fault of the employee, that is, it must be committed 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; dismissal under paragraph 5 of Art. 81 of the Labor Code should be preceded by the application for a previously committed misconduct of a disciplinary penalty provided for in 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; invalidated penalties are not taken into account.
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 penalties (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.

Disputes about dismissal in the event of repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary penalty (clause 5 of part 1 of article 81 of the Labor Code of the Russian Federation)

Dismissal under clause 5 of h. 1 of Art. 81 of the Labor Code of the Russian Federation is possible due to repeated non-performance by the employee without valid reasons of labor duties, i.e. it is allowed only if he has a disciplinary penalty, which has not been lifted and not extinguished, and again committed a disciplinary offense.

The list of disciplinary sanctions is established by law. Article 192 of the Labor Code of the Russian Federation provides for the following types of disciplinary sanctions: reprimand, reprimand, dismissal on appropriate grounds. This list is comprehensive. This means that it is illegal to apply any other type of penalty.

The disciplinary sanction is valid for one year from the date of its application. After this period, it automatically loses its legal force and can no longer form a sign of repetition necessary to terminate an employment contract under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. No order or order from the employer to lift the disciplinary sanction due to the expiration of the one-year period is not required. The order (instruction) is required without fail if the employer decides to early withdraw the penalty from the employee.

Thus, when deciding on the dismissal of an employee under clause 5, h. 1, Art. 81 of the Labor Code of the Russian Federation, disciplinary sanctions withdrawn ahead of schedule or invalidated after one year from the date of their application are not taken into account. In addition, for the dismissal of an employee for repeated failure to perform work duties without good reason, it does not matter what disciplinary sanction: a reprimand or a reprimand, the employee has at the time of committing another disciplinary offense. The main thing is that it is not removed and does not lose its force. Penalties imposed on an employee at the place of his previous work are also not taken into account when deciding whether to dismiss on the specified basis.

For disciplinary offense characterized by the failure of the employee to fulfill his labor duties provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, internal labor regulations, statutes and regulations on discipline, job descriptions, as well as arising from the concluded labor contract.

The employer should remember that according to Part 3 of Art. 68 of the Labor Code of the Russian Federation, when applying for a job, he must familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement.

The job description, which enshrines the rights and obligations of the employee, the latter must be familiarized with before signing the employment contract.

When a reference to a job description is included in the text of an employment contract, it is also necessary to indicate all the details of the local regulatory act that approved this instruction (number, date of adoption of the local regulatory act, the person who signed the specified act).

An employment contract was concluded with Ivanov, who was entering the position of personnel inspector, where there was a reference to the job description. However, her details were not indicated in the employment contract. When hiring, Ivanov was not familiarized with the job description of the HR inspector on receipt.

In the process of work, a dispute arose between the management of the organization and Ivanov regarding his duty to draw up time sheets, since when he was hired he was not informed about the need to fulfill this duty.

In this regard, the employer dismissed Ivanov for repeated failure to fulfill his job duties without good reason under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The employee went to court with a claim for reinstatement at work, recovery of wages for the time of forced absenteeism and compensation for moral damage, considering the dismissal illegal, since he was not familiar with the job description when hiring.

After listening to the views of the parties, examining the case materials and the evidence presented, the court decided to reinstate Ivanov at work, since the obligation to draw up time sheets was not provided for by the employment contract, and the employee was not familiarized with the job description on receipt.

In accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers. The employer could not prove the fact that when hiring Ivanov was aware of the duty of the HR inspector to draw up time sheets, the employer could not, since the job description and the registration log did not contain the plaintiff's signature on familiarization.

Failure by an employee to fulfill his job duties without valid reasons is a violation of labor discipline (violation of the internal labor regulations, job descriptions, regulations, orders of the head of the organization, technical rules, etc.).

It was suggested that the dismissal of an employee under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation is allowed subject to the following mandatory conditions:

• a) the failure to perform labor duties has already taken place, and a disciplinary sanction has been applied to the employee, which has not been lifted or extinguished;
• b) labor duties were not performed by him without good reason.

More correct is the position of A.I. Stavtseva, who singled out the following conditions for the legality of dismissal on this basis:

• - non-fulfillment or improper fulfillment of labor duties assigned to the employee by an employment contract or internal labor regulations. It is impossible to fire an employee for misconduct that is not related to his work activities. Refusal to perform work that is not part of the employee's job responsibilities (except in cases of mandatory translation for employees), or to fulfill a public assignment is not a violation of labor discipline;
• - the presence of guilt in the actions of employees in the form of intent or negligence. Failure to perform work duties for a good reason does not give grounds for dismissal;
• - the systematic nature of the offense, i.e. a disciplinary offense is not the first time, for which a disciplinary measure was already applied to the employee earlier (within the last year);
• - committing a specific guilty offense before dismissal, from the moment of which more than a month has passed.

Attention is drawn to these circumstances in the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004. Clause 33 of this resolution states: the employer has the right to terminate the employment contract under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his job duties without good reason, it was not removed and canceled.

