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Can they be fired from a job for no reason? When can an employer fire an employee on their own initiative? Reasons for dismissal by order of management

Many employers often need to find out how to fire an employee without his will under the law. Given the very strict requirements of labor legislation, as well as the fact that very often workers, especially retirees, do not want to leave, this can turn into a long and burdensome procedure in 2018, which also has many additional risks. Therefore, some employers, as a result, are even forced to conduct activities to their own detriment, instead of looking for information on how to dismiss an employee under the article and without consequences. However, there is always a way out of this situation - after all, labor legislation protects the rights of not only employees, but also employers.

How to fire an employee without his desire by law in 2018

Situations in which an employer wants to fire an employee without his desire under the law are extremely common in 2018 - some employees may perform actions that are clearly destructive for the company, do not fit in with the team and spoil the working environment, or the need for dismissal may also be caused by third-party circumstances. At the same time, very often employees use the fact of protection from the law and in every possible way prevent their dismissal. Therefore, with illiterate actions, the employer is either forced to tolerate their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

However, the law also protects employers by providing them with such tools to influence employees:

This - best option, since it will allow the employee not to receive negative entries in the work book, and the employer will get rid of possible claims. At the same time, you can both convince the employee to write and draw up an agreement with him to terminate the employment contract - the second case provides for the opportunity to provide the employee with any guarantees and payments in accordance with the provisions of Article 78 of the Labor Code of the Russian Federation. However, not every employee will take such actions - if he is determined to stay at work at any cost, then it will be impossible to dismiss him in this way.
Current legislation gives the employer the power to use disciplinary action in relation to employees, up to dismissal for a certain list of misconduct. At the same time, the range of grounds for dismissals is quite wide, therefore, in many situations, the employer has the opportunity to get rid of an objectionable employee if he does not follow instructions or grossly violates labor discipline.
In cases where the main purpose of dismissal is to save the company's finances, it may turn out good option dismissal of an employee without his desire, according to the law, it is a reduction in staff. However, it should be remembered that this method requires the strictest compliance with procedural requirements and is associated with additional costs for the employer.
If it is necessary to dismiss an employee who does not want to quit, having a probationary period will greatly simplify the dismissal procedure. However, with such a nature of dismissal, it is still necessary to take into account many features and nuances, without which it may be invalid.
Repeated violation of the rules work schedule . If the employee did not commit gross guilty acts, due to which he can be dismissed immediately, then if there are several disciplinary sanctions, he can still be dismissed under the article.
Mismatch or insufficient . In some situations, an employee can be fired for inconsistency with the position held or due to insufficient qualifications.
In the event that an employee who does not want to quit, occupies a managerial position, he can be dismissed without other grounds when the owner of the enterprise changes. Sometimes employers even have to specifically resort to a change of ownership in order to fire an employee who threatens the operation of the entire company.
The employer has the right to independently change working conditions for individual positions or the entire enterprise as a whole, which allows you to put the employee in conditions that will make his further work simply unprofitable. And although the employee has the right not to agree to work under the changed conditions, the employer will have the opportunity to fire him, observing a number of certain procedural actions.

There are some categories of employees who cannot be fired at the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be fired even if she commits gross misconduct and guilty actions against the employer. The ability to dismiss an employee who has a child under the age of three is also limited - if this employee is a woman or the sole breadwinner.

Each of the above methods of dismissal has its own characteristics, advantages and disadvantages, as well as many nuances of the procedural registration of the procedure, so they should be considered separately in order to know how to properly dismiss an employee by law in 2018 if he does not want to quit.

How to force an employee to quit voluntarily or by agreement

In many, even conflict situations if there is a need to get rid of an objectionable employee, employers simply do not know how to force an employee to quit own will or convince him to stop working by agreement of the parties. At the same time, there are enough possible actions that can be taken to ensure that the employee makes the right decision, even when he is initially set to conflict with the employer.

First of all, you should use polite treatment with the employee and find out why he does not want to leave and what actions the employer can do for the employee. This may be additional monetary compensation, issued by agreement of the parties, drawing up positive recommendations, or other benefits that may incline the worker to cooperate. However, it is not a fact that the employee will accept them.

Therefore, then the employee should be explained that he will not achieve anything by conflict, and the employer will have significant opportunities to “spoil” the employee’s life. In particular, it is necessary to notify him that a “bad” entry in the work book will significantly complicate employment. In addition, the employer may make a negative recommendation about the employee. But these methods of influence do not work for every employee.

In this case, the simplest tactic of action will be to use all the tools provided by the legislation. For example, initiate the fixing of the employee’s working time, issuing all instructions to him in the form of written orders with acts of acceptance, and fixing each result or error in the employee’s activities in order to find another reason for dismissal. Including the employer may be required to resort to one of the following methods.

The most convenient for the employer will be the dismissal of employees, if initially in the employment contract the working conditions are specified as clearly as possible, but with the possibility of the employer making certain assumptions. For example, an employer has the right to set an employee a low official salary or not indicate a specific place of work within one locality- then he will have the right to deprive the employee of the bonus part of the salary, if such an opportunity is provided for by local regulations or transfer him from place to place without his consent.

