Labor law termination of an employment contract. Legal grounds for termination of an employment contract: different cases. Dismissal of an employee due to a change in essential working conditions

The Labor Code provides for a number of grounds for termination employment contract, referred to in article 77. According to it, the employer and employee may terminate their employment relationship at the initiative of either party. In this article, we will look at exactly how the termination of an employment contract can occur.

General order

According to the Labor Code, when terminating an employment contract, an order or instruction from the employer must be issued, with which the employee must be familiarized by signature. If the employee refuses to sign the document, a corresponding entry is made on the order. A copy of the order or order, at the request of the employee, can be issued to him in his hands.

In any case, the day of termination of the employment contract is the last working day of the employee (with the exception of cases when the employee did not actually work, but his job was retained).

The employer is obliged to make an entry in the work book in full accordance with the Labor Code. This means that the wording must necessarily indicate the article, paragraph or part of the article.

On the last working day - the day of dismissal - the employer is obliged to give the employee a work book and full payment. If the employee did not appear for the documents, a notification should be sent to him about the need to receive a work book. If an employee who has not received a book on time requests that it be given to him, the employer is obliged to do this within three days from the date of the request (meaning three working days).

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

If the employer and employee decide to terminate their employment relationship by agreement of the parties, then the employee must submit an application with a request to dismiss him in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. Such dismissal differs significantly from dismissal own will. For example, if an employee, after being fired, registers as unemployed, the allowance will be determined for him not on the basis of the minimum wage, as for the one who was dismissed of his own free will, but on the basis of the official salary at the last place of work.

An agreement on termination of an employment contract is concluded in writing and, in fact, is additional agreement attached to the employment contract. It is concluded between the employee and the employer in the absence of mutual claims. On behalf of the employer, the agreement can be signed by a human resources inspector or other authorized person. Such an agreement, as a rule, satisfies the interests of the employee. For example, he may receive compensation for termination of the employment contract, or the administration of the enterprise will refuse to withhold the cost of training the employee (if training took place).

Termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation)

If an employee works under a fixed-term employment contract, then three days before the deadline for its expiration - the actual dismissal - the employer must notify the employee in writing. This means that the employee must be given or mailed a notice of termination of the employment contract. A fixed term contract can be:

• to perform the duties of a temporarily absent employee (such an agreement must be terminated simultaneously with the release of this employee to his place of work);
• for the duration of a certain work (such an agreement is terminated upon completion of the work specified in it);
• performance contract seasonal work(this contract is terminated at the end of the season).

But there is one subtlety in the issue of terminating a fixed-term contract: if a pregnant woman works under it, then the term of such an agreement is extended until she has the right to maternity leave.

If an employee working under a fixed-term contract wants to quit of his own free will, then he must submit an application addressed to the manager (that is, notify him) three days before the date of dismissal.

Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation)

Dismissal at the initiative of an employee is nothing more than a dismissal of one's own free will. The employee has the right to apply for resignation of his own free will at any time, at least two weeks before the date of dismissal, and the head of the organization - one month before. The reason for such dismissal may be any personal circumstances. But if the employee quits due to:

• with admission to an educational institution;
• retirement;
• moving to another area;
• due to violations of labor laws by the employer;
• he has the right to be fired without work.

During the working time, the employee has the right to change his mind and withdraw his application. In this case, he will continue to work in his place, unless, of course, a new employee has already been hired for him, who cannot be refused employment for some reason.

If the employee nevertheless quits, then on the last working day the employer is obliged to pay the employee in full, paying him the due wages, compensation, vacation pay, and also issue all required documents and workbook.

An employee who has not withdrawn his application, but does not insist on dismissal, and the employer did not calculate it on time and did not issue documents, is considered to continue working, and his application for dismissal is recognized as invalid.

Termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

The employer, like the employee, has the right to terminate the employment contract on his own initiative. Grounds for termination may be general or additional. The general ones apply to all employment contracts, and the additional ones apply to employment contracts for certain categories of employees. Termination of an employment contract on general grounds can occur in several cases:

• upon liquidation of the enterprise;
• when reducing the staff or number of employees;
• due to the inconsistency of the employee with the position held (due to low qualification, which is confirmed by attestation documents, for health reasons - confirmed by a medical report);
• due to a gross single violation by an employee job duties(truancy, going to work in a state of alcohol, drug or toxic poisoning, disclosure of state or commercial secrets);
• due to repeated non-fulfillment of labor duties (if the employee already has disciplinary sanctions);
• committing theft, embezzlement, deliberate destruction and damage to property;
• violations of labor protection requirements that caused an accident, accident, catastrophe or created a real threat to them;
• for committing immoral acts (for teachers);
• in case of loss of confidence (for financial workers);
• for making unreasonable decisions that led to the misuse of property (for managers, deputy heads, chief accountants);
• for providing false documents when concluding an employment contract.

It is worth noting that in order to terminate an employment contract with an employee on one of these grounds, the employer must have supporting documents. This means that the appearance at work in a state of intoxication must be recorded by an act confirming the presence of the employee at the workplace, and a medical report.

An employer cannot dismiss an employee who is on sick leave or vacation (an exception is the liquidation of an enterprise).

If the employer is an individual entrepreneur, then upon termination of his activity, he may terminate employment contracts with his employees. In this case, the basis for terminating the employment contract will be an extract from the USRIP.

Additional grounds for terminating an employment contract

Termination of the employment contract by the employer is also possible on additional grounds, which are specified in other regulations. For example, pedagogical workers can be fired for using inappropriate methods of education (these include physical or psychological violence) or violating the Charter of an educational institution (FZ “On Education”), and civil servants for disclosing information constituting a state secret or occupation entrepreneurial activity(FZ "On public service»).

With whom it is impossible to terminate the employment contract at the initiative of the employer?

• pregnant women;
• women who have children under three years of age;
• single mothers who have children under the age of 14 or have a disabled child under 18;
• other persons who are raising children without a mother.

Dismissal in the order of transfer

Such a dismissal can only be made if there is a corresponding application from the employee and confirmation from another employer of consent to hire him (this may be letter of guarantee or a signed job application). If we are talking about election to any elective position, then the employee must provide a document confirming the election.

Dismissal of an employee due to refusal to continue work (Article 75 of the Labor Code of the Russian Federation)

Such a dismissal is possible if there has been a change in the ownership of the organization's property, a reorganization or a change in the jurisdiction of the institution. In this case, the employee simply submits a letter of resignation. This rule does not apply to the chief accountant, head and his deputy. An employment contract with them can be terminated at the initiative of the new owner of the organization's property within three months after the property rights arise for him.

Dismissal of an employee due to a change in essential working conditions

In practice, situations often arise when, when organizational or technological working conditions change, the terms of the employment contract also change, but without a fundamental change in the labor function. The employee must be notified of such changes in writing two months prior to their introduction. If the employee is not satisfied with the new conditions, the employer is obliged to offer him another job (the offer is also made in writing), which corresponds to his qualifications and state of health. If there is no such work, and the employee does not agree to work in the changed conditions, the employment contract is terminated (Article 73 of the Labor Code of the Russian Federation).

Sometimes changes in working conditions can lead to mass layoffs. In these cases, part-time work is possible, which can be introduced in agreement with the trade union for up to six months. If the employee refuses to work in the new conditions, then the termination of the contract occurs in accordance with Article 81 of the Labor Code of the Russian Federation.

Dismissal for health reasons

The employee has the right to apply for other work in accordance with his state of health, which must be confirmed by medical documents. But if the organization does not have a suitable job or the employee refuses to transfer, then the termination of the employment contract occurs in accordance with article 77, clause 8 of the Labor Code of the Russian Federation. The documents must include a medical report, an employee's statement about his transfer to another job and documents confirming the absence of a suitable job (or the employee's refusal to transfer to a specific job).