Application of a new disciplinary sanction to an employee, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is also permissible if the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

Suppose an employee, in violation of his job duties, did not go on a business trip. In this case, the employer has the right to apply a disciplinary sanction (for example, a reprimand) to him, except for cases when the employee has the right to refuse a business trip (Articles 259, 264 and 268 of the Labor Code of the Russian Federation). If, despite the disciplinary sanction imposed, the employee continues to refuse to travel on a business trip without good reason, the employer has the right to apply a new penalty to him, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Similarly, the employer may act in the event that the employee refuses without good reason, for example, to undergo training and testing of knowledge and skills in the field of labor protection or periodic medical examination, if this is a prerequisite for admission to work.

Unfortunately, the Labor Code of the Russian Federation does not disclose the concept of "good reason". Therefore, in each individual case, the employer decides this issue based on specific circumstances.

The employer is obliged to prove the correctness of the imposition of all disciplinary sanctions, with which he justified the order of dismissal, and the court should check their legality.

Within the meaning of the term "repeated" for the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is enough to commit two disciplinary offenses, for the first of which the employee has already been punished.

In this regard, one cannot agree with the opinion of A.K. Gavrilina that, in contrast to the previously applied grounds for dismissal, for systematic failure by an employee without good reason to fulfill the obligations imposed on him by an employment contract or internal labor regulations, if the employee was previously disciplinary or social measures were applied (clause 3 of Art. 33 of the Labor Code of the Russian Federation), from the grounds for dismissal provided for in clause 5 of Art. 81 of the Labor Code of the Russian Federation, it is impossible to determine that initially for an admitted violation of labor discipline, an employee must be disciplined and then again commit a violation of labor discipline, for which he will be disciplined in the form of dismissal.

Back in 1984, the Supreme Court of the USSR, and before that the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions in 1983, explained that systematically violating labor discipline is considered to be employees who have disciplinary or social penalties for violating labor discipline and have violated it again. However, some scholars and practitioners considered this position controversial, since earlier judicial practice interpreted the concept of "systematic violation" as a person committing at least three disciplinary offenses.

Clause 35 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 also sets out other requirements for the courts. So, when considering the case of reinstatement at work of a person dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, or on challenging a disciplinary sanction, the courts must take into account that failure by an employee without good reason to fulfill his job duties is non-performance or improper performance through the fault of the employee of the labor duties assigned to him (violation of legal requirements, obligations under an employment contract, internal labor regulations, official instructions, regulations, orders of the employer, technical rules, etc.).

The Plenum of the Supreme Court of the Russian Federation, in particular, refers to these violations:

• - absence of an employee from work or workplace without good reason;
• - the employee's refusal to perform his job duties without good reason due to a change in the established procedure in labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function specified in this contract, to comply with the employer's internal labor regulations ;
• - refusal or rejection without good reason from a medical examination of workers of certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety and operating rules, if this is a prerequisite for admission to work.

In addition, the Plenum of the Supreme Court of the Russian Federation draws attention to the fact that when resolving labor disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation) , in the case when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the need to conclude an agreement on full material liability arose after the conclusion of an employment contract with an employee and is due to the fact that in connection with a change in the current legislation, the position he occupies or the work performed has been referred to the list of positions and jobs replaced or performed by employees with whom the employer can conclude written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer by virtue of Part 3 of Art. 74 of the Labor Code of the Russian Federation is obliged to offer him another job, and in its absence or the employee's refusal from the job offered to him, the employment contract is terminated with him in accordance with paragraph 7 of Part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to continue work in connection with a change in the terms of the employment contract determined by the parties) (clause 36 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

In cases of reinstatement at work of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the defendant is obliged to provide evidence proving that:

• 1) the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract;
• 2) the employer has complied with the provisions of parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation, the time limits for the application of a disciplinary sanction.

It should be borne in mind that:

• 1) the one-month period for imposing a disciplinary sanction must be calculated from the day the offense was discovered;
• 2) the day of the discovery of the misconduct, from which the period of one month begins, is the day when the person to whom the employee is subordinate at work (service) becomes aware of the misdemeanor, regardless of whether he is endowed with the right to impose disciplinary sanctions;
• 3) the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation) is not counted in a month for the application of a disciplinary sanction; the absence of an employee at work for other reasons, including in connection with the use of rest days (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period;
• 4) all holidays provided by the employer in accordance with the current legislation, including annual (main and additional) holidays, holidays in connection with studies in educational institutions, unpaid leave should be referred to the vacation that interrupts the monthly period.

The employer, when applying clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, one must not forget that before applying a disciplinary sanction, he must request a written explanation from the employee. If after two working days the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee has the right to provide such an explanation, and the employer is obliged to request it. One should agree with the statement of A.K. Gavrilina that the employer has the right to assess the employee's labor activity, wrapping it in the form of an order, without applying disciplinary measures to it. In this case, the requirement to obtain an explanation from the employee is optional. Therefore, the absence of such an explanation cannot serve as a sufficient basis for recognizing the employer's order as unlawful. However, the legal consequences in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the publication of such an order does not have.