In general, these methods of action are legal, but they cannot guarantee a 100% result. Therefore, if they fail, other methods will have to be used. It should be noted that even voluntary dismissal can be challenged in judicial order if it was done under duress. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then judicial practice shows a minimum number of decisions in favor of the employee, since such a dismissal is almost impossible to challenge.

The dismissal of a pregnant woman of her own free will, as well as by agreement of the parties, is an exception. In this case, the court most often takes the side of the employee if the employer did not provide her with adequate compensation upon dismissal, comparable to the possible benefits that she would have received if she had remained at work.

How to fire an employee for a gross violation

The current legislation provides for a number of grounds on which an employee can be dismissed for a gross violation. However, the employer should remember that each such violation must be accurately and reliably documented in the manner prescribed by law. Gross violations that allow you to dismiss an employee on the sole fact of their implementation include:

This is an exceptional list of circumstances in connection with which it is possible to dismiss an employee without his desire under the law in 2018 due to a one-time misconduct. In this case, the employer will be required to complete the following procedural procedures:

Start an internal investigation into the circumstances.
Ask the employee for an explanation.
Issue an order to dismiss an employee.
Issue to an employee work book, funds due to him and a certificate of income.

In any case, this procedure can be challenged by the employee in court, and the judiciary imposes on the employer the obligation to prove the validity of the dismissal. At the same time, it should be remembered that during absenteeism for a good reason, an employee cannot be fired if the state of intoxication was not recorded by authorized persons - the employee also cannot be fired, disclosure of secrets or personal data must have all the signs of disclosure.

The notification of the employee and the issuance of all documents related to the dismissal to him must be carried out in the presence of witnesses and with their signatures on the transfer of documents to the employee and, if any, on the employee's refusal to accept them.

How to dismiss for non-compliance or insufficient qualifications

If the employee does not correspond to the position held or has insufficient qualifications, the employer has the right to terminate the employment relationship with him. At the same time, it should be remembered that this ground for dismissal must indeed take place and certain confirmations. In addition, the very establishment of qualifications and compliance job requirements employee must be carried out in independent centers qualification assessments, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should take into account that a fictitious dismissal for this reason will in any case be illegal. In addition, the employer will have to pay for services to confirm the qualifications of an employee.

A mandatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. It will be possible to finally terminate the relationship only if there are no such positions in the enterprise, or if the employee refuses to occupy them.

How to dismiss an employee without his desire under the law by changing the terms of the contract

A common method used to fire an employee without his will under the law in 2018 may be to change the terms of the employment contract. According to the law, the employer can make such changes only with the consent of the employee. However, a number of actions and situations allow changes to be made without the consent of the employee.

In this case, the employer only needs to notify employees 2 months in advance of changes in working conditions, including the place of work, the amount or system of payment, official duties in connection with the reorganization production processes. The very fact of reorganization must also be confirmed by internal regulations. Employees who do not agree with these changes should be given the opportunity to take any other vacant position suitable for them in terms of qualifications and health at the enterprise - and only after their refusal or in the absence of these positions, they can be dismissed.

How to get fired on probation

If an employee needs to be fired without his will to probationary period, the provisions of the current legislation give the employer additional opportunities for the implementation of this procedure. In particular, he can inform the employee about his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputable situations should take into account the following nuances:

It is the employer who must provide evidence confirming the employee's failure to pass the test. In their absence, the dismissal will be considered illegal.
The employee must be legally on probation. And this period cannot be assigned to young professionals, pregnant women and minors.

Therefore, basically challenging the dismissal during the probationary period is based precisely on the above two grounds. And it is the employer who should take care of the availability of all documents confirming both the legality of the probationary period and the validity of dismissal due to unsatisfactory test results.

How to lay off an employee without his desire

If it is necessary to reduce an employee without his desire, the employer has the right to do this in accordance with the standards of Article 81 of the Labor Code of the Russian Federation. At the same time, it should be remembered that the employer in connection with such a dismissal has a number of responsibilities:

Advance notification of layoffs. Employees must be given at least two months' notice of impending layoffs.
Mandatory notification of all regulatory authorities. Namely, a trade union organization, an employment center.
Providing severance pay to employees. It is paid at least in the amount of two months' average earnings of employees.
Implementation of social guarantees for certain categories of employees. Such guarantees include both a complete ban on layoffs for some workers and the right of workers to have priority retention in the workplace.
Everyone's offer vacancies. The employer, as in many other situations, is obliged to provide the reduced opportunity to get other vacancies suitable for them.

You can also read more about the features of layoffs to reduce staff, where all the nuances of this procedure are considered.

