Dismissal for absenteeism: consider judicial practice. Dismissal of an employee: procedure and documentation Dismissal of article 81, paragraph 6

The dismissal of an employee is not always recognized by the courts as legal, even if there are all grounds for this. Analysis of a specific situation related to the dismissal of an employee on the grounds provided for in subsection. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, taking into account the position of the disputing parties (employee and employer), the court considering the labor dispute, makes it possible to clarify a number of issues. For example, what caused the employee to be reinstated? What shortcomings did the employer make in this case, who is to blame and what needs to be done in such situations? An analysis of the positions built by the disputing parties in a lawsuit allows us to determine which of them are unsuccessful, which prevented them from achieving a positive result, which could have been done in a given case. All this allows us, in some way, to learn from the mistakes of others and avoid them in the process of applying legislation.

Fable

By decision of the Orekhovo-Zuevsky City Court of the Moscow Region, K., dismissed on the grounds provided for in sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, 08/06/2008 was restored to .

K. worked in organization “R” from July 12, 1978 as a driver of pumping units at assembly site No. 2 of assembly production. For appearing at work on January 15, 2008 while intoxicated, he was fired on February 11, 2008.

Disagreeing with the employer’s decision, K. filed a lawsuit to reinstate him at work, collect wages for the period of forced absence, recover the costs of paying for the services of a representative in the amount of 6,000 rubles and legal costs for photocopying documents in the amount of 35 rubles.

Employee position

During the trial, K. indicated that he considered his dismissal illegal for the following reasons.

Firstly, the dismissal, in his opinion, is unfounded, since he did not violate labor discipline and was at work on January 15, 2008, in a sober state. After work that day, the guard at the checkpoint took his pass, telling him that he was drunk. Since he felt bad, his left side hurt, he did not argue with the guard or find out anything. K. went home from the checkpoint with his partner G. The next day, i.e. On January 16, 2008, K. went to the emergency room of the city hospital, where he was diagnosed with a rib fracture.

Secondly, the employer, according to K., violated the procedure for his dismissal.

On 02/11/2008 he was dismissed at the initiative of the employer by order No. 58-k dated 02/14/2008, i.e. during the period of his temporary incapacity for work. From January 16 to February 11 inclusive, K. was undergoing outpatient treatment for a rib fracture, which is confirmed by the certificate of incapacity issued to him.

Defendant's position

The employer's representative partially admitted K.'s claims.

In his opinion, K.’s demands for his reinstatement and recovery of average earnings for the period of forced absence are justified, since when issuing the dismissal order, a formal error was made in the date of dismissal, which the employer admits. It was necessary to dismiss K. on 02/12/2008, and not on 02/11/2008, as indicated in the order. The employer did not admit any other violations during K.’s dismissal, explaining that on January 15 K. was detained at the checkpoint at 3 p.m. 40 min. intoxicated, which is confirmed by act No. 7 on violation of labor discipline dated January 15, 2008.

K. refused to sign this act and returned to his workshop, where he remained until the end of working hours. After 5 p.m. K. left the organization’s territory. On this day K. did not complain about his health. In addition, the employer's representative drew the court's attention to K.'s contradictory explanations regarding the time of his injury. In his explanation dated February 12, 2008, K. indicated that he received the injury on January 14, 2008.

At the same time, according to his written explanation dated February 15, 2008, he received the injury on January 15, 2008, at 7 p.m., when he fell at home, hit the bed and bruised his ribs. Thus, based on his explanations, it is not clear when he received the injury: on the eve or after leaving work on the day of the offense, which is recorded in the act. According to the employer's representative, K. was healthy on January 15, 2008, which is why he did not give a written explanation on the day of his detention at work. In addition, for the employer’s representative, the possibility of K. going to work with such a serious injury as a broken rib, and his performance of work duties in this condition, seemed very doubtful.

The employer's representative objected to reimbursement of the representative's fees for the following reasons. Firstly, the representative of the plaintiff (K.) is neither a lawyer nor an individual entrepreneur, therefore he does not pay taxes and, moreover, does not have the right to provide services for a fee. Secondly, representation services are not needed in this case, since the case is quite simple and K. would have been reinstated in any case. Third, the expenses for the services of representative K. are not confirmed by payment documents. Objecting to reimbursement of costs associated with photocopying materials, the defendant’s representative explained that this was not necessary, since K.’s representative could personally familiarize himself with the case materials in court.

Established by the court (during the court hearing)

During the consideration of the labor dispute, the court found the following.

By order of the General Director “R” dated 02/14/2008 No. 58-k, K. was dismissed from the position of driver of pumping units at assembly site No. 2 of assembly production on 02/11/2008 for appearing at work on 01/15/2008 in a state of intoxication under the law . “b” clause 6, part 1, art. 81 Labor Code of the Russian Federation.

The grounds for issuing the order were Act No. 7 of January 15, 2008 on violation of labor discipline and the order of the head of the assembly production.

According to act No. 7 of January 15, 2008, drawn up by the chief of the guard K. and the squad shooters P. and B., it follows that on January 15, 2008 at 15:00. 40 min. At the entrance, K. was detained while intoxicated; K. refused to say anything in his own defense.

The signs of K.'s alcohol intoxication are indicated in the report: unsteady gait, incoherent speech, strong odor of alcohol from his breath.

According to the order of the head of the assembly production “On punishment” dated 01/17/2008, K., detained on 01/15/2008 in the entrance of the plant in a state of strong alcoholic intoxication, which is confirmed by act No. 7 of 01/15/2008 (taking into account the repetition of his similar actions ), sent to the PMO for further employment (dismissal).

The position of the court and the reasoning behind its decision

The court declared K.'s dismissal illegal, arguing its decision as follows.

Firstly, the court came to the conclusion that the defendant (employer), as the party on whom the burden of proving the fact of K.’s violation of labor discipline lies, did not provide convincing evidence that the plaintiff (K.) was intoxicated.

There is no corresponding medical report, since a medical examination for K.’s alcohol consumption was not carried out on January 15, 2008, and the presented act No. 7 of January 15, 2008 does not fully confirm the fact of K.’s alcohol intoxication.

The court found no reason not to trust the explanations of K., his representative, that on January 15, 2008, after finishing work at about 5 p.m. 05 min. left the territory of the enterprise through the checkpoint, where his pass was taken away and he was told that he was drunk. This was not true, because... he had an injury (rib fracture) that occurred the day before at home. These circumstances are confirmed by the work time sheet, the testimony of witness G., K.’s explanatory note dated February 12, 2008, and a medical certificate.

So, according to the work time sheet, K. worked the entire working day.

Witness G. testified that K. complained of pain in his side throughout the working day, referring to an injury received the day before at home. He did not notice that K. was drunk or smelled of alcohol. In addition, K. worked all day, did not go anywhere, they left the organization through the checkpoint at the same time, at 17.05.