An example from judicial practice. M. applied to the court with a claim against LLC ZhBK-2MS for reinstatement at work, collection of wages for the time of forced absence, compensation for moral damage and collection of expenses for payment of the representative's services in the amount of 3 thousand rubles. In the statement, the plaintiff referred to the fact that by order of the General Director of LLC "ZhBK-2MS" X. dated July 18, 2002, he was dismissed from the post of head of the Apastovsky quarry under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering the dismissal unlawful, the plaintiff indicated that he did not commit any violations, he was not familiar with the orders of the director of July 3, 2002 and July 4, 2002 on the imposition of disciplinary sanctions on him in the form of a remark and a reprimand did not demand, orders were sent to him by mail; On July 17, 2002, he was at the plant in Kazan to resolve issues within his immediate production responsibilities. According to the plaintiff, the real reason for the dismissal was his criticism of the general director of OOO ZhBK-2MS X.

In his supervisory appeal, M. asked to cancel the court decisions and make a new decision to reinstate him as head of the Apastovsky quarry.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation on August 15, 2003 canceled the court decisions, and sent the case for a new consideration, indicating the following.

In accordance with Art. 387 of the Labor Code of the Russian Federation, the grounds for canceling or changing court decisions by way of supervision are significant violations of the norms of substantive or procedural law.

By virtue of Art. 60 and 72 of the Labor Code of the Russian Federation, the employer does not have the right to demand from the employee to perform work not stipulated by the employment contract, except as provided for by the Labor Code of the Russian Federation and other federal laws, as well as transfer the employee to another permanent job without his written consent.

Transfer to another permanent job in the same organization, requiring the written consent of the employee, by virtue of Art. 72 of the Labor Code of the Russian Federation should be considered a change in the labor function or other conditions of the labor contract determined by the parties (Article 57 of the Labor Code of the Russian Federation). The same consent must be obtained from the employee in case of transfer to a permanent job in another organization or in another locality together with the organization.

If in the employment contract the employee's place of work was determined with an indication of a specific structural unit, then it should be assumed that the transfer of an employee to another structural unit of the organization is possible only with his written consent, since in this case this entails a change in the essential condition of the employment contract ( Part 2 of Art.57 of the Labor Code of the Russian Federation).

As can be seen from M.'s explanations, after receiving a telephone message dated July 2, 2002 about sending the worker to Kazan to repair the bulldozer, he left the village. Apastovo together with the bulldozer driver G.; the latter, having confirmed the breakdown of the bulldozer, at the same time refused to repair the bulldozer, referring to the fact that this was not part of his duties, but a written order for the worker to travel from the village. Apastovo in Kazan (the distance between them is 150 km) and there was no payment for travel expenses. Other machine operators subordinate to him categorically refused to go to Kazan to repair the bulldozer (which he confirmed in the court hearing), arguing that they got a job in the quarry with. Apastovo, Kazan has its own transport workshop, workers and all the necessary equipment for the repair of bulldozers.

Thus, the court did not take into account that M. had no legal basis for sending subordinate workers to Kazan to repair the bulldozer and, due to this circumstance, could not comply with the relevant instructions of the head of the organization.

Consequently, the court should have taken into account that the orders to impose disciplinary sanctions on M. on 3 and 4 July 2002 were issued without taking into account the requirements of Art. 60 and 72 of the Labor Code of the Russian Federation.

When resolving disputes between persons dismissed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to perform his labor duties without good reason, it has not been withdrawn and not redeemed.

In a new consideration of the case, the employer is obliged to prove the correctness of the imposition of all disciplinary sanctions, with which he justified the order of dismissal.

The main reason for the appeal to the court of former employees, to whom the dismissal was applied as a disciplinary measure, is the conviction that there was no disciplinary offense in their actions (inaction). When considering such disputes, the court determines the legality of the employee's behavior and evaluates the legality and validity of the employer's actions when applying the chosen disciplinary measure.

Application specified in clause 5 h. 1 of Art. 81 of the Labor Code of the Russian Federation of the grounds for dismissal shows that not only the employer, but in some cases the court does not always interpret this measure correctly.

Thus, the director of the neuropsychiatric dispensary announced disciplinary sanctions to P.'s driver for several violations of labor discipline: August 8, 2006 - a reprimand for premature leaving work on August 7, 2006, August 14, 2006 - a reprimand for being late for work on August 13, 2006 ., August 20, 2006 - a reprimand for using a company car on August 18, 2006 for personal purposes. By order of August 22, 2006 P. was dismissed in accordance with paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Opposing the termination of the employment contract, P. applied to the court with a statement of claim for reinstatement at work. The court ruled that P.'s dismissal was lawful, since there had been repeated failure to fulfill his job duties and the employee was therefore brought to disciplinary responsibility.

Thus, both the employer and the court recognized the possible application of the grounds for dismissal, provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for a set of previously committed offenses, for the commission of each of which the employer has already applied a disciplinary sanction to the employee in the form of a remark or reprimand.

At the same time, within the meaning of the specified norm of labor legislation, to terminate an employment contract, one violation of labor obligations, for which a disciplinary penalty has been imposed, is sufficient for the employer to exercise his right to dismiss the employee, however, dismissal is possible only for the employee committing another violation of labor discipline.