How to dismiss an employee without his desire under the law in 2018 - other nuances and features

In case you need to dismiss an employee without his desire according to the law in 2018, there are also many other additional nuances and features that unscrupulous employees can use to keep them at work. In particular, regardless of the circumstances, the dismissal of employees on sick leave or vacation is expressly prohibited. In this case, it is necessary to notify the employee in writing about the need for him to sign an agreement to dismiss on a specified date, or else - to first require such consent from him.

An attempt to dismiss a pensioner without his desire according to the law in 2018 can cause particular difficulties for the employer. In practice there are no normative documents, which in a special way would regulate the procedure for the dismissal or retention of pensioners at work. The exception is public service of any nature - in this case, the age limit at which an employee can hold a position is 65 years old and he will not be able to challenge such a dismissal.

It should also be remembered that the dismissal of managers during a change of ownership is allowed without any other grounds for terminating the employment contract. But it must be understood that leadership positions in this context, only the immediate head of the enterprise, his deputy, as well as Chief Accountant.

You will need

- Labor Code of the Russian Federation;
- consultation of an experienced personnel officer;
- Labour Inspectorate;
- reports on work, testimonies of colleagues.

Instruction

First you need to figure out how a dismissal can be issued in general. The wording, laws, articles are different, and there are nuances. So, you can be fired "by", "by agreement of the parties", "due to staff reduction", "due to the liquidation of the enterprise", "under Article 81 of the Labor Code". Each of these cases has its own subtleties.

If you are offered to quit at will, the employer expects to get rid of you with little blood, that is, not to pay you what you are owed. "Dismissal of one's own free will" is a wording that suits all employers without exception. Still, they pay exactly as much as you work out when you quit. If the employee does not want to sign the application, he may be offered "dismissal under the article."

If you intend to, offer the employer a dismissal "by agreement of the parties" and write down your conditions in the agreement. In a conversation, you can hint that you know how difficult it is to fire a person "under the article", and what weighty evidence your employer should have. It's great if you belong to a privileged category of citizens: you are pregnant, you are raising a child alone, or if you are a mother of many children. Then it's almost impossible to fire you.

If the employer does not agree to these conditions, you should remember if there were any violations and miscalculations in your work biography over the past month or two. What you should pay special attention to: you should not be late, the absence should be documented accordingly, the performance of duties should clearly comply with the employment contract you signed. Do not sign papers without looking; when sending on a business trip, get a travel certificate.

If you are fired due to a reduction in staff (clause 2 of article 81 of the Labor Code of the Russian Federation), then you have nothing to worry about. Your employer must give you advance notice of the termination, offer you another job, identify beneficiaries, report the reduction to the employment service, and pay you a severance pay in the amount of several salaries at the time of dismissal.

If they want to fire you due to the liquidation of the enterprise, you must also be warned about this no later than 2 months before the dismissal. You have every right to quit early, having received the salary for these same 2 months in your pocket.

The most pleasant way for you is dismissal by agreement of the parties. Dismissal by agreement of the parties occurs in accordance with Article 77 of the Labor Code of the Russian Federation, paragraph 1. Upon dismissal, you receive monetary compensation. The amount of this compensation will be limited by your mutual agreement with the employer. There is a written agreement that states when you will be fired and how much money you can receive.

If you are threatened with dismissal under Article 81 of the Labor Code of the Russian Federation, do not be alarmed ahead of time. You can be fired when the owner of the enterprise changes (Article 81, paragraph 4), if you are the general director, deputy CEO or chief accountant. You may be fired for inconsistency with your position (Article 81, paragraph 3). Then for you must collect attestation commission, which will come up with a test task for you. Even if you can't handle it, they can't fire you right away. You should be offered another position in this organization.

If you are threatened with dismissal under paragraph 5 of Article 81 of the Labor Code of the Russian Federation, then you regularly do not fulfill your labor obligations. Remember, in order to get fired, the violations must be regular and without good reason. In addition, you must have formal disciplinary actions.

You may also be threatened with dismissal for absenteeism or being late under paragraph 6 of Article 81 of the Labor Code of the Russian Federation. But this is possible only if you did not submit any documents why you were absent. It is also not recommended to be late regularly, but no one can fire you for one delay of less than 4 hours. More exotic articles for which you can be fired are "Theft and embezzlement" and "Loss of confidence." They are associated with documented violations of financial responsible persons or with violations committed under the influence of alcohol or drugs.

Even if you are still fired, you have every right to continue the fight. Within a month of being fired, you can sue your employer. You also need to contact labor inspection and make sure that upon dismissal you receive a work book with a record of dismissal, a dismissal order and orders to impose penalties (if any).

Under what conditions can an employee not be fired? who is not subject to dismissal, what is preemptive right on leaving at work and when the courts do not take it into account? Knowing the answers to these questions will allow you to complete the dismissal procedure while respecting the rights of both parties.