Termination of the employment contract in connection with the relocation of the employer to another locality

It happens that the owner of the enterprise transfers production to another area. In this case, the employer is obliged to notify the employees in writing about the transfer of production, and upon receipt of a refusal to transfer together with the organization, terminate the employment contract with those who refused.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation)

The grounds for terminating an employment contract with the wording “due to circumstances beyond the control of the parties” can be very different, for example:

• conscription;
• reinstatement of the former employee (by court order or decision of the labor inspectorate);
• the inability to transfer to another job at the request of the employee;
• non-election to office;
• recognition of an employee as disabled according to medical documents;
• condemnation of an employee to punishment (by a court decision), disqualification, administrative punishment, excluding the possibility for the employee to perform his duties;
• the death of an employee or his unknown absence;
• emergency circumstances (natural disasters, catastrophes, wars, epidemics, accidents), which are recognized by the decision of the Government of the Russian Federation.

The procedure for terminating an employment contract in this case requires the provision of documentary evidence of the occurrence of circumstances, and then, on the basis of the documents submitted (summon from the military registration and enlistment office, death certificate, court decision, medical report, etc.), an order is issued to terminate the employment contract.

But in some cases, the employer may offer the employee a transfer to another position. For example, when a former employee is reinstated by a court decision, the employer has the right to offer the employee who worked in his place another job.

Termination of an employment contract due to violations during its conclusion (Article 84 of the Labor Code of the Russian Federation)

Sometimes the labor inspectorate reveals violations that were made when concluding an employment contract. Such contracts must be terminated by law. The reasons can be very different, for example:

• the contract was concluded with an employee who, by a court decision, is prohibited from holding this position or performing specific work (in this case, the employee must first be offered another job in writing, and if he refuses, terminate the employment contract with him);
• the contract was concluded for the performance of work that is contraindicated for the employee for health reasons (there must be a medical certificate);
• the contract was concluded with an employee without specialized education (if, in accordance with regulatory enactments, the position or type of work performed by the employee requires special education of a certain level).

In any of these cases, the employer who allowed the conclusion of an unauthorized contract is obliged to pay the employee severance pay in the amount of average earnings. The exception is the situation when the employee misled the employer. In this case, the contract with the employee is terminated at the initiative of the employer (provision of false documents).

Peculiarities of termination of an employment contract with foreign citizens

If the employer cooperated with a foreign citizen, then within three working days after the termination of the employment contract with him, he must report this to the territorial body of the FMS, the employment center and the territorial tax authority.

The general procedure for processing the termination of an employment contract is regulated. This article describes the algorithm of actions that must be followed.

The termination of the employment contract is formalized by the order (instruction) of the employer. Commonly used unified form which is approved.

The employee must be familiar with the order against signature. A certified copy of the order can be handed over to the employee at the request of the employee.

By general rules The day of termination of the employment contract is always the last day of the employee's work, except in cases where the employee did not actually work, but the place of work was retained for him.

On the day of termination of the employment contract, the employer must:

• issue a work book to the employee (if the employee is not at work on the day of dismissal, then a notification is sent to him about the need to pick up the work book or agree to send it by mail);
• make a calculation with him in accordance with;
• at the written request of the employee, issue certified copies of documents related to work.

An entry in the work book on the basis and reason for the termination of the employment contract is made in strict accordance with the wording of the Labor Code or other federal law, with reference to the relevant article, part of the article, paragraph of the article.

There has long been a dispute among HR professionals as to which wording to use: “employee fired”, “employment contract terminated” or “employment contract terminated”? The Labor Code does not give an unambiguous answer to this question, so employers often choose the wording at their discretion.

Grounds for dismissal of an employee

1. Dismissal during probationary period

The establishment of a probationary period for employment is regulated by Art. 70 TK. It provides a list of employees who are not subject to a probationary period:

• persons elected by competition for the relevant position held in the manner prescribed by labor law and other regulatory legal acts containing norms labor law;
• pregnant women and women with children under the age of one and a half years;
• persons under the age of 18;
• persons who have received secondary vocational education or higher education according to state-accredited educational programs and for the first time entering work in the received specialty within one year from the date of receipt vocational education appropriate level;
• persons elected to an elective position for paid work;
• persons invited to work in the order of transfer from another employer as agreed between employers;
• persons concluding an employment contract for a period of up to two months;
• to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.