When calculating or summing up disciplinary sanctions, the employer must also take into account the fact that neither non-payment of bonuses, nor the issuance of censure, nor other types of disciplinary action not provided for by the Labor Code of the Russian Federation, other federal laws, regulations and statutes on discipline, does not apply to disciplinary action. Consequently, they should not be taken into account when deciding on the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. For example, non-payment of a bonus to an employee cannot be regarded as the first penalty, and if a disciplinary offense is committed within a year from the date of non-payment of the bonus, apply paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

In addition, it is worth noting that the labor legislation applies in full to an employee who has submitted an application for dismissal of his own free will, during the period of such a warning, without any restrictions. Labor relations in this case are terminated only after the expiry of the notice of dismissal. Therefore, despite the employee's statement of dismissal of his own free will, he may be dismissed at the initiative of the employer for repeated failure to perform work duties without good reason, if the violation that was the reason for the dismissal actually took place and could be the basis for terminating the employment contract.

The actions of an employee that are not related to his work duties should not be considered as a disciplinary offense. Consequently, it is impossible to dismiss an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for example, for improper behavior in everyday life.

Employers should remember that when considering labor disputes about the reinstatement of persons who were dismissed in connection with repeated non-performance of labor duties without good reason, if these persons have a disciplinary sanction, in subject of evidence includes the following circumstances:

• - what was the violation that was the reason for the dismissal;
• - whether the misconduct underlying the dismissal order was expressed in the employee's refusal to continue working due to the change in the terms of the employment contract determined by the parties (and the employee does not agree to continue working in the new conditions);
• - repeated non-fulfillment of labor duties without good reason;
• - the reasons for the employee's repeated failure to fulfill his job duties, the nature of these reasons (valid or disrespectful);
• - the fault of the employee in non-performance without good reason of the labor duties assigned to him;
• - the severity of the offense, the circumstances under which it was committed, the consequences of the offense;
• - the employee's behavior preceding the misconduct, his attitude to work;
• - the application of disciplinary measures to the plaintiff earlier, the correctness of the imposition of all disciplinary sanctions on the employee, with which the employer substantiated the dismissal order, regardless of whether the plaintiff made claims to declare them unfounded;
• - compliance by the employer with the deadlines for the application of a disciplinary sanction;
• - whether the procedure for taking into account the opinions of the elected body of the primary trade union organization has been followed (in accordance with Part 2 of Art. 82, Art. 374 and 376 of the Labor Code of the Russian Federation);
• - whether the dismissal was made during the period of temporary disability of the employee or while on vacation and other circumstances.

Necessary evidence in cases of this category, which must be submitted by the defendant, are:

• 1) a copy of the order on the admission of the plaintiff to work (extract from the order);
• 2) a copy of the order to dismiss the plaintiff (extract from the order);
• 3) an employment contract, job description of the employee and other documents that make it possible to determine what duties the employee performed;
• 4) copies of orders on the application of disciplinary sanctions;
• 5) materials on the basis of which disciplinary sanctions were applied (memoranda, materials of official inspections, explanatory notes, representations, acts, etc.);
• 6) documents on the duration of the employee's work experience (work record book, etc.);
• 7) a certificate of the plaintiff's average salary.

Repeated violation of labor duties by an employee without good reason must be documented, in particular by an order on the application of a disciplinary sanction.

When considering the relevant labor disputes, it often turns out that the disciplinary sanctions were not properly formalized, and this serves as the basis for satisfying the claim and reinstating the employee at work, even if the employee committed the appropriate disciplinary offense.

The employer should also take into account the severity of the misdemeanors committed, which served as the basis for dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. There are often cases when an employer, in order to dismiss an employee on this basis, applies disciplinary sanctions against him, which clearly do not correspond to the severity of the offense (being 5 minutes late for work, leaving work 5 minutes earlier than provided for by the internal labor regulations, etc.). The court, considering such cases, reinstates the employee at the previous job.

So, M. worked as a watchman at OJSC "Eletsky Tabak". By order of the director of July 3, 2002 she was dismissed in accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering her dismissal unlawful, M. applied to the court with a statement of claim for reinstatement at work, claiming that the disciplinary sanctions applied to her were unlawful. By the decision of the Yeletsk city court M., the claim was rejected.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court, having considered M.'s cassation appeal, canceled the decision of the Yeletsk City Court and issued a new decision, which satisfied M.

The panel of judges found that on 6 March 2002 the plaintiff was disciplined for the fact that

On February 28, 2002, without the permission of the shift supervisor, she left her workplace. The court found that her absence was short-lived, as she needed to take medicine to take. Although the plaintiff's actions contained signs of a disciplinary offense (guilty failure to comply with the requirements of the job description), since she left her workplace without notifying the shift supervisor, the cassation instance, having considered M.'s disciplinary offense, assessed it as insignificant due to the fact that her absence from the workplace was short-lived (3 min.).

Formally, M.'s actions should be qualified as a disciplinary offense, but due to the nature of the offense committed, i.e. his insignificance, the judicial board for civil cases recognized the application of a disciplinary sanction in the form of a reprimand to M. as unlawful.

The second violation for which she was disciplined was the conduct of personal telephone conversations on her office phone. On the basis of the job description, approved by the director of OJSC "Eletsky Tabak", which defines the rights and obligations of the watchman, a ban on conducting personal conversations from the telephone set located at the watchman's workplace has been established.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court disagreed with the conclusion of the Yeletsk City Court on the legality of applying this disciplinary sanction to M., taking into account the reason for which M. was negotiating. Her young daughter was at home and M. was worried about her health and safety.