Who cannot be fired at the initiative of the employer

The Labor Code stipulates not only cases when the employer has the right to dismiss an employee, but also situations when the organization is deprived of such a right. The introduction of a list of persons whom the employer cannot dismiss at will is due to the less protected status of such workers compared to the rest. It is best to present them in the form of a table:

Base	worker	The period during which dismissal is impossible	Exceptions (when an employee can be fired)
	Temporarily disabled	sick leave period	Liquidation of the employer organization (termination of the IP activity)
	employee on vacation	Vacation period
Art. 261 of the Labor Code, paragraph 27 of the resolution of the Plenum of the Supreme Court of the Russian Federation “On the application of legislation regulating the labor of women ...” dated January 28, 2014 No. 1	Pregnant	Maternity leave. One week from the day the employer learned about the end of the pregnancy for a reason not related to childbirth	The organization (IP) is liquidated. A pregnant woman is hired to replace a temporarily absent employee, her employment contract has expired, and it is impossible to transfer her to another position
Art. 81, 261, 336 TK,	Worker with a child under 3 years old	Until the child's 3rd birthday	The organization or individual entrepreneur is liquidated. An employee who has a disciplinary sanction, without good reason 2 or more times did not fulfill labor duties. Gross misconduct by an employee labor discipline(drunkenness at work, absenteeism, disclosure of secrets, theft from work, violation of labor protection rules). Providing false documents when applying for a job. Loss of confidence in the worker serving values. The commission of an immoral act by an employee performing an educational function. Violation by the head of an organization, municipal or public servant of the Law "On Combating Corruption" dated December 25, 2008 No. 273-FZ in terms of concealing information about income and expenses, or inaction in case of a conflict of interest. An employee-teacher committed violence, mental or physical, against a pupil studying
	Single mother or other person in her absence, raising a disabled minor	Until the 18th birthday of a disabled person
	Single mother or other person in her absence, raising a minor	Until the child's 14th birthday
	The sole breadwinner of a disabled minor	Until the 18th birthday of a disabled child
	Sole provider of a minor	Until the child's 14th birthday
	A woman raising three or more young children when the other parent is unemployed	Until the child's 14th birthday or the other parent's return to work

Don't know your rights?

Right of Preemption: Who Can't Be Fired When Downsizing

A kind of immunity from dismissal in case of staff reduction in accordance with Art. 179 shopping malls have employees who have shown best performance labor and having the highest qualifications in comparison with the rest.

If the first condition is equal, the employer takes into account the additional circumstances provided for in Part 2 of Art. 179 TK. So, in accordance with the norm in such conditions, employees should be left at work:

with two or more dependents;
the only workers in the family;
who have received an occupational disease or work injury at their current place of work;
invalids of the Great Patriotic War or combat operations;
in parallel with work, improve their qualifications.

inventors (Article 35 of the USSR Law “On Inventions in the USSR” dated May 31, 1991 No. 2213-1);
workers on the first military service work (Article 23 of the Law “On the Status of Military Personnel” dated May 27, 1998 No. 76-FZ);
spouses of servicemen in the service government organizations and military units (Article 10 of Law No. 76-FZ).

In addition, the employer, by virtue of Part 3 of Art. 179 of the Labor Code, may stipulate the preferential right to leave at work for other categories of workers - in a collective agreement or other act of the enterprise.

INTERESTING! Judicial practice shows that in certain situations, the pre-emptive right may not be taken into account. In particular, the panel of judges of the Sverdlovsk Regional Court in the appeal ruling dated May 27, 2016 in case No. 33-9214 / 2016 indicated: if all available staff units for one position, there is no basis for considering the issue of the pre-emptive right of individual employees.

Preemptive right: which categories cannot be reduced with a decrease in the number of employees

The list of persons who have the priority right to retain their jobs in the event of a reduction in the number of staff, in accordance with Art. 179 of the Labor Code, coincides with the list of employees who have the same guarantees in case of staff reduction.

IMPORTANT! Dismissal as a result of a reduction in the number of employees or a reduction in staff without taking into account the employee's preemptive right is unlawful and can be appealed in court. If the employer cannot fulfill the obligation to prove the justification of the dismissal, established by clause 23 of the Resolution of the Plenum of the Supreme Court “On the application by the courts ...” dated March 17, 2004 No. 2, the courts usually come to the conclusion that the dismissal is illegal and reinstate the dismissed person.

Thus, the Supreme Court of the Republic of Altai, by its decision of November 26, 2014 in case No. 33-955, reinstated the employee at work, since the employer did not provide evidence of compliance with the dismissal procedure under Art. 179 of the Labor Code and evidence of the preferential right of other employees over the plaintiff.

In the appeal ruling dated May 31, 2016 No. 33-3600/2016 of the KhMAO-Yugra court, dismissal without considering the issue of the priority right of employees was also recognized as unlawful.

At the same time, there is no need to analyze the preemptive rights of workers if the employee used the provision provided by Art. 180 of the Labor Code the right to terminate work ahead of schedule, having received compensation. As stated in the appeal ruling Supreme Court Republic of Komi dated August 26, 2013 No. 33-4492 / 2013, the presence of consent to the early termination of work indicates the consent of the employee with the upcoming termination labor relations, which relieves the employer from establishing the existence of circumstances giving the employee the preferential right to remain at work.