According to a medical certificate from the City Clinic, K. was undergoing outpatient treatment from January 16, 2008 to February 12, 2008, including for a fracture of the 10th rib on the left.

At the same time, the court did not take into account the arguments of the employer’s representative about the presence of contradictions in the explanatory notes dated 02/12/2008 and 02/15/2008.

The court, using judicial discretion, came to the conclusion that there was no reason not to trust the testimony of witness G.

In addition, recognizing the contradictions identified in court regarding the date of K.’s injury as insignificant, the court decided that this circumstance does not allow an objective conclusion to be made about K. being intoxicated on the territory of the organization on January 15, 2008.

In connection with the above, the court came to the conclusion that there was no legal basis for the dismissal of K. under subsection. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (the appearance of an employee at work (at his workplace or on the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication).

Secondly, the court concluded that the employer violated the requirements of labor legislation for the procedure for dismissing an employee for committing a disciplinary offense.

The court did not find it proven that the employer fulfilled the obligation to request a written explanation from the employee regarding the offense committed by him. The employer's representative's reference to the fact that on January 17, 2008 the plaintiff was familiarized with act No. 7 of January 15, 2008 on violation of labor discipline, but at the same time immediately refused to give a written explanation, which was recorded in the act dated January 17, 2008, declared insolvent by the court. K. was temporarily disabled on that day, and the employer did not provide evidence confirming the fact that K. was on the territory of the organization.

At the same time, it was recognized as reliable that K. gave a written explanation regarding the disciplinary offense on February 12, 2008. This, in the court’s opinion, indicates that the said explanation was required from him precisely on February 12, 2008, since without the employer’s proposal K. would hardly have provided such an explanation.

In addition, from the presented certificate of incapacity for work, a certificate from the Municipal Health Institution “City Clinic” dated 02/28/2008, it is clear that K. was dismissed on 02/11/2008, during the period of his temporary incapacity for work, which is not allowed in relation to cases of dismissal of employees at the initiative of the employer .

In the presence of such circumstances, established during the trial, the court came to the conclusion that the employee should be reinstated to his previous job, since it is not possible to consider this dismissal legal.

The court satisfied all the demands made by the employee and his representative.

Analysis

Assessing the court decision, it should be said that the court examined the legality of K.’s dismissal from two positions:

• from the position of validity (the presence of a legal basis);
• from the point of view of the employer’s compliance with the procedure for dismissing an employee.

Assessing the existence of a legal basis for dismissing an employee under sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the court quite rightly proceeded from ascertaining the existence of a legal basis for the dismissal of K.

Interpretation of the law

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In accordance with paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 (as amended on December 28, 2006) “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter -) when resolving disputes related to termination of the employment contract under sub. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (appearing at work in a state of alcohol, narcotic or other toxic intoxication), the courts must keep in mind that on this basis, employees who were in a state of alcohol, narcotic or other toxic intoxication during working hours at the place of performance of work duties can be dismissed intoxication. It does not matter whether the employee was suspended from work due to the specified condition.

It is also necessary to take into account that dismissal on this basis can also follow when the employee during working hours was in such a state not at his workplace, but on the territory of this organization, or he was on the territory of the facility, where, on behalf of the employer, he had to perform a labor function .

It is no coincidence that the court examined evidence confirming the fact that K. was intoxicated at work.

Interpretation of the law

By virtue of paragraph 42 of Resolution No. 2, the state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and by other types of evidence, which must be assessed accordingly by the court.

This explains the corresponding assessment by the court of act No. 7 of January 15, 2008, drawn up by a commission of three people. It cannot be ignored that the court has the right of judicial discretion to evaluate the evidence presented, admitting some and rejecting others for one reason or another.

Assessing the actions of the employer, the court clearly defined the circumstances to be proven - these are the circumstances of compliance with the statutory procedure for dismissing K.

Interpretation of the law

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In accordance with paragraph 53 of Resolution No. 2, a circumstance that is important for the correct consideration of cases of challenging a disciplinary sanction or reinstatement and subject to proof by the employer is its compliance when applying a disciplinary sanction to an employee arising from Art. 1, 2, 15, 17, 18, 19, 54 and 55 of the Constitution of the Russian Federation and the general principles of legal and, consequently, disciplinary responsibility recognized by the Russian Federation as a rule of law state, such as justice, equality, proportionality, legality, guilt, humanism.

According to Art. 193 of the Labor Code of the Russian Federation, the employer is obliged to request a written explanation from the employee. Consequently, it was precisely this circumstance that was subject to proof by the employer during the consideration of the labor dispute. However, no documents confirming that the employer did this were presented to the court.

The report, drawn up on January 15, 2008, contains information that K. was intoxicated at the checkpoint. Who, when and how he requested a written explanation from K. regarding his appearance at work while intoxicated, the employer’s representative could not confirm. His claim that this was done is unsubstantiated.

On January 17, 2008, a report was drawn up stating that K. had not provided a written explanation. However, this act is not significant, since there is no properly recorded fact of the employer’s fulfillment of the obligation to request a written explanation from the employee.

Within the meaning of Art. 193 of the Labor Code of the Russian Federation, the employee has the right to give a written explanation within two working days. This period is related to the date on which the employer fulfills its obligation to request a written explanation from the employee. By virtue of Part 1 of Art. 193 of the Labor Code of the Russian Federation, it is the employer who is obliged to request a written explanation from the employee, which must be confirmed by the employer.

The court quite rightly found a violation of the statutory guarantees of K.'s rights when he was dismissed at the initiative of the employer. According to Part 6 of Art. 81 of the Labor Code of the Russian Federation, it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary disability and while on vacation.

At the same time, we cannot agree with the opinion of the representative of the defendant (employer) that there was a formal error in the order regarding the date of dismissal. In the situation under consideration, we are not talking about a formal error, but about a violation of the right of an employee, whom the employer has no right to dismiss during a period of temporary incapacity.

Thus, the basis for the decision to reinstate the employee was the evidence obtained during the trial of the employer’s violation of the procedure for dismissing the employee and the lack of evidence of a legal basis for terminating the employment relationship with him under subsection. “b” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, which indicates the legality of the decision made by the court.

It should be noted that the court, when considering a labor dispute, assigned the responsibility of proving the legality of the dismissal of an employee to the defendant (employer).

Despite the provisions of Part 1 of Art. 56 of the Code of Civil Procedure of the Russian Federation, according to which each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law, the court, when considering a labor dispute, must assign the duty of proving the legality of the dismissal of an employee to the employer.

Interpretation of the law

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This position was taken by the Supreme Court of the Russian Federation.

According to paragraph 53 of Resolution No. 2, it is the employer who must provide evidence indicating that the employee committed a disciplinary offense and that when imposing a penalty, the severity of this offense and the circumstances under which it was committed were taken into account (Part 5 of Article 192 of the Labor Code of the Russian Federation), as well as the employee’s previous behavior and attitude towards work.