The trial period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions organizations - six months, unless otherwise specified federal law.

During the probationary period, personnel officers must record any deviations in the work of a new employee using memoranda, acts. When the trial period ends and the employer evaluates the results of the newcomer unsatisfactorily, he must document the validity of his decision.

The employer can terminate the employment contract before the expiration of the test period with an unsatisfactory result, but he will need to notify the employee in writing (in the notification format) no later than three days, indicating the reasons that served as the basis for such a decision. At the same time, you need to be prepared for the fact that the employee has the right to appeal this decision in court.

If the employee refuses to sign the notification, an appropriate act is drawn up, which records the fact that the employee has read the notification and refuses to sign it. Based on the notification, an order T-8 is issued to terminate the employment contract. If the employee refuses to sign the order, then at the bottom of the order the personnel officer makes an inscription by hand that the employee was familiarized with the order, but refused to sign, or an appropriate act is drawn up. In any case, it is important to record the fact that the employee is familiar with the order.

The employee can also terminate the employment contract at his own request during the probationary period. To do this, he needs to submit an application, while he does not have to indicate the reason for dismissal. The notice period in this case, according to Art. 71 of the Labor Code, will be three calendar days. The dismissal itself is made on the basis (termination of the employment contract at the initiative of the employee).

2. Voluntary dismissal

Which article of the TC to focus on:.

The employee has the right to terminate the employment contract at his own request, but he must notify the employer in writing no later than two weeks in advance, unless another period is established by the Labor Code or other federal law. The specified period begins the next day after the employer receives the employee's application for dismissal. By agreement of the parties, this period may be reduced.

In cases where the dismissal at the initiative of the employee is due to the impossibility of continuing his work, the date of dismissal can be set independently. In Art. 80 of the Labor Code contains grounds for when such an option is possible: enrollment in educational institution, retirement, established violation of labor laws by the employer, etc. The practice of labor relations shows that there are many more reasons to reduce the notice period. For example, an illness that prevents the continuation of this work, if there is an appropriate medical certificate; moving to another area ().

Scroll good reasons- the grounds for dismissal on the day of filing an application can be fixed in the rules of the internal work schedule organization or collective agreement.

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, who, in accordance with the Labor Code and other federal laws, cannot be refused to conclude an employment contract. For example, in Art. 64 of the Labor Code states that it is forbidden to refuse to conclude an employment contract for employees invited in writing to work in the order of transfer from another employer.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer must:

• issue a work book to the employee;
• issue other documents related to work, at the written request of the employee;
• make a settlement with him.

How to draw up documents?

When an employee has the right to reduce the notice period, he writes the date of dismissal, which is mandatory for the employer, that is, he cannot unilaterally change this date on his own. Sometimes an employee is not entitled to a benefit, but asks to be fired earlier. For example, he writes a statement on May 15, and asks to be fired on May 19. In this case, the employer may act under Art. 80 TK. If he agrees to dismiss earlier, he accepts the application and issues an order. If he does not agree, he draws up a notice for the employee, in which he explains that he cannot accept such a statement on the basis of Art. 80, which requires a two-week notice and asks for a new application.

Based on the order, an entry is made in the work book (this is done on the last day before the issuance of the book, so that the employee immediately signs in the book of accounting for the movement of work books).

3. Dismissal by agreement of the parties

Which article of the TC to focus on:.

The basis for dismissal "by agreement of the parties" was included in the Labor Code in 2006, and Art. 78 of the Labor Code, which is devoted to this issue, contains only one sentence: "The employment contract can be terminated at any time by agreement of the parties to the employment contract." No matter how such a basis for dismissal is perceived, it is necessary to proceed first of all from the fact that the word “agreement” itself indicates a peaceful basis for termination of employment relations.

Despite the fact that the agreement is not provided for by the Labor Code, this is a very important document, since it specifies the conditions under which the parties terminate the employment relationship.

4. Dismissal due to the expiration of the employment contract

Which article of the TC to focus on:.