Additional conditions under which an employee cannot be fired

In addition to the list of persons whom the employer does not have the right to dismiss within a certain period, the Labor Code also names a number of additional conditions that prevent the dismissal of an employee at the initiative of the employer. All of them relate to violations of the dismissal procedure:

The reason for dismissal is irrelevant.
Such a condition applies, in particular, to the case provided for by Part 5 of Art. 81 of the Labor Code, according to which it is impossible to dismiss an employee for guilty actions that led to a loss of confidence, or for an immoral act committed not in connection with work, if more than a year has passed since the discovery of such actions by the employer.
Additional conditions of dismissal were not met.
For example, according to Art. 269 of the Labor Code of a minor employee can be dismissed only after obtaining consent from the supervisory authorities:
- commissions on juvenile affairs;
- State Labor Inspectorate.
Failure to notify or reduce the notice period for an employee or union of a planned layoff.
The warning period varies from 3 months to warn the trade union about the impending mass dismissal of workers (Article 82 of the Labor Code) to 3 days to warn an employee who has shown unsatisfactory results of cooperation during the trial period (Article 71 of the Labor Code). This basis is common to any employer and employee.
Failure to comply with the requirements for the content of the notice of dismissal of the employee.
In practice, such a basis is rather shaky, since the Labor Code does not contain a single list of requirements. Individual Requirements provided for by Art. 81 and 180 of the Labor Code, the Procedure for the Submission of Notifications by Employers and Customers of Works (Services), approved. Order of the Federal Migration Service of June 28, 2010 No. 147, and are also contained in court rulings.

Judicial practice in cases of non-notification of dismissal

Whether or not a worker will be reinstated to his position if he was supposedly not notified of the impending dismissal depends on the specific circumstances.

In practice, it is not uncommon for an employee to ask to be reinstated at work, referring to the fact that the employer did not notify him of the impending dismissal. The case file reflects that the employee refused to sign the notice presented to him, but personnel officer reads the notification aloud to the employee, about which a mark is made on the document. The courts, having received evidence of proper notification, refuse reinstatement at work (see the appeal ruling of the Supreme Court of the Republic of Bashkortostan dated 10/05/2016 in case No. 33-19651/2016, the appeal ruling of the Moscow Regional Court dated 06/01/2016 in case No. 33-13162/2016, etc. .).

Conversely, if the case file confirms that the notice was not sent to the employee, the court will usually reinstate him at work. For example, in the resolution of the FAS ZSO dated 04/12/2011 in case No. A70-9086 / 2010, it is noted that, since the procedure for notifying an employee was not followed, an urgent employment contract lost its urgent character and by virtue of Art. 58 of the Labor Code becomes an agreement concluded for an indefinite period.

INTERESTING! In the appeal ruling of the Krasnoyarsk Regional Court dated August 17, 2016 in case No. 33-11098 / 2016, it is noted that the employer’s failure to send a notice to the employee about the termination of a fixed-term employment contract cannot be regarded as an intention to continue the employment relationship, i.e., to make the employment contract indefinite.

Some requirements for the content of the notice of dismissal

The Labor Code does not contain requirements for the details of the notification and its content, but some requirements are specified in other acts:

Notice Section	To whom is sent	Requirement	Base
Requisites	Employee	Since the decision to terminate the employment relationship is made by the employer or a person authorized by him, the head of the organization, the acting head or a person who has formalized authority to notify the upcoming dismissal has the right to send a notice of impending dismissal to the employee. A notice sent by the head of the HR department, who does not have formalized authority to make a decision on dismissal on behalf of the employer, is not appropriate	Determination of the Armed Forces of the Russian Federation of 03.10.2008 No. 89-B08-6
	Territorial division (TP) of the FMS	For the dismissal of a foreign worker, an additional requirement is established to notify the TP of the FMS with the help of unified form containing: − name of TP FMS; − employer status; − information about the employee; − information about work permit, patent; − information about the termination of the employment contract. Failure to fill in at least one field of the form means that the notification was made in an improper form, which entails liability under Part 3 of Art. 18.15 Administrative Code	Art. 13 of the Law of July 25, 2002 No. 115-FZ “On the Legal Status of Foreign Citizens in the Russian Federation”; Clause 5 of the Procedure for submitting notifications by employers and customers of works (services), approved. Order of the Federal Migration Service No. 147 dated June 28, 2010 and Appendix No. 20 to the order; decree Arbitration Court ZSO of December 11, 2015 No. F04-27100/2015 in case No. A27-9151/2015
	Employee	In the event of a reduction in the number of staff and dismissal due to insufficient qualifications, the employer is obliged to offer the employee to transfer to another vacant position. The employer must notify the dismissed person of all vacant positions, already existing and newly introduced, up to the day of dismissal. It seems logical that in case of dismissal due to insufficient qualifications or in connection with a reduction in the number of staff, the employer must notify the employee of available vacancies simultaneously with the notice of dismissal	Art. 81, 180 TK; determination of the Omsk Regional Court dated May 23, 2007 No. 33-1597

Let's summarize. The Labor Code regulates in detail the issue of protecting certain categories of employees from unlawful dismissal. In particular, the law determined the categories of persons, whom the employer can dismiss on his own initiative only in exceptional cases. These include sick employees, pregnant employees, workers on vacation, etc.