If, when considering a case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied.

This is fully consistent with the provision provided for in Part 2 of Art. 56 of the Code of Civil Procedure of the Russian Federation, according to which the court determines what circumstances are important for the case, which party must prove them, and brings the circumstances up for discussion, even if the parties did not refer to any of them.

Assessment of the situation

In general, the following can be noted about the case.

1. In order to conduct an independent assessment of lawful behavior, one should be guided by two criteria: the presence of a legal basis and compliance with the procedure established by law.

At the same time, they should be assessed from the point of view of proving the grounds for dismissal of the employee and the employer’s fulfillment of the requirements provided for by law.

2. The situation under consideration raises many questions. In particular, why didn’t the head of the assembly production know what was happening in his department? Does this mean that the employer did not know whether the employee was working for him, and if he was working, what kind of work he was doing? In this case, who organizes and manages the labor process? To what extent does the head of the structural unit in which K. worked properly fulfill his duties?

Please note: according to the employer’s representative, K.’s appearance in a state of intoxication is discovered by security guards at the checkpoint at 3 p.m. 40 minutes, after which K. returns to his workplace and continues to work there.

The very fact that the head of a structural unit learned that his subordinate was intoxicated at the workplace during a certain period of the work shift from security workers may raise some doubts that this fact actually took place.

In addition, if K. was at work and performing a labor function, having an injury (fracture of the 10th rib), did his health condition allow him to do this, could this lead to an injury at work and, as a consequence, the need to investigate an accident at work, compensation for damage to employee health? All these are very important aspects of the organization of the labor process and its management, which need to be properly assessed in order to eliminate the identified deficiencies and prevent this from happening in the future. However, they were not and could not be the subject of discussion during the consideration of the labor dispute, since they went beyond the scope of the claims.

3. The employer is obliged to request a written explanation from the violator of labor discipline. In this regard, a natural question arises about who has the right to request a written explanation from an employee who appears at work in a state of intoxication.

The employer, being a legal entity, acts through its representatives. It is unlikely that security workers have the right to request a written explanation from an employee who violates labor discipline.

It should be noted that the protection of an organization is carried out, as a rule, on different conditions:

• it is carried out by employees who have an employment relationship with the organization (this employer);
• it is carried out by an organization (persons) on the terms of a civil contract, i.e. persons who are not in labor relations with the organization.

In the first case, the right to request explanations from employees may be provided for by the labor function of the employee (for example, the head of security); in the second case, such a right cannot be provided for, since the organization providing security cannot be recognized as an employer in relation to the violator of labor discipline. Therefore, no matter what conditions the contract with a “third-party” organization for the security of the enterprise contains, the employee, in the event of a violation of labor discipline, does not enter into a relationship with a third party. Consequently, if employees of a security company, who are not employees of the organization, detect an offense, they are obliged to report this to the employer, who must take appropriate organizational and managerial measures.

Meanwhile, despite the type of relationship that develops between the organization (employer) and the persons providing security for the enterprise, they have the right to record certain events of significance, including the fact of violation of labor discipline by the employee.

It should be noted that the fact that the employer fulfills the requirement provided for in Art. 193 of the Labor Code of the Russian Federation, which provides for the employer’s obligation to request an explanation from the employee, has not been confirmed in any way.

A document that records the fact that the employer has requested a written explanation from the employee regarding the fact of the offense he has committed can be a written invitation to the employee to provide an appropriate explanation and the consequences of failure to provide it. Considering the period established by law during which the employee has the right to submit a written explanation, it is advisable to record the moment of delivery of this document to the employee. It should be borne in mind that the employee has the right to refuse to receive it. In this situation, there is reason to believe that the employer has again failed to fulfill the obligation to request an appropriate explanation from the employee. Therefore, it is advisable to read such a document to the employee and record it in an appropriate act drawn up by the commission present at the time, which reflects the fact that this document was read out to the employee and his reaction to this.

It must be borne in mind that the legislator says about two working days. Therefore, if 01/17/2008 was a non-working day for K., since he was temporarily disabled and could not exercise the right to provide a written explanation, should the employer draw up a report indicating the absence of a written explanation on that day? It seems that the employer in this case should have waited until the employee went to work and drawn up an act of refusal to give a written explanation (provided that the employee did not provide one).

When considering a labor dispute, the court focuses on the fact that the employer drew up an act regarding the employee’s failure to provide a written explanation on the day he was absent from work due to illness. This is no coincidence. In fact, it does not seem possible from the standpoint of formal logic to record something that did not happen (i.e., the fact that the employee did not provide a written explanation), and even for some time. You cannot record what is not happening. Therefore, the employer, as a rule, after two days, re-applies to the employee with a question why he did not provide a written explanation. At the same time, the employer records precisely these circumstances: finding out the reason for not providing an explanation and the employee’s response (his reaction). In this regard, it would be advisable to approach the employee with such a question after he returns to work.

However, whether it is worth repeatedly requesting a written explanation from the employee is up to each employer to decide independently, taking into account the specific circumstances that arise in this case.

Appearing at work while intoxicated can be confirmed by an appropriate medical examination report. In this case, the medical institution must have the appropriate license to provide this type of medical services. However, it should be borne in mind that the employee has the right to refuse to undergo a medical examination. This is permitted only with his consent. The employer does not have the right to force the employee, but can only offer him to undergo such an examination. An employee’s refusal to undergo a medical examination does not confirm the presence of alcohol intoxication.

In this case, the employer has only one option: draw up an appropriate act, which indicates the signs of alcohol intoxication inherent in this employee. However, it should be borne in mind that such an act, like any other evidence, is subject to appropriate assessment by the court.

The necessity to familiarize the employee with the act that records his violation is due to the employer’s need to request an appropriate written explanation from the employee, i.e. upon the fact that he has committed an offence. However, the fact of an offense can be confirmed by other documents, for example, a complaint from a visitor about improper service provided by an employee of the organization. In this case, there is no need for an act of violation of labor discipline by the employee. There is also no need for reports of an employee being late for work if this is confirmed, for example, by the corresponding notes of arrival and departure of employees made electronically. But even in these situations, the employer and its representatives actively draw up reports on violations committed by the employee.

Within the meaning of Art. 76 of the Labor Code of the Russian Federation, not allowing an employee to work means removing him from work, which is permitted only in the cases provided for in this article. The list of grounds for removing an employee from work is closed and is not subject to broad interpretation.

If an employee was suspended by employees providing security for the enterprise who do not have an employment relationship with the employer, this is illegal even if there are grounds provided for in Art. 76 of the Labor Code of the Russian Federation, since in this case the suspension from work was not carried out by the employer, as provided for by labor legislation, but by an outsider.