The grounds on which a fixed-term employment contract is concluded are spelled out in. Most often - for the duration of the performance of the duties of an absent employee, for whom the place of work is retained.

If a fixed-term employment contract is concluded with an employee, then the expiration date of the employment contract is associated with a certain date, which is prescribed in the contract itself. Three days before this date, the employer is obliged to notify the employee of the expiration of the period by means of a notice.

Sometimes it is impossible to determine the expiration date of the employment contract in advance, in which case the contract does not indicate the expiration date, but the condition. In this case, it is not necessary to notify the termination of the employment contract, since the very fact that the main employee enters work means the termination of the employment contract of the employee who replaced him.

In Art. 193 of the Labor Code spells out how to issue a disciplinary sanction. The algorithm of actions of the employer in this case is quite clear. First of all, when a disciplinary violation is discovered, an act is drawn up, which records the fact of the violation, all the circumstances under which it was discovered, the date, and witnesses. Then a written explanation is required from the employee (the deadline for providing the document is two business days). The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction. In the presence or absence of an explanation, the employer makes a decision based on his assessment of the employee's actions.

The deadlines for applying the penalty must be taken into account - no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. Disciplinary action cannot be applied later than six months from the date of the misdemeanor.

A memorandum on the commission of a disciplinary offense is sent to the name of the director (the person who can make decisions on this issue). And the employee is given a notice against signature with the requirement to provide a written explanatory note. If he does not provide it, then an act is drawn up.

If misconduct is proven, disciplinary action will be taken. With “soft” variants of violations, the employee is first reprimanded. At the same time, the order on the application of a disciplinary sanction contains links to all documents that confirm the grounds for applying the sanction.

7. Dismissal of a long-term absent employee

The legislation does not provide clear tools for formalizing such dismissals. Problems often arise because the employer does not know how to deal with a person's prolonged absence from work if there is no information about the reasons for this absence. At the same time, he does not have the right to dismiss an employee until the fact of violation of labor legislation is established.

The registration of such a situation begins with the preparation of an act for each working day stating that a person is absent from work for an unknown reason (the first act indicates the time of absence “from ... to”, and the rest - “during the entire working day”).

Acts on the absence of an employee should first be drawn up daily, in case of a long absence - as of the day the next time sheet was submitted.

Letters are sent to the employee with a request to give an explanation of the reasons for the absence (must be sent by registered mail with a list of attachments).

If there is no news from the missing employee for more than a year, the employer, guided by the provisions of Art. 42 of the Civil Code of the Russian Federation and Chapter 31 of the Code of Civil Procedure of the Russian Federation, may recognize the missing employee as missing through the court. According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. If the court satisfies the stated requirements to recognize the missing employee as missing, the employer will be able to terminate the employment contract with this employee under clause 6, part 1, art. 83 of the Labor Code of the Russian Federation.

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The Labor Code of the Russian Federation, Article 77 provides for general grounds for terminating an employment contract. In accordance with this article, an employment contract may be terminated:

1. Agreement of the parties (Article 78 of the Labor Code of the Russian Federation). This basis for terminating an employment contract applies both to employment contracts concluded for an indefinite period and to fixed-term employment contracts. The labor legislation does not contain any exceptions to this norm. Therefore, the practice of terminating only fixed-term employment contracts by agreement of the parties should be recognized as incorrect. It takes place when there is a mutual will of the parties, aimed at its termination. The desire of only one party of the party is not enough to terminate the employment contract on this basis. However, it does not matter from which side the initiative came: from the employee or from the employer. The employment contract can be terminated exactly at the time agreed by the parties. If the parties could not agree on the moment from which the employment contract is terminated, then the agreement has not been reached and termination on this basis is unacceptable.

This ground for dismissal has some advantages over dismissal of one's own free will. So, for example, when applying to the employment center and subsequently registering as unemployed, the amount of the benefit will be determined on the basis of the official salary that was at the last place of work, while upon dismissal of one's own free will and subsequent appeal to the employment center, the amount of the benefit, in case of recognition as unemployed, will be determined on the basis of the amount minimum size wages, which are usually much lower.