In addition, the Labor Code introduced for certain categories of workers a preferential right to retain work in the event of a reduction in staff. First of all, such privileges are enjoyed by the most useful employees, that is, those whose labor productivity and qualifications are higher than those of the rest.

Dismissal under the article, as it says Labor Code Russian Federation, implies the initiative of the employer, aimed at terminating the employment relationship with his subordinate. For dismissal from work under the article of the Labor Code of the Russian Federation, grounds are required that are actually confirmed and proven, otherwise there will be negative consequences for the employer. The reasons for such dismissal are enshrined in the labor law and represent an exhaustive list that cannot be supplemented or changed at the initiative of the employer. Accordingly, dismissal under the article should always be based on three important moments: grounds, procedure and consequences that are provided for each side of the relationship.

Reasons for dismissal

To dismiss an employee under the article, it is necessary to have a clear idea of when such a procedure can be carried out, and what grounds are provided for terminating an employment relationship without the consent of the employee himself. The law does not prohibit employers in this way from deciding the fate of the people they want to fire, but it should be remembered that the variant of relations under consideration is regulated as detailed as possible, and each proposed action has its own rule, the violation of which will entail an appeal to the labor inspectorate or even the court .

Dismissing an employee means terminating relations with him, however, this requires the presence of any legal facts, which will be those enshrined in article 81 labor law grounds.

These include the following provisions:

If we talk in more detail about violations of the labor schedule, then they are understood as:

Can they be fired for other reasons? This list is by law not exhaustive. In some situations, the question of why to dismiss a person, whether his act is a sufficient reason for this, and what can be done as a result, is often decided by the Commission on labor disputes.

For dismissal, the presence of a person at work is required. If he is on vacation or does not fulfill his duties due to temporary incapacity for work, then termination of the employment relationship is unacceptable.

Speaking of other reasons that may also serve as grounds for unilateral dismissal, it should be noted that such circumstances are recognized as exceptional. These include any violations of labor legislation, since the Labor Code of the Russian Federation directly establishes the possibility of referring to any of its norms if it is necessary to resolve a labor dispute, including in terms of dismissal of an employee without his consent to this.

Dismissal procedure

How to fire a person without his consent to it? Here an important factor is played by the initiative of the employer, which is necessarily supported by one of the grounds proposed by law. It is not prohibited without a voluntary application of a person to terminate any employment relationship with him. However, in addition to the circumstances that allow a person to be fired, it is necessary to remember the procedure itself, which must take place in strict accordance with established requirements. If this rule is not observed, then the very fact of dismissal will be invalid.

In order for the employer to avoid problems with the court in the future, he must submit all documents to the employee in a timely manner and officially indicate the fact of dismissal.

The action plan for termination of employment with a person at the initiative of the employer is a series of steps that must be completed in each case of dismissal:

Establish reasons for dismissal. Here it is necessary to prove the fact of violation. The method of fixation will depend on what misconduct was discovered. For example, intoxication must actually be identified and established, it is not enough to prove that a person consumed alcohol that day, or theft at work will be a reason for dismissal only if there is a guilty verdict already at the end of the trial.
Employee warning. Such a step is mandatory, but its features will depend on what kind of violation is detected. For example, when a company stops its work, then it is necessary to notify the person, and two months in advance, and if the person does not work, skips work or has other similar misconduct, then one month is enough.
Familiarization of the employee with the notice of termination of employment with him. To do this, the employer is obliged to prepare an official document that will reflect the reasons for dismissal and their detailed explanation. The employee must sign such a document, this will confirm the fact that he has familiarized himself with the paper, even if he does not agree with such a decision. If a person refuses to sign a document, then it is drawn up again, but in the presence of witnesses who in the future could confirm the fact of refusal.
Explanation from the employee. The employer has the opportunity to demand explanations about the misconduct that the person has committed. However, according to the law, the employee is not obliged to do this and can always refuse, such acts will not be recorded by any acts. At the same time, the absence of an explanatory note does not release the person from the responsibility imposed on him. disciplinary punishment.
Dismissal order. Ideally, there should be two such documents. One order must reflect the decision to apply a disciplinary sanction, and the second order directly terminates any employment relationship. However, in practice, most often only the second version of the order is dispensed with without a detailed indication of the application of punishment. The employee must also familiarize himself with the order and sign it, otherwise it will be a violation of his rights. In addition, the order must be accompanied by a note-calculation, explanatory notes, if any, and other relevant documents.
Recording in the labor and its issuance to the employee. Be sure to pick up your work book on the day of dismissal. In it, the personnel officer puts down a record of the fact of dismissal with a reference to the reason for the termination of relations with the employee. Dismissing under the article, it is always indicated exactly which rule applies. When it comes to violations, article 81, its specific part and a paragraph reflecting the type of misconduct should be indicated. The record must be certified by the seal of the organization and the signature of the management, and it is also necessary to indicate the number of the order.
Calculation. Even if a person is fired for misconduct, he is still entitled to payments, which include wages for the period worked before the day of dismissal, as well as compensation due for unused vacation. Moreover, if a person missed several of his vacations, then compensation is charged for each of them. When it comes to shutting down an entire company or laying off part or all of the staff, severance pay is also paid. Payments must be made on the day of dismissal, at the same time the employer must pay taxes.