So, the last day of work was 02/11/2008, i.e. the day before K. went to work, the day when K. was incapacitated and was absent from work for this reason. But even if the order to dismiss K. from work had indicated 02/12/2008 as the last day of his work, such dismissal would still have been carried out in violation of the requirements of Part 3 of Art. 84.1 of the Labor Code of the Russian Federation, since the day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases when the employee did not actually work, but in accordance with the Labor Code of the Russian Federation or other federal law, he retained his place of work (position). K.’s last day of work in the event of his dismissal on 02/14/2008 could only be 02/14/2008, since from February 12 to February 14, 2008 he was in an employment relationship with the employer and during the specified period (from February 12 to 14 ) was illegally deprived of the opportunity to work.

This is confirmed by the recognition of the employer’s representative’s claims for K.’s reinstatement at work and his statement (when objecting to the satisfaction of claims for reimbursement of expenses for the representative’s services) about the indisputability of his claims.

The cancellation of the order to dismiss K. could otherwise have affected the completion of the trial. In particular, K.’s reinstatement at work by the employer himself would prevent the court from making a decision on K.’s reinstatement at work.

In addition, the employer could reduce its risks, since the average earnings during forced absence could be lower if the employer issued its order to reinstate K. at work earlier than the court decision.

Footnotes

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Dismissal for absenteeism

An employment contract can be terminated by the employer in the event of a single gross violation by the employee of labor duties: absenteeism, that is, absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration, as well as in the event of absence from work place without good reason for more than four hours in a row during a working day (shift) - paragraphs. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation.

Explanations of the Supreme Court of the Russian Federation on dismissal for absenteeism

Judicial practice of dismissal for absenteeism

1. Satisfying the demands for reinstatement at work, the court took into account the fact that the plaintiff worked for the defendant for 45 years, is a labor veteran, and was not brought to disciplinary liability during the entire period of work, therefore the court came to the conclusion that the disciplinary offense on the part of the plaintiff took place, however, when he was dismissed for absenteeism, the administration did not take into account the provisions of Article 192 of the Labor Code of the Russian Federation

The plaintiff was unable to go to work due to health reasons; he had a heart attack. The next day he went to the doctor, where he was given a sick leave certificate, first for outpatient treatment, and then he was prescribed inpatient treatment.

The court came to the conclusion that the demands for reinstatement are legal and justified; the demands for recovery of wages during forced absence are also subject to satisfaction (Determination of the Moscow Regional Court dated April 5, 2011 in case No. 33-7511).

2. The plaintiff was supposed to be on a business trip for 5 days, but left the city earlier, that is, he was absent from the workplace for more than two days. The traveling nature of the plaintiff’s work does not give him the right to freely move around the country during working hours at the time when the plaintiff was sent on a business trip to a specific city for a certain period of time

D. filed a lawsuit against the LLC for reinstatement at work, and asked the court to reinstate him in the position of Deputy General Director for Human Resources, to recover average earnings for the period of forced absence, and compensation for moral damages.

The claim was rejected, since it was proven that the plaintiff was supposed to be in Yaroslavl until June 23, 2010, but instead left the city on June 21, 2010, and went to work in St. Petersburg only on June 24, 2010, then is absent from work for more than two days (dated March 28, 2011 N 33-4247/2011).

3. The court declared the dismissal for absenteeism illegal, indicating that since the employment contract did not stipulate the plaintiff’s specific workplace, in accordance with Art. 209 of the Labor Code of the Russian Federation is considered to be the place where the plaintiff should have been or where he needs to arrive in connection with his work

The court of first instance ruled: to reinstate the plaintiff in his position, to recover compensation for moral damage in favor of the plaintiff in the amount of 20,000 rubles.

The court stated the following. From the case materials, it is clear that the plaintiff’s job responsibilities are related to the performance of work not only in the office, but also outside it. On October 27, 2010, the plaintiff performed duties in the city of Solikamsk, participating in the inspection of damaged cargo, and then was summoned by the Department of Internal Affairs of the city of Perm. Since the employment contract did not stipulate the plaintiff’s specific workplace, in accordance with Art. 209 of the Labor Code of the Russian Federation is considered to be the place where the plaintiff should have been or where he needs to arrive in connection with his work. Therefore, the court, correctly guided by Part 6 of Art. 209 of the Labor Code of the Russian Federation, came to the conclusion that the defendant’s arguments about the plaintiff’s absence from the workplace without good reason were unfounded (Cassation ruling of the Perm Regional Court dated March 16, 2011 in case No. 33-2325).

4. The court correctly determined the circumstances of the employee’s absence from the workplace and came to the conclusion that there were no grounds for dismissing the employee for absenteeism

N. filed a lawsuit against MUZHEP-12 for reinstatement at work, citing in support of the claim that she was illegally dismissed from her position as a janitor for absenteeism, while at that time she was sent by her employer to a medical commission.

The claim was satisfied. The court found that the administration of MUZHEP-12 issued N. a referral to undergo a mandatory medical examination. At the same time, based on the provisions of Art. 212 of the Labor Code of the Russian Federation, has no legal significance whether this medical examination was preliminary (Article 69 of the Labor Code of the Russian Federation) or periodic (Article 213 of the Labor Code of the Russian Federation). In any case, the plaintiff could not be allowed to perform her job duties without undergoing a medical examination.

Thus, having established the validity of the reasons for the plaintiff’s absence from work from December 12 to 19, 2006, also taking into account that N. underwent a medical examination within a reasonable time, the court rightfully recognized her dismissal under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation for absenteeism without good reason is illegal and, guided by the requirements of Art. 394 of the Labor Code of the Russian Federation, decided to reinstate her at work (see Generalization (review) of practice

5. The court recognized the dismissal for absenteeism as justified, because the plaintiff was not deprived of the obligation to appear at his workplace after the end of his interrogation by law enforcement agencies. In addition, the plaintiff had a real opportunity to inform the employer about the reasons for his absence from the workplace

The plaintiff asked the court to recognize his visit to law enforcement agencies on May 28, 2010 and June 30, 2010 as a valid reason for absence from work, to cancel the order imposing a disciplinary sanction for absenteeism, to reinstate him in his position, to recover wages from the defendant for the period of forced absence .

The claim was rejected, since it was established that the plaintiff was actually called to the premises of the law enforcement agency on June 30, 2010 at 09.30, but did not appear by the specified time, in fact he was in the premises of the law enforcement agency on June 30, 2010 from 15.00. 05 min. until 16 o'clock 15 minutes.

The plaintiff's absence from the workplace on May 28, 2010 and throughout the entire working day on June 30, 2010, without good reason, indicates that the employer has legal grounds for dismissing the employee for absenteeism under paragraphs. "a" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation (Determination of the St. Petersburg City Court dated March 1, 2011 N 33-2871/2011).