2. The expiration of the term of the employment contract (Article 79 of the Labor Code of the Russian Federation), with the exception of cases when the employment relationship actually continues and none of the parties has demanded their termination. This ground for termination of an employment contract, of course, applies only to employment contracts concluded for a period. If, after the expiration of the contract, the employment relationship actually continues and neither party has demanded its termination, the employment contract is considered extended for an indefinite period. The employee must be warned by the employer about the termination of the fixed-term employment contract in writing at least three days before the dismissal, with the exception of the contract concluded for the duration of the performance of the duties of the absent employee.

It is also necessary to note one legislative restriction - in the event of the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, at her request, to extend the term of the employment contract until she has the right to maternity leave. An employment contract concluded for the duration of a certain work is terminated upon completion of this work. An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work. An employment contract concluded for the duration of seasonal work is terminated after a certain season.

3. Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation). The employee has the right to terminate the employment contract at his own request (regardless of its term), notifying the employer in writing two weeks in advance. This term begins to be calculated from the day after the application for dismissal is submitted.

Exceptions to general rule are employees who have concluded an employment contract for a period of up to two months, seasonal workers and employed by employers - individuals who are not individual entrepreneurs for which other notice periods for termination of the contract are established. So, employees who have concluded an employment contract for a period of up to two months, and seasonal workers can terminate it by notifying the employer about it three days in advance, and those working for the employer - individual specified in the employment contract. An employee can apply for resignation of his own free will at any time, even during a period of temporary disability, vacation, etc. Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him. At the same time, it should be borne in mind that before the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. In case of withdrawal of the application, the dismissal is not carried out, except in cases where another employee is not invited in writing to the place of the employee who submitted the application for dismissal, who, in accordance with applicable law, cannot be refused to conclude an employment contract. In cases where, after the expiration of the notice of dismissal, the employment contract was not terminated, and the employee does not insist on dismissal, the employment contract continues.

4. Termination of the employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation). Labor legislation establishes a specific, strictly limited list of grounds that give the employer the right to dismiss an employee on their own initiative.

The list of grounds for termination of an employment contract at the initiative of the employer is enshrined in Art. 81 of the Labor Code of the Russian Federation, which contains both grounds that apply to all employees, and apply only to certain categories of employees (for example, liquidation of an organization, reduction in the number or staff of employees, inconsistencies of an employee with a position held, a change in ownership of an organization’s property, insufficient qualifications, confirmed by the results certification, health status in accordance with a medical report, etc.).

It is not allowed to dismiss, at the initiative of the employer, an employee who is on vacation or on sick leave, except in the event of liquidation of the organization or termination of activity by the employer - an individual.

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

It is important to emphasize that in order to dismiss an employee for any of these reasons, the employer must have documents confirming these reasons. For example, for dismissal in connection with the appearance at work in a state of alcoholic or other intoxication, it is necessary to have an act fixing the detection of signs of intoxication of the employee at the time of his presence at work, an act of medical examination confirming the presence of alcoholic or other intoxication, written explanations of the employee; for dismissal due to absenteeism, a drawn up act is required, fixing the absence of the employee at the workplace for 4 hours and written explanations of the employee.

In addition, it is worth noting that termination of an employment contract at the initiative of the employer with certain categories of employees is not allowed, for example, with pregnant women (except in cases of liquidation of the organization), with women with children under the age of three, single mothers raising a child in under the age of fourteen years (a disabled child under eighteen years of age).

• 5. Transfer of an employee at his request or with his consent to work for another employer or transfer to an elective job (position). Termination of the employment contract in connection with the transfer to another job occurs when the employee independently found another job and was invited in writing by another employer, and the former employer does not object to this transfer. At the same time, the transferred employee cannot be refused admission to a new place of work within one month from the date of dismissal from the previous place of work (Article 64 of the Labor Code of the Russian Federation). If the transfer to another permanent job is carried out within the same organization, labor relations with the employee are preserved and dismissal is not carried out. If an employee is transferred with his consent to work for another employer, the former employer offers the employee a job with another employer, in particular, when the organization is taking measures to reduce the number or staff, and it is not possible to employ the employee within the organization. In the case of transferring an employee to elective work (position), the legal fact of termination of labor relations is the act of election.
• 6. An employee's refusal to continue working due to a change in the owner of the organization's property, a change in the organization's jurisdiction (subordination) or its reorganization (Article 75 of the Labor Code of the Russian Federation).