It is unacceptable to skip any of the specified stages, the presence of each specified document will be a confirmation that the termination of relations is legal, and the interests of the employee were not violated, despite the reason for dismissal.

Consequences

What to do if you were fired under the article, and what threatens such a decision for the dismissed person in the future? The consequences may be different, but first of all, this is a spoiled characteristic and difficulties that arise during subsequent attempts to get a job. However, depending on how the procedure was carried out and how justified the decision to terminate the employment relationship, negative consequences may overtake the employer himself. Often, mistakes and violations of the labor law lead to material compensation, inspections, and even a change in leadership.

Dismissal under a compromising article is always considered a negative phenomenon, if in the future, in connection with this, a refusal to hire will follow, then it will not be possible to recognize it as illegal.

The very fact of designating an article in the labor at dismissal is not negative. It is always prescribed, even if the termination of the relationship occurs at the request of the employee himself. The only difference is in the rules of law.

And it is precisely depending on the reasons and the articles of the Labor Code used, respectively, that the consequences for the person who has lost his job will be determined:

Accordingly, the indication of an article in a work book does not always imply negative consequences for a person who has lost his job. It all depends on the specific grounds and conditions for terminating the relationship in question.

If an employee disagrees with decision regarding the termination of his work, he can always challenge it first in the Commission for Labor Disputes, and then in court.

Despite the free opportunity to protect their interests as an employee, there is only a limited list of cases where a challenge is, in principle, permissible. Firstly, situations where the reason for dismissal is poor evaluation results. Here it is allowed to contest the results themselves, but only no later than ten days from the moment of their announcement. Secondly, violation of the law by the employer. It is enough to prove that the dismissal procedure was illegal and groundless. And thirdly, cases of theft. If you challenge a sentence that finds a person guilty, then you can challenge the decision to terminate labor activity.

Thus, stopping work on the article does not always mean that there will be negative consequences. The considered option of dismissal is connected both with the personal desire of a person to leave work, and with the initiative of the employer, who, based on specific reasons, decides to get rid of the employee. The main thing is to follow the dismissal procedure and have grounds for such a decision, otherwise the actions of the management will be challenged and will be invalid.

How can you fire an employee without their consent? This topic is of interest to many modern employers. After all, the termination of an employment relationship is a complex procedure in itself. Violation of the established procedures leads to the fact that the employee can be reinstated. For example, through the court. What should every employer remember about the dismissal of subordinates? How does this procedure take place?

Ways to terminate a relationship

Can an employee be fired without their consent? We will have to deal with this issue further.

To begin with, consider several ways to terminate labor relations in the Republic of Belarus and the Russian Federation:

at the personal request of the subordinate;
at the initiative of the employer;
due to downsizing;
due to liquidation of the enterprise;
by mutual agreement of the parties.

Usually the first option is considered the most acceptable. But what if a citizen does not want to leave work? Is there any way to get rid of it? And if so, how to do it?

Legal basis

In order to correctly answer such questions, it is necessary to carefully study the Labor Code of the Russian Federation.

It states that the termination of labor relations in Russia can occur even without the consent of the employee. That is, the theoretically studied operation takes place.

The problem is that bringing an idea to life is not as easy as it seems. The employer will have to follow a certain algorithm of actions. In addition, in order to terminate an employment contract with a person, you need good reasons. You can't just deprive a citizen of work.

Main reasons for dismissal

How can you fire an employee without their consent? We have already said that this operation is possible only if there are good reasons for this. Simply because "the employer wants to" terminate the employment relationship will not work. This is a direct violation of the current legislation.

Most often, the initiative of the employer regarding dismissal comes from the following reasons:

position mismatch;
violation of labor discipline;
termination of the company / reduction of staff.

How can you dismiss an employee without his consent in the Republic of Kazakhstan or the Russian Federation? The algorithm of actions in both cases will be approximately the same. The difference lies in the fact that upon dismissal, different articles of the codes will be written in the work books.

Reduction

To begin with, let's consider not the most common reason - forced dismissal due to staff reduction.

By current laws the employer must keep more qualified and experienced employees at work during layoffs. Everyone else is warned in advance about the upcoming event in writing. A decree is issued with which employees are introduced.