6. The court declared the repeated dismissal of the plaintiff for absenteeism illegal, since the employer did not indicate in the order that, on the basis of a court decision, he was reinstating the plaintiff to work, in what position and with what work schedule, taking into account the ITU conclusion on loss of professional ability to work

The plaintiff indicated that she was fired by the defendant on August 28, 2009 for absenteeism, but by a court decision the dismissal was declared illegal and she was reinstated at work. On 02/15/2010, the plaintiff was again dismissed for absenteeism due to failure to show up for work in the period from 01/14/2010 to 02/04/2010.

The court satisfied the claims and decided to recognize the wording of V.’s dismissal under paragraph 6 of paragraphs as illegal. "a" st. 81 of the Labor Code of the Russian Federation (truancy), change the specified wording of dismissal to dismissal of one’s own free will, that is, Art. 80 Labor Code of the Russian Federation. At the same time, the court indicated that the court decision to reinstate the employee at work is subject to immediate execution, regardless of the fact that this execution is not recorded in the operative part of the decision. This follows from the provisions of Art. 396 Labor Code of the Russian Federation. However, from the materials of the case, it is not clear that the employer fulfilled it in full immediately after the court decision was made, that is, ensured the plaintiff fulfilled her labor duties and brought this to her attention. According to the order dated January 14, 2010, the employer only canceled the order to dismiss the plaintiff dated August 28, 2009; this order does not contain a record that the plaintiff was reinstated as a bricklayer and with what functional responsibilities; in addition, this order was not brought to the attention of the employee (Cassation ruling of the St. Petersburg City Court dated February 14, 2011 No. 33-1934/2011).

7. The defendant’s failure to provide evidence of the employee’s absence from work without good reason led to the cancellation of the decision. The defendant did not provide the court with evidence that the plaintiff was absent from work without good reason during the disputed period.

8. Disciplinary action must correspond to the gravity of the offense committed. The court did not take into account the long length of service at the enterprise, that previously no disciplinary sanctions were imposed on this employee, he has a dependent minor son, and receives child benefits as a single mother

The plaintiff was dismissed under sub. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation (for absence from the workplace without good reason for more than four hours in a row. She asked to recognize the dismissal as illegal, since she was absent from the workplace for a good reason, and as a result: to reinstate her at work, to recover the average salary for the entire period of forced absence, compensate for moral damage.

In overturning the court's decision, the judicial panel stated the following. The court reasonably concluded that the plaintiff was absent from her workplace without good reason for more than four hours in a row on January 21, 2004. However, the court did not take into account the requirements of paragraph 53 of Resolution No. 2 of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” that the employer must provide evidence indicating not only that the employee committed disciplinary action misconduct, but also that when imposing a penalty, the severity of this offense, the circumstances under which it was committed, the employee’s previous behavior, and his attitude to work were taken into account. If, when considering the case for reinstatement at work, the court comes to the conclusion that misconduct actually occurred, but the dismissal was made without taking into account the above circumstances, the claim may be satisfied (extract from the decision of the Judicial Collegium for Civil Cases No. 33-2619 of August 4, 2004 ; (26), 2006)

9. Failure by the employer to provide evidence of the legality of dismissal for absenteeism entails the plaintiff’s reinstatement at work or, at his request, changing the wording of the dismissal to dismissal at his own request.

By order, the plaintiff was dismissed from the position of foreman under clause 6 sub-clause. "a" st. 81 of the Labor Code of the Russian Federation for absenteeism.

Satisfying the plaintiff's demands, the judicial panel indicated that in March - April 2004 there was no work at RSU LLC and employees were called to work when there was volume of work. He carried out his duties, looked for work volumes, and worked at DSU facilities. The court came to the conclusion that the defendant legalized the dismissal of L. under clause 6 sub. "a" st. 81 of the Labor Code of the Russian Federation was not proven (extract from the ruling of the Judicial Collegium for Civil Cases No. 33-3047 dated September 1, 2004; Bulletin of Judicial Practice of the Omsk Regional Court No. 1 (26), 2006)

10. If there was evidence indicating that the employee was ill, that he was provided with medical care during this period, and that he had no motive for concealing the reason for absenteeism due to illness, the court had reason to be critical of the explanations of the defendant’s representative that the employee refused from giving written explanations and was familiarized with the dismissal order. Failure to clarify the reasons for the employee’s absence from work and the date of familiarization with the order led to the cancellation of the decision

Ch. filed a claim against OMUP for reinstatement at work. Dismissal under paragraphs. "a" clause 6 of Art. 81 of the Labor Code of the Russian Federation is considered illegal, since it works according to the approved schedule for each month. On October 31, 2003, after finishing his shift, he went home.

Satisfying the requirements, the judicial panel indicated that there was no written explanation from Ch. about the reasons for absenteeism from work. The court was presented with a copy of the emergency medical care station call card, according to which on November 3, 2003, Ch. was provided with medical care at home due to an exacerbation of his illness. At the same time, medical workers established the fact that his health condition had deteriorated approximately a week before the call.

On November 4, 2003, due to the exacerbation of Ch.’s disease, a sick leave was issued; on November 11, he was hospitalized in a hospital, where he remained until March 10, 2004. On March 9, 2004, the Bureau of Medical and Social Expertise established a second disability group in connection with the same disease.

If there was a body temperature or high blood pressure, indicating the presence of a disease, the driver could not be released on the flight by medical workers. In this connection, the argument of the defendant’s representative that Ch. was absent on these days should have been questioned. (Extract from the Determination of the Judicial Collegium for Civil Cases of the Omsk Regional Court No. 33-2145 dated July 7, 2004; Bulletin of Judicial Practice of the Omsk Regional Court No. 1 (26), 2006)

11. The court correctly concluded that the employer had the right to dismiss an employee for unauthorized use of a day off under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation (for absenteeism). The fact that the plaintiff took time off with the employer’s permission is not confirmed by the case materials

By order of December 5, 2006, T. was dismissed from her job under paragraph “a” of Part 6 of Art. 81 of the Labor Code of the Russian Federation - absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day), committed on October 27, 2006.

The claim for reinstatement at work was denied, because from the case materials it is clear that at the court hearing T. claimed that she had time off, and she took it on October 27, 2006 with the permission of her immediate superior B., therefore her dismissal for absenteeism is illegal. She did not write an application for time off with the permission of B. However, this statement of the plaintiff is unfounded, since it is not confirmed by the case materials. Thus, B., questioned as a witness at the court hearing, testified that the employee always writes an application for time off (see Generalization (review) of the practice of consideration of labor dispute cases by district courts of the Novgorod region for 2007).