The reason for the dismissal was the fact that on 2 July 2002 M. left her workplace. The materials of the case established that this happened due to the need to take the medicine from the first-aid kit. The Yeletsky City Court considered the plaintiff's actions as a disciplinary offense due to the fact that she did not inform anyone of her intention to leave the post for a short time. The cassation instance agreed with the assessment of the plaintiff's behavior established by the court of first instance, but due to the insignificance of the offense, it recognized it as inappropriate to apply disciplinary sanctions to her in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation.

The panel of judges concluded that M.'s actions can formally be considered as disciplinary offenses, but due to their insignificance, the employer has no grounds for bringing M. to disciplinary action in the form of dismissal. The above example shows that when considering a labor dispute, the court took into account the gravity of the misdemeanor and the circumstances under which it was committed.

10.5.6. Disputes about dismissal in the event of a single gross violation of labor duties by an employee (clause 6 of part 1 of article 81 of the Labor Code of the Russian Federation)

A single gross violation of labor duties by an employee (regardless of the subject composition) is an offense, the qualifying signs of which are the severity of the offense and the possible onset of serious consequences.

The list of one-time gross violations of labor duties, for the commission of which labor legislation as a measure of disciplinary responsibility establishes (along with other measures specified in Article 192 of the Labor Code of the Russian Federation) the possibility of dismissing an employee, is provided for in paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. The list of single gross violations is exhaustive and is not subject to broad interpretation.

In contrast to the grounds for dismissing an employee for violation of labor duties, specified in clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, which considers the presence of repeated occurrence of it to be a qualifying feature, the basis for the dismissal of an employee under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation does not contain such a feature. In this case, one offense is sufficient.

Clause 6, part 1 of Art. 81 of the Labor Code of the Russian Federation contains five cases of a single gross violation of labor duties. The obligation to prove the fact of the employee committing one of such violations, giving rise to the dismissal of the employee under paragraph 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, is assigned to the employer.

Termination of an employment contract on the initiative of the employer can be carried out if there is guilt in the actions of the employee

Termination of an employment contract due to repeated non-performance by the employee, without good reason, of labor duties, if he has a disciplinary penalty, is governed by paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. The question arises about the number of disciplinary sanctions required for the legality of the application of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The Labor Code of the Russian Federation does not give a sufficiently complete answer to the question of the number of disciplinary sanctions required for the legality of the application of clause 5, part 1 of Art. 81 of the Labor Code of the Russian Federation.

According to the instructions of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006, “when resolving disputes between persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on these grounds, provided that a disciplinary penalty was previously applied to the employee and at the time of his repeated non-fulfillment, without good reason, it was not withdrawn and not redeemed. " Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ dated December 28, 2006. “On amendments and additions to the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004. No. 2 "On the Application by the Courts of the Russian Federation of the Labor Code of the Russian Federation" // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The procedure for the application of disciplinary sanctions is determined by Art. 193 of the Labor Code of the Russian Federation, which states: before the application of a disciplinary sanction, an explanation in writing must be requested from the employee. If, after two working days, the employee has not provided an explanation, an act is drawn up.

The employee's failure to provide an explanation is not an obstacle to the application of disciplinary action.

When using the above ground for dismissal, the defendant is under the obligation to provide evidence showing that:

1) The violation committed by the employee, which was the reason for dismissal, actually took place and could be the basis for terminating the employment contract.

2) The employer complied with the terms for the application of a disciplinary sanction provided for in parts three and four of Article 193 of the Labor Code of the Russian Federation. Gaidukova L.N. Commentary on amendments to the Labor Code of the Russian Federation - M .: Grossmedia, 2007. P. 218.

It should be borne in mind that:

1. The monthly period for imposing a disciplinary sanction must be calculated from the day the offense was discovered.

2. The day of the discovery of the misconduct, from which the expiration of the one-month period begins, shall be the day when the person to whom the employee is subordinate at work (service) becomes aware of the misdemeanor, regardless of whether he or she is entitled to impose disciplinary sanctions.

3. The monthly period for the application of a disciplinary sanction does not include the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation), the absence of an employee at the workplace according to for other reasons, including in connection with the use of days of rest (time off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the specified period.

4. Leave that interrupts within a month should include all leave provided by the employer in accordance with the current legislation, including annual (main and additional) vacations, vacations in connection with studies in educational institutions, unpaid leave.

The employer should justify the legality and validity of the previously imposed penalties. At the same time, the timing of the application of a disciplinary sanction does not matter, since, after dismissal under paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, it becomes the main part of a new disciplinary offense, which, in general, can be appealed in the manner prescribed by law. The legality and validity of a disciplinary sanction previously imposed on an employee is not verified only when there is a court decision that has entered into legal force on the legality of this sanction.

Often, after bringing an employee to disciplinary responsibility, having written a statement “to resign of his own free will,” the employee continues not to fulfill or violate his labor duties or the internal labor regulations of the organization. In these cases, the employer has the right to apply a disciplinary sanction to the employee, since the employment relationship, in this case, is terminated only after the expiry of the notice of dismissal. Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ dated December 28, 2006. “On amendments and additions to the Resolution of the Plenum of the Supreme Court 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" // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The definition of a disciplinary offense is given in Article 192 of the Labor Code of the Russian Federation, which says that a disciplinary offense is a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him.