After the reduction, the employer must pay severance pay to all those laid off. In addition, subordinates are entitled to compensation for the time actually worked and for unused vacation.

liquidation

How can you fire an employee without their consent? The next option is also extremely rare. Therefore, we will consider it without details.

We are talking about the liquidation of the enterprise. The employer notifies subordinates of the closing of the company, makes calculations (severance pay, compensation and other payments), and then indicates in the work books of employees that they were fired due to the liquidation of the company.

Reduction Prohibitions

How can you fire an employee without their consent? budget organization and not only? We have already considered several options. But, as already mentioned, they are not very common.

It is important to note that the authorities do not always have the right to terminate labor relations unilaterally on their own initiative. Forced dismissal is not allowed:

pregnant women;
women on maternity leave;
single mothers with children under 14;
minors;
mothers whose children have not yet reached the age of three.

These categories of citizens cannot be dismissed in case of staff reduction. Only on personal initiative. But you can get rid of such subordinates by liquidating the enterprise. In practice, such cases do not occur.

Job inconsistency

The next course of action is the termination of labor-type relationships due to the inconsistency of the subordinate with the position held. What it is?

Such situations include:

lack of qualification (education);
non-compliance with the position for health reasons.

The decision on compliance with the position is made by the commission. In the first case - attestation, in the second - medical. A citizen passes certification and, if he fails it, the employer has the right to terminate the employment relationship. As in previous cases, this is notified in writing by issuing an order.

Inconsistency with the position held for health reasons is established during medical examination. The employee takes tests, visits certain doctors (their list depends on the place of work of the person), and then receives a conclusion of the established form.

Important: the employer has the right to offer the dismissed person a position to which he corresponds. If there are no suitable places or the employee refuses other vacancies, he is allowed to be fired.

Breach of discipline

The most common scenario (and the most difficult to implement) is the termination of relations between the subordinate and the employer due to violations of labor discipline. If the contract does not specify a specific place of work, as well as the work schedule and duties of the employee, it will be problematic to cope with the task.

According to current laws, an employee must commit 3 disciplinary violations so that the boss can terminate the employment contract. Prior to this, reprimands and warnings are made to the citizen, and disciplinary sanctions may also be applied, if such are provided for by the labor agreement.

Just one time

But that's not all. How can you dismiss an employee without his consent, if you do not want to wait a long time? It is recommended to take a closer look at your subordinate. Maybe he will commit a serious offense. Then just one violation is enough to terminate the employment contract. On a similar example, we will consider the dismissal at the initiative of the employer.

major damage to company property;
theft;
absenteeism;
being at work under the influence of alcohol or drugs.

These are the most common circumstances in real life. So how can you legally fire an employee without their consent?

Instructions for dismissal

You need to follow a certain pattern. It will help you avoid breaking established rules Labor legislation. So, the termination of the contract will be fully legal.

As we have already said, we will consider the process of dismissal due to a citizen committing a serious violation. For example, walking.

In this case, the employer must:

Establish a violation.
Draw up an act on the commission of a crime / misdemeanor.
Gather relevant evidence.
Ask the employee for an explanation. If a person has not submitted the appropriate paper after 2 days, it is necessary to draw up an act of the established form.
Issue a dismissal order for violation.
Familiarize the subordinate with the document. The employee refuses to sign the order? Then you need to draw up an act on such an act.
Make an entry in the employee's work book. In our case, this is paragraph 6 of Article 81 of the Labor Code of the Russian Federation.
Issue a work book and pay slip to a subordinate.
Make a settlement with a former employee.
Issue the necessary certificates to the citizen. For example, Form 2-NDFL.
Attach the dismissal order to the employee's personal file.
Send the appropriate package of documents to the archive.

That's all. It would seem that there is nothing difficult in this. The main problem is to prove the existence of violations on the part of the employee. Especially if we are talking about the walk.

Important: if the dismissed person refuses to sign orders, receive calculations and documents, the employer is obliged to record this. As you might guess, this is done by writing the relevant acts.

Sick leave and leaving work

How can you fire an employee without his consent if he is on sick leave? No way. This is possible only in the event of liquidation of the company.

Legislation prohibits the dismissal of employees who are in the status of disabled. Therefore, you will have to wait.

The exception is cases of dismissal at the initiative of the employee. Then a person can terminate the employment contract both on vacation and on sick leave.

Pregnancy and retirement

We found out how you can dismiss an employee without his consent in the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation. And what about pregnant women?

It's not easy to get rid of them. Labor law, as already emphasized, allows you to terminate relations with such subordinates:

on their initiative;
due to liquidation of the organization.

In addition, a pregnant woman can be fired at the initiative of the employer as an ordinary subordinate, if an interesting situation is not documented. In such circumstances, the previously suggested guidelines should be used.

Conclusion

We found out how you can fire an employee without his consent. The methods presented to our attention are found in real life more and more often.

Nevertheless, the majority of employers incline subordinates to dismiss of their own free will - they persuade, intimidate, survive, or simply offer a similar option. Less common is the termination of labor-type relationships due to the agreement of the parties.