12. Dismissal of the plaintiff under paragraphs. "a" clause 6 of Article 81 of the Labor Code of the Russian Federation, the court declared it illegal for absenteeism, the wording of the dismissal was changed to "dismissal at one's own request." The court refused to satisfy the claims for the recovery of average wages during forced absence, compensation for moral damage, since the defendant ceased his status as an entrepreneur

By order, the plaintiff, who works for individual entrepreneur V. as a salesperson, was dismissed under Art. 81 paragraphs 6 paragraphs "a" of the Labor Code of the Russian Federation for absenteeism without good reason.

The court came to the correct conclusion that her dismissal was illegal, since the defendant did not provide the court with evidence of the validity of her dismissal, and the fact of the plaintiff’s absenteeism without good reason was not proven by the defendant. The court also found a violation of the procedure for dismissing the plaintiff from work, since she was not given an explanation for the alleged violation of labor discipline. Since by the time the case was considered, the defendant had ceased his status as an entrepreneur without forming a legal entity, the court rightfully satisfied the plaintiff’s claims, recognizing her dismissal under Art. 81 clause 6 "a" of the Labor Code of the Russian Federation is illegal, in accordance with Art. 394 of the Labor Code of the Russian Federation changed the wording of her dismissal to “dismissal at her own request” (Determination of the Irkutsk Regional Court dated April 21, 2011 in case No. 33-3479/11).

13. The reasons for absence from work indicated by the plaintiff in her explanation were rightfully considered disrespectful by the employer, since the fact of the shortage and the criminal investigation into this fact, by virtue of Art. 21 of the Labor Code of the Russian Federation did not relieve the plaintiff from her duties to observe labor discipline, show up for work and conscientiously perform her labor duties

By order, B. was dismissed from her job under paragraphs. "a" part 6 art. 81 of the Labor Code of the Russian Federation for absenteeism. The claim to declare the dismissal illegal was denied. The court stated the following.

On August 7, 2003, after carrying out the next inventory, the plaintiff’s keys to the pavilion were taken away, and all the goods were removed from the pavilion. Disagreeing with the actions of management, the plaintiff did not show up for work on August 8, 2003.

The reasons for absence from work indicated by the plaintiff in her explanation were rightfully considered disrespectful by the employer.

The fact that the plaintiff’s keys to the pavilion, which was subsequently closed, could not be considered a valid reason for the plaintiff’s absence from work. Based on clause 2.3. employment contract, the plaintiff’s workplace was not the pavilion, but the Alyonushka trading house (as follows from the employment contract), but the plaintiff only went to work at the trading house on August 11, 2003. After which she was absent from work, although she did not have any obstacles to this.

The fact that, due to the discovery of a shortage of goods in pavilion No. 4, the plaintiff was suspended from work directly in this pavilion, also did not relieve her of the obligation to report to work at the Alyonushka Trading House (Generalization (review) of the practice of consideration by district courts of the Novgorod region labor dispute cases for 2007).

14. If the employment contract is terminated according to paragraphs. "a" clause 6 of Art. 81 Labor Code of the Russian Federation for absenteeism, it must be taken into account that dismissal on this basis is possible only if the absence was due to an unexcused reason; there are cases when employees challenge the illegality of their dismissal in the absence of a dismissal order; There are cases of incorrect application by the courts of the provisions of Part 1 of Art. 261 of the Labor Code of the Russian Federation, according to which termination of an employment contract at the initiative of the employer with pregnant women is not allowed, except in cases of liquidation of the organization or termination of activities by an individual entrepreneur. On dismissal under clause 6 of Art. 81 of the Labor Code of the Russian Federation (paragraphs “a”, “b”) (one-time gross violation of labor duties) see also “Review of the practice of consideration by the courts of the Kaliningrad region in 2008 of civil cases on reinstatement at work.”

ST 81 Labor Code of the Russian Federation.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

12) has become invalid;

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

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

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of workers.

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

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

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

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

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

Commentary to Art. 81 Labor Code of the Russian Federation

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

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

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

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

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

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

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

Employers are individual entrepreneurs in the sense of Art. 20 of the Labor Code of the Russian Federation are special subjects of law acting to achieve goals determined by law, including the production of profit, and, accordingly, are obliged in one form or another to carry out state registration (licensing) of their activities. For example, the entrepreneurial activity of a citizen as an individual entrepreneur or head of a farm is subject to state registration (Article 23 of the Civil Code of the Russian Federation); a special procedure is provided by law for acquiring the status of a lawyer (see Federal Law of May 31, 2002 No. 63-FZ “On advocacy and the legal profession in the Russian Federation”); Notaries operate on the basis of a license issued in accordance with the established procedure (Article 3 of the Fundamentals of the Legislation of the Russian Federation on Notaries of February 11, 1998 N 4462-1). Accordingly, the termination (or suspension) of the activities of this type of employer can serve as an independent basis for terminating an employment contract with employees in accordance with paragraph 1 of the commented article.

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

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

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

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

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

4. By virtue of clause 3 of the commented article 81 of the Labor Code of the Russian Federation, the inconsistency of an employee with the position held or the work performed may be a consequence of insufficient qualifications. The employee's insufficient qualification level must be confirmed by certification results.

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

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

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

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

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

Such violations include:

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

b) refusal of an employee, without good reason, to perform job duties in connection with a change in labor standards in accordance with the established procedure (see also the commentary to it), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the internal rules in force in the organization labor regulations (see). At the same time, refusal to continue work in connection with a change in the terms of the employment contract due to changes in organizational or technological working conditions is not a violation of labor discipline, but serves as a basis for termination of the employment contract in compliance with the procedure provided for;

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

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

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

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

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

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

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

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

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

The employer has the right to apply a disciplinary sanction to the employee even when the latter, before committing the offense, filed an application for termination of the employment contract on his own initiative, since the employment agreement in this case is terminated only after the expiration of the notice period for dismissal (paragraph 3, paragraph 33 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

An employee submitting a resignation letter of his own free will after committing an act that gives the employer grounds for applying disciplinary action against him, including dismissal, cannot be considered forced (see here).

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

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

Gross violations are:

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

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

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

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

c) for leaving work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the contract, as well as before the expiration of the two-week notice period (see Art.);

d) for leaving work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract (see Art. 80, and the commentary thereto);

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Termination of an employment contract due to the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provision of incomplete or unreliable information about his income, expenses, property and property obligations, or failure to provide or provision of knowingly incomplete or unreliable information about income , expenses, property and property-related obligations of their spouse and minor children (clause 7.1 of the commented Article 81 of the Labor Code of Russia) is a special case of dismissal of an employee due to loss of trust in him by the employer.

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

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

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

10. The commission of an immoral offense by an employee performing educational functions that is incompatible with the continuation of this work (clause 8 of the commented Article 81 of the Labor Code of the Russian Federation) is also a special basis for termination of the employment contract.

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

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

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

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

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

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

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

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

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

Illegal use of property involves its operation not in accordance with its functional purpose or to achieve goals that are outside the economic goals of the employer as the owner of the property. The basis for termination of an employment contract with these employees occurs due not only to loss or damage to property, but also to the loss of part of its value, i.e. wear (depreciation).