Judicial practice details the definition of "disciplinary sanction". The Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006 states (paragraph 35) that “failure by an employee, without good reason, of his labor duties, is a failure to fulfill or improper fulfillment, through the fault of an employee, of his labor duties (violation legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, employer's orders, technical rules, etc.).

Such violations include, in particular:

1. Absence of an employee, without good reason, at work or at the workplace. Thus, in the employment contract concluded with the employee, or in the employer's local normative act (order, schedule), the specific workplace of this employee must be specified. If this is not done, then one should proceed from the fact that, according to Art. 220 of the Labor Code of the Russian Federation, a workplace is a place where an employee must be located or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

2. Refusal or evasion, without good reason, from medical examination of workers of certain professions, as well as refusal of the employee to undergo special training and exams in labor protection, safety and operating rules during working hours, whether this is a prerequisite for admission to work. Resolution of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ dated December 28, 2006. “On amendments and additions to the Resolution of the Plenum of the Supreme Court 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" // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

A.N. Keil proposes the following definition of an employment offense: "A guilty, unlawful act of the subject of an employment relationship, which consists in the failure or improper performance of the subject's obligations for an employment offense, for the commission of which he may or must be brought to legal responsibility with the application of the sanctions contained in the labor law" ... Kail A.N. New procedure and conditions for imposing disciplinary sanctions // Labor law. No. 2. 2007. S. 14-22.

As can be seen from this definition, not every failure to comply will be a disciplinary offense. As a mandatory sign of misconduct, Article 192 of the Labor Code of the Russian Federation indicates the presence of the employee's fault.

The Labor Code does not speak about the form of guilt or the types necessary to bring an employee to disciplinary responsibility, therefore, a form of guilt of any kind is sufficient to impose a penalty (including dismissal).

In addition to guilt, there are a number of points that should be guided by the employer to recognize the committed act as a disciplinary offense. Thus, the refusal of an employee to perform work in the event of a danger to his life and health or from performing heavy work or work with harmful or dangerous working conditions not provided for by the employment contract does not entail disciplinary liability. You cannot dismiss striking workers, as well as for refusing to recall from vacation, etc.

For the application of a disciplinary sanction, a written explanation must be requested from an employee in order to identify all the circumstances of the committed misconduct, as well as the degree of the employee's fault in it. In the explanation, it is advisable to get an answer to the questions:

Whether there was a violation;

What is the fault of the violation;

Circumstances of the violation, its reasons;

The employee's attitude to the violation;

The employee's attitude to further work.

Since dismissal is an extreme measure, the court, in the event that there are all formal grounds for dismissal, may decide to reinstate a person at work, if the violation committed by the employee is not so serious as to recognize leaving him at work incompatible with the interests of production. Kail A.N. New procedure and conditions for imposing disciplinary sanctions // Labor law. No. 2. 2007. S. 14-22.

The current legislation provides that for certain categories of employees a special procedure for bringing to disciplinary responsibility is established.

Thus, there are two types of disciplinary liability: general, provided for by the Labor Code of the Russian Federation, and special, which are borne by employees in accordance with federal laws, statutes and regulations on discipline.

Acts on special disciplinary liability may also provide for stricter penalties than those provided for in Article 192 of the Labor Code of the Russian Federation, as well as a special procedure for their imposition, which differs from those that employees bear with general disciplinary liability, although the measures listed are also applied. in article 192 of the Labor Code of the Russian Federation.

It is not a failure to perform labor duties without good reason, refusal to continue work in connection with a change in the terms of the employment contract determined by the parties (in this case, it can be terminated in accordance with clause 7 of article 77 of the Labor Code of the Russian Federation), the employee's refusal to comply with the employer's order to go to work before the end of the vacation.

Consider a case from judicial practice.

S. applied to the Zhigulevsk City Court with a claim against the local self-government stadium “K” for reinstatement at a part-time job, providing conditions for safe and efficient work, collecting earnings for the period of forced absence from work, compensation for moral damage.

In the period from June 11, 2010, S. was in labor relations on the terms of external part-time job with the municipal sports institution of Zhigulevsk "K" as an instructor of the methodologist. By order of December 30, 2010, she was dismissed from December 31, 2009 from her position on the basis of clause 5 of article 81 of the Labor Code of the Russian Federation for repeated non-performance by an employee without good reason of labor duties.

S. stated that she had been unlawfully and unjustly dismissed at the initiative of the employer. She did not violate the terms of the employment contract, while the defendant gave her a period of time for work that she could not combine with her main job.