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

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

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

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

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

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

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

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

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

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

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

16. Among such cases are additional grounds for terminating an employment contract with the head of an organization and a member of its collegial executive body (see and commentary on them); (see Article 288 of the Labor Code of the Russian Federation and the commentary thereto), with an employee who is a foreign citizen, etc.

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

The established procedure provides:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When hiring an employee, management expects maximum results in the assigned area of ​​activity, but the expectations are not always justified. There may be situations when an employee does not go to work without any good reason. If the fact of absenteeism is proven, the employer has the right to part with the negligent employee, based on the article of the Labor Code related to dismissal on the basis of absenteeism.

A disciplinary sanction is brought against a truant worker only if an unjustified reason for a long absence from work is established. In addition, the law provides for a number of circumstances that will not allow dismissal for absenteeism, even if it becomes obvious that the employer is right.

To ensure that dismissal for absenteeism does not lead to unpleasant consequences and proceedings with supervisory authorities, the procedure should be carried out in strict accordance with current labor legislation.

The process of parting with a truant must be formalized in accordance with the Labor Code and the Resolution “On the approval of documents for labor accounting and payments.”

In 2018, personnel workers and enterprise management must know how dismissal is carried out in such cases and coordinate their actions with the following articles of the Labor Code: 81, 140, 142, 192-193,261, 392.

The code contains language defining the grounds for dismissal for absenteeism, but in reality, it can be quite difficult to prove the objectivity and legality of dismissal, and truants themselves do not agree with the circumstances of dismissal, preferring to challenge the employer’s decision and interfere in every possible way.

When deciding to dismiss under an article for absenteeism, HR department employees must clearly understand the possible consequences and strictly adhere to the provisions of the law in order to avoid further claims. Each enterprise should develop step-by-step instructions for actions in the event that it is necessary to dismiss a truant under the article.

Definition of truancy

First of all, it is necessary to understand which of the employee’s actions can be regarded as absenteeism, and, therefore, can become grounds for dismissal under Art. 81 TK.

This article (clause 6, part 1) clarifies the definition:

Absenteeism can be considered an employee’s absence from work for at least 4 hours in a row, or complete absence from work, regardless of the length of the shift or working day, provided that the reason for the absence was not recognized as valid.

The simplest cases of absenteeism include situations where an employee does not show up for work after making a unilateral decision to terminate the employment relationship with the employer, whom the employee did not notify of the fact of his resignation.

In addition to the unilateral decision to leave, the following patterns can be classified as classic truancy:

• the employee personally decided to use time off without notifying the employer and without agreeing on this time off with management;
• use of regular leave (annual or additional) outside the schedule and in the absence of a visa for the immediate superiors;
• refusal to work on the eve of dismissal at one's own request.

It is enough for the enterprise administration to record one fact of such violations in order to have the right to use the article for dismissal due to absenteeism.

Actions on the part of the employer

The supervisor must contact the employee to determine the reasons for absence. If this cannot be done, a registered letter is sent to a known residential address, which sets out the requirement to provide explanations regarding the reasons for absence from work.

The citizen is given a two-day period to respond to the employer’s administration, during which he is obliged to submit an explanatory note.

If the letter is returned with a note that the citizen is absent from the specified address, the employer must contact neighbors or the police station in order to find out the whereabouts of the employee.

This measure is necessary, because if an employee is detected and compelling reasons are provided for the person’s absence from the workplace, the employee is subject to full reinstatement through the court.

Thus, a mandatory condition for dismissal under the article for absenteeism will be the presentation of conclusive evidence of the very fact of absenteeism without a good reason. The following documents will help document the fact that an employee is absent from the workplace:

1. Entry in the report card.
2. A document drawn up establishing the fact of the employee’s absence.
3. A notice sent to the employee's home address asking him to return to work.

By following this step-by-step procedure, the administration will be able to fire a truant without any undesirable consequences in the future:

1. Obtaining grounds for dismissal - drawing up an absence certificate. The act is drawn up in free form, but must necessarily reflect information about the specific day, time, and duration of absence.
2. Certification of the act by witnesses.
3. If there are several absences, a report is signed for each day of absence.
4. Explanatory Requirement. If an employee appears at the workplace, the administration requires an explanation for the unapproved absence
5. Within two days after receiving the request to provide an explanatory note, the employee prepares a note outlining the reasons for his absence.
6. If the note is not provided within the required period, this is recorded in the presence of three witnesses in the relevant act.
7. The manager prepares a memo addressed to the director of the organization with a note from the employee attached.
8. If the reason for non-appearance is considered disrespectful, an order is issued in the strictly established T-8 form.

This order serves as the basis for further dismissal procedures. Because any deviation from the standard established by law will allow it to be challenged in court. When drawing up and issuing an order, follow the following instructions:

1. The date of termination of the employment agreement must be reflected.
2. The reason for dismissal is indicated.
3. The order mentions the documents that served as confirmation of absenteeism.

Three days are allotted for the employee to familiarize himself with the order, followed by registration of the order in a special personnel register. Changes are made to the work time sheet: the NN mark changes to PR, which records the fact of absenteeism.

It is very important to fire a negligent employee correctly by making correct entries in the employment record:

• in the first column indicate the entry number in order;
• in the second - the date of the event;
• the third column is filled in with information about dismissal indicating Article 81 of the Labor Code of the Russian Federation;
• in the fourth indicate the number and date of the order.

After completion of the registration, the employee is given the latest documents, payroll documents, and if the employee does not show up for work, if it is impossible to hand over the documents, they are sent to the address of the dismissed person by registered mail.

Before giving the work record to the dismissed person, the records are duplicated into a personal card in the T-2 form and certified by the employee’s signature. Each entry from the labor record must be reflected in the card and certified by the signature of the dismissed employee.

According to Article 81 of the Labor Code (clause a, clause 6.p.1), as a basis for dismissal, an entry is made in the labor report about dismissal “in connection with a single gross violation of labor duties.” To avoid problems with the Social Insurance Fund in the future, a copy is made of the work book and transferred to the archive.

Closing events

The issuance of the employment record with the last notice of dismissal made and the payment of the final payment is made on the day the contract was terminated.

If the dismissal date falls on a non-working day, the calculation is made on the first day after a weekend or holiday.

The final payment to the employee is subject to the amount determined on the basis of Article 140 of the labor legislation. Based on Article 127, unused vacation days are also subject to monetary compensation.

If the issuance of a work permit on the last working day is impossible (the employee did not show up for work or refused to receive it), an official notice is sent to the employee, and a report is drawn up at work indicating the impossibility of transferring documents. Subsequently, if the employee wants to return his work permit, the employer is obliged to provide it within three days from the moment of registration of the corresponding application of the dismissed person.

In addition to the work record book, the former employee must submit certificates of earnings for previous periods 2-NDFL and others established by paragraph 3, part 2, article 4.1 of Federal Law No. 255 of December 29, 2006.

In accordance with subparagraph "b" of paragraph 6 of part 1 of Art. 81 Labor Code In the Russian Federation, termination of an employment contract is provided only if an employee appears at work in a state of alcohol, narcotic or other toxic intoxication.

When considering civil cases on the reinstatement of an employee whose employment contract was terminated at the initiative of the employer, in particular, when resolving a dispute about the termination of an employment contract in the Russian Federation, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissing an employee rests with the employer.

The reasons for initiating measures provided for by law to terminate an employment contract are facts and information about the consumption of alcoholic beverages, the use of narcotic or toxic substances by an employee of an organization or enterprise, an employee who was in a state of alcoholic, narcotic or other toxic intoxication during working hours at the place of performance of work duties, either on the territory of this organization, or he was located on the territory of the facility, where, on behalf of the employer, he had to perform a labor function.

In accordance with paragraph 42 of 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”, the state of alcoholic or narcotic or other toxic intoxication can be confirmed by both a medical report and other types of evidence , which must be assessed accordingly by the court resolving a dispute regarding the termination of an employment contract based on subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Due to the above, the employer’s primary task is to obtain evidence that the employee is in a state of alcohol, drug or other toxic intoxication. If an employee contests dismissal due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code RF, its primary task is to challenge the relevant evidence presented by the employer to the court.

Since March 26, 2016, the procedure for conducting a medical examination for intoxication of an employee, as well as all other citizens of the Russian Federation, has been determined by order of the Ministry of Health of the Russian Federation dated December 18, 2015 No. 933n “On the procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic)" and includes: a) examination by a medical specialist (paramedic); b) examination of exhaled air for the presence of alcohol; c) determination of the presence of psychoactive substances in urine; d) study of the level of psychoactive substances in urine; e) study of the level of psychoactive substances in the blood.

A medical examination of an employee who appears at work with signs of intoxication is carried out on the basis of a referral from the employer.

After the personal data of the person being examined is indicated in the Certificate, the medical examination in all cases begins with the first examination of exhaled air for the presence of alcohol, after which a medical specialist (paramedic) collects complaints, anamnesis and examination in order to identify clinical signs of intoxication, provided for in Appendix No. 2 to The procedure for conducting a medical examination for intoxication (alcohol, drugs or other toxic).

During a medical examination of an employee and in the presence of at least three clinical signs of intoxication provided for in Appendix No. 2 to the Procedure for conducting a medical examination for intoxication (alcohol, narcotic or other toxic), and a negative result of the first or repeated test of exhaled air for the presence of alcohol, a biological sample is taken object (urine, blood) for referral for chemical and toxicological testing in order to determine the drugs (substances) or their metabolites (except for alcohol) that caused intoxication.

Based on the results of examinations and instrumental and laboratory tests carried out as part of the medical examination, one of the following medical opinions is issued on the condition of the person being examined at the time of the medical examination:
1) a state of intoxication has been established;
2) the state of intoxication has not been established;
3) the person being examined (the legal representative of the person being examined) refused a medical examination.

It is obvious that the examination of medical documents and other types of evidence of the state of alcoholic or narcotic or other toxic intoxication and the correct assessment of the medical report and evidence in general occupy a key place in resolving a dispute regarding the termination of an employment contract due to subparagraph "b" of paragraph 6 of part one of Article 81 of the Labor Code Russian Federation.

Our specialists will help you timely and correctly prepare for court hearings to resolve a dispute regarding the termination of an employment contract under subparagraph "b" of paragraph 6 of part 1 of Article 81 of the Labor Code Russian Federation, will conduct a detailed and competent analysis of the case materials and provide the necessary qualified assistance in drawing up the required documents for the court.

Dismissal under Article 81

Any company can at some point cease to exist. According to Article 81 of the Labor Code, the head of an organization may initiate the termination of an employment contract. However, there are some points that the employer must comply with.

Labor Code 81 article dismissal

Dismissal under Article 81 – Labor Code

Article, which is assigned number 81 in the labor code, states that the employment contract is terminated at the initiative of the employer. According to the labor code, dismissal under Article 81 can be divided into several separate cases. They can affect any employee, regardless of what position he holds. On the one hand, it seems that with the help of this article, the employer can get rid of any employee he does not like. In reality, everything may look completely different. The first paragraph of this article states that an entrepreneur can initiate the termination of an employment contract if the organization ceases its activities. Before terminating the contract, the entrepreneur must follow certain rules. First, he must notify the employee of the upcoming layoff. This must be done at least two weeks before the dismissal date. If the employee agrees, he can be fired before the date of dismissal occurs.

An entrepreneur can fire an employee who is not suitable for the position he occupies. The reason for the reduction may also be the insufficiently high level of qualifications of the employee.

Dismissal due to reduction Article 81

Dismissal due to reduction – Article 81

According to Article 81, when dismissing due to reduction, the employer must take into account the following points:

• Before an employee is dismissed, he must be offered another position or vacancy;
• The reduction may occur in accordance with the certification;
• It is better to establish qualification requirements in advance in the job description.

If the employer offers another vacancy, then it is worth considering the fact that the new position may be associated with lower qualifications. Lower wages may also be available. In rarer situations, an employee may have to move to another location. The company's management is not obliged to offer higher-paying jobs.

Paragraph 5 of the article states that an employee can be fired for repeatedly violating his work duties. If there is more than one such case, the employee may be fired in accordance with this article. At the same time, the employer must comply with certain rules. If more than a month has passed since the employee violated his labor obligations, then the employer does not have the right to punish him by dismissal. Another condition is that the employee must commit another offense no later than 12 months after the first. In order to prove an employee’s violation, the obligations must be specified in the labor instructions.

Dismissal under Article 81

Dismissal Article 81 paragraph 6

In some cases, an employer may fire an employee even if he has not committed any previous misconduct. Dismissal under Article 81, paragraph 6 may occur if the employee committed one of the following violations:

• Arrived at the place of work under the influence of alcohol or drugs;
• The employee grossly violated one or more labor safety rules;
• Absenteeism;
• Theft;
• The employee disclosed information that was of a commercial nature. The employee should have received this information during his working life.

The violation must be recorded, otherwise it cannot serve as a basis for reduction. To do this, it is necessary to draw up an appropriate act. If any misconduct has been committed, the employee must provide an explanation in writing. The employee has 2 days to do this. An employer may dismiss an employee only if the misconduct is not justifiable or the justifications are not convincing. In the event of a layoff in accordance with paragraph 6 of the article, the employee cannot count on monetary compensation. The only compensation is for days of unused vacation. Dismissal under this clause also presupposes the fact that