The plaintiff testified that the mode of her main work was from 08.00 to 17.00. She is fond of sports - weightlifting, is the European champion among veterans, constantly expressed to the chairman of the sports committee of the city administration. Zhigulevsk desire to work. In the summer of 2010, the city administration allocated the rates of sports instructors to the defendant for conducting gratuitous classes with the population. S. confirmed that at the organizational meeting, the chairman of the sports committee brought to the attention of all those accepted that there should be at least 15 people in the group, and age does not matter. This requirement was not reflected in the documents. Her work schedule was established by an employment contract - 9 hours a week. Initially, she was given a gym "A" to conduct classes with those who wish, from 17 to 20 hours, three times a week. She made the schedule of these classes herself and brought it to the attention of the chairman of the sports committee. In fact, her place of work was MUP "A". In September 2010, S. recruited a very large group, investing her own funds, placing an advertisement about training. In mid-September, the director of MUP "A" issued an order to change the operating mode, since the gym in the previously occupied time began to be provided on a paid basis. She was allocated a period from 14 to 17 hours, while the employer did not make any changes to the documents relating to her labor activity. Her activities were audited by the employer. As a result of the inspections, violations were revealed, about which acts were drawn up. On October 30, 2010, S. explained her absence from the workplace by the fact that she had finished training 15 minutes earlier due to poor health. She also believes that the hours of classes should be taken into account as academic (45 minutes each), so she does not agree that she committed a disciplinary offense. On November 03, 2010, as a result of an inspection by the commission, an insufficient number of students in the group was found. S. S. confirmed that 5 people were engaged, but believes that this was not her fault. Since the training time was shifted by the employer, she was forced to take time off from her main job at her own expense. Due to the lack of paper, S. could not print out the lesson record. Keeping lesson-less records, according to her, is not assigned to her by any document. Its pupils are adolescents of 14-15 years old, who finish their studies at 15.00, so after changing the training time, the number of students has sharply decreased. She worked to attract children to classes. She admitted that her job description states that she must control the quantitative composition. However, she understands this in such a way that she should mark the persons attending training in the journal. She did not sign for it, since there was no pen. I disagree with all the disciplinary sanctions imposed on her. I disagree with the wording of the dismissal. The employer, in her opinion, had to establish a convenient time for her classes, to provide assistance. The equipment that it requires must comply with the requirements and GOSTs, must be manufactured in factory conditions. She had to bring some of the equipment from home. The employer had to provide her with office supplies: paper and pens.

At the hearing, after the question of the presiding judge, the plaintiff refused to continue working with the defendant on the proposed conditions - three times a week from 2 pm to 5 pm, insisted on the defendant giving her a work time convenient for her: from 6 pm to 9 pm.

Having examined the presented evidence, the court did not find grounds for full satisfaction of the claim.

In accordance with protocol No. 2 dated 06/08/2010, the general meeting of public instructors in the committee for physical culture and sports of the administration of the city of. Zhigulevsk, which was attended by the plaintiff, discussed issues, including the admission of public instructors on the following conditions: the presence in the group of at least 15 bangs involved; hourly workload of at least 9 academic hours per week - by 0.5 rate. In addition, each instructor-methodologist, on a monthly basis, when receiving a salary, must provide a package of reporting documentation, which includes: a schedule of classes per week, a main list of those involved with the personal data of students, a journal of lesson recordings.

The circumstances of labor relations set out by the parties are confirmed by the order on the admission and dismissal of the plaintiff.

In accordance with the employment contract, concluded by the LSG "K" with the plaintiff, she was accepted part-time as a sports instructor-methodologist with a working time schedule: part-time work week 9 hours a week. The place of work is not defined by the contract.

The job description of the instructor-methodologist in sports, approved by the director of ISU "K" on 05/01/2010, confirms that the duties of the instructor-methodologist include control over the quantitative composition of the sections, observance of labor discipline, planning his work, drawing up reporting documentation.

In accordance with the letter of the director of MUP "A" dated 07.09.2010. the head of the committee for physical culture and sports of the department of social. development of the city administration Zhigulevsk, in connection with the beginning of the autumn season and the attraction of trainees on a paid basis from 12.09.2010. time for weightlifting classes from 18.00 to 21.00 is not provided free of charge. S. has the opportunity to train in the gym "A" at any other convenient time for her.

From a written message to the plaintiff of the Deputy Mayor G.about. Zhigulevsk - the head of the department of social development from 09/29/2009, it follows that she was given time for classes on weekdays from 14.00 to 17.00 hours, on Saturday from 09.00 to 12.00 in room "A" at no cost.

Thus, the plaintiff, according to the court, was notified of the change in the conditions of her working hours, which she does not deny.

In the future, on the initiative of the local self-government body, inspections of the activities of both the plaintiff and other instructors were carried out, based on the results of which acts were drawn up on the violations revealed, the plaintiff was brought to disciplinary responsibility. In total, three disciplinary sanctions were applied to her by the orders of the defendant. These orders were not recognized as illegal by anyone, the plaintiff does not appeal, based on the results of consideration of the prosecutor's protest against one of the orders by the defendant - the employer, the type of disciplinary punishment was changed,

So, by order No. 64 of 02.11.2010, the plaintiff was announced a disciplinary sanction in the form of a warning on the basis of inspection reports dated 29.10.2010, 30.10.2010 for absence without good reason at the workplace.

By order No. 64/1 of 05.11.2010, the director of ISU "K" on disciplinary action was reprimanded on the basis of an inspection report dated 02.11.2010, from which it follows that at 15.20 at 15.20 the plaintiff was attended by 5 people, while while the payroll of the section is 36 people; there is no lesson recording of classes for September, it is recommended to carry out active work to attract a larger number of students to classes (at least 15 people).

By Order No. 70 of December 21, 2010, the director of ISU "K" on the basis of an act of December 8, 2009, which established that at the time of the check at 15.00 o'clock, 3 people were present in the plaintiff's classes with a payroll of 20 people, there are no required documents detailed record of classes, in the list of students there is no data from the place of study or work, in the detailed record of classes for August and October there are no personal signatures, a disciplinary sanction was announced to the plaintiff in the form of a severe reprimand.

The court has not established any violations in the imposition of these disciplinary sanctions.

The court considers it necessary to apply the norms of the Labor Code of the Russian Federation to the dispute.

According to article 60.1 of the Labor Code of the Russian Federation, an employee has the right to conclude labor contracts for performing other regular paid work with another employer in his free time from his main job (external part-time job).

Article 2 of the Labor Code of the Russian Federation states that the basic principles of legal regulation of labor relations and other relations directly related to them are recognized: freedom of labor, including the right to work, which everyone freely chooses or to which freely agrees.

At the same time, Article 15 of the Labor Code of the Russian Federation determines that labor relations are relations based on an agreement between the employee and the employer on the employee's personal performance for a fee of the labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type assigned to the employee work, the subordination of the employee to the rules of the internal labor schedule, while the employer provides the working conditions stipulated by the labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, labor contracts.

This norm corresponds to Article 56 of the Labor Code of the Russian Federation, in accordance with which an employment contract is an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations and this agreement, timely and in full pay wages to the employee, and the employee undertakes to personally perform the job function defined by this agreement, to comply with the internal labor regulations in force for this employer.

Article 21 of the Labor Code of the Russian Federation establishes the employee's right to provide him with work stipulated by the employment contract; meanwhile, the same norm imposes on the employee the obligation to conscientiously fulfill his labor duties imposed on him by the employment contract; comply with the internal labor regulations; observe labor discipline; comply with established labor standards.

Article 57 of the Labor Code of the Russian Federation establishes that the conditions for the place of work, labor function, working hours and rest time are mandatory for inclusion in an employment contract (if for a given employee it differs from the general rules in force for this employer). However, if, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in this article, then this is not the basis for recognizing the employment contract as not concluded or terminating it.

By virtue of Article 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative.

According to Article 72 of the Labor Code of the Russian Federation, changes in the terms of the employment contract determined by the parties are allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Consequently, the emergence of labor relations is based on the consent of the employee to personally carry out a specific type of work entrusted to him, the employee's submission to the rules of the internal labor schedule, and the observance of the working hours offered to him by the employer. Consequently, the current legislation does not provide for the right of the employee to demand from the employer the establishment of personally suitable working conditions for him, the working hours.

From the foregoing, and also, taking into account the position of the plaintiff, her categorical refusal to continue working on the conditions proposed by the employer, the court finds that the plaintiff, after changing the terms of the employment contract determined by the parties, refused to continue working, which, by virtue of clause 7, part 1 Article 77 of the Labor Code of the Russian Federation is the basis for terminating an employment contract.

In accordance with subparagraph b of paragraph 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 of March 17, 2004 "On the application of the Labor Code of the Russian Federation by the courts of the Russian Federation" the contract is not a violation of labor discipline, but serves as the basis for terminating the employment contract under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Article 74 of the Code.

On the basis of Article 74 of the Labor Code of the Russian Federation, in the absence of another job for the employer or the employee refuses to accept the offered job, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

At the same time, on the basis of clause 61 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 2, if, when resolving a dispute on reinstatement at work, the court recognizes that the employer had grounds for terminating the employment contract, but indicated in the order that the wording of the grounds and (or) reasons was incorrect or not in accordance with the law dismissal, the court by virtue of part five of Article 394 of the Code is obliged to change it and indicate in the decision the reason and basis for dismissal in strict accordance with the wording of the Code or another federal law with reference to the relevant article, part of the article, paragraph of the article of the Code or other federal law, based on the actual circumstances that served as the basis for the dismissal.

For the above reasons, the court found it possible to partially satisfy the claim, change the wording of the dismissal "for repeated non-performance by the employee without good reason of work duties" to "dismissal due to the employee's refusal to continue working in connection with a change in the terms of the employment contract determined by the parties under clause 7 h. 1 article 77 of the Labor Code of the Russian Federation ".

Since the labor relations between the parties were recognized by the court as terminated from 31.12.2010, the satisfaction of the requirements for providing the plaintiff with conditions for effective and safe work, providing her with a convenient time for training - from 17.00 to 20.00, provision of high-quality sports equipment, inventory, stationery and by the way, it is not possible to reimburse material compensation for forced absenteeism from 01/11/2011 to the date of the court's decision.

The claim for the recovery of compensation for moral damage is also not subject to satisfaction, since, as established by the court, the employer did not commit significant violations of the plaintiff's rights, while on the basis of Article 237 of the Labor Code of the Russian Federation, compensation for moral damage is allowed only if it is caused by unlawful actions (inaction) of the employer. Court decisions upon dismissal of employees on the initiative of the employer // http // trudovoikodeks.ru ›praktika_iniz_rd.shtml

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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 not at your workplace without 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 penalties (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.