After the transfer of ownership of the property of the organization from one owner to another, labor relations with all employees continue, with the exception of certain categories of executives, namely: heads of organizations, their deputies and chief accountants, who can be dismissed by the new owners no later than three months from the date of his right to property. However, the employee himself may not want to stay to work for the new owner. Labor relations with employees are preserved even when the subordinate (subordination) organization changes, as well as when it is reorganized. In this case, the employee must express his consent to the continuation of the employment relationship. It can be expressed both orally and in writing. If the employee refuses to continue labor relations in the transformed organization, he is subject to dismissal on the basis indicated above.

7. Refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part 4, article 74 of the Labor Code of the Russian Federation). When, for reasons related to changes in organizational or technological working conditions, the terms of the employment contract determined by its parties cannot be saved, they may be changed at the initiative of the employer. In this case, the employer is obliged to notify the employee of the upcoming changes, as well as the reasons that caused them, in writing no later than two months in advance. If the employee does not agree to continue working in the new conditions, the employer must offer him another vacant position or a vacant job, both corresponding to his qualifications, and a lower position or lower-paid job that he can perform, taking into account the state of health. The employer is obliged to make an offer of such work in writing. In the absence of such work, as well as the refusal of the employee from the work offered to him, the employment contract is terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.

The decision of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that the termination of an employment contract on the basis indicated above will be lawful only if the employer provides evidence confirming that changes in the terms of the employment contract were the result of changes in the organization of labor or in the organization of production, improving jobs on the basis of their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement. In the absence of such evidence, the termination of the employment contract under this article cannot be recognized as legal.

• 8. The employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, or the employer’s lack of an appropriate job (parts 3 and 4 under Article 73 of the Labor Code of the Russian Federation ). Article 73 of the Labor Code of the Russian Federation allows the termination of an employment contract in connection with the employee's refusal to transfer to another job due to a state of health. To dismiss an employee on this basis, it is necessary to have a medical report, an application from the employee with a request to be transferred to another job in accordance with the medical report and the absence of such a possibility of transfer, or a written refusal of the translation provided, in accordance with the medical report.
• 9. Refusal of an employee to transfer to work in another locality together with the employer (part 1 of article 72 of the Labor Code of the Russian Federation). This type of transfer of an employee to another permanent job at the initiative of the employer allows, firstly, only with the consent of the employee himself and, secondly, provided that the entire organization moves to another locality, and not its individual structural divisions (representative offices, etc.). .P.).

Unfortunately, labor legislation does not contain the concept of another locality. Supreme Court The Russian Federation, in its resolution of March 17, 2004, indicated that another locality should be understood outside the administrative-territorial boundaries of the corresponding settlement.

• 10. Circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation). These grounds for termination of the employment contract are carried out in the following cases:
  • - calling an employee for military service or sending him to an alternative civilian service that replaces it;
  • - reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;
  • - non-election to office;
  • - condemnation of the employee to a punishment that precludes the continuation previous work, in accordance with the verdict of the court, which has entered into force;
  • - recognition of an employee as completely disabled in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation;
  • - death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as dead or missing;
  • - the onset of emergency circumstances that prevent the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government Russian Federation or body state power the corresponding subject of the Russian Federation;
  • - disqualification or other administrative punishment;
  • - expiration, suspension of validity for a period of more than two months or deprivation of an employee of a special right (license, etc.);
  • - termination of access to state secrets, if the work performed requires such access;
  • - cancellation of a court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.
• 11. Violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (Article 84). If the rules for hiring, specified in Art. 84 of the Labor Code of the Russian Federation, an employment contract with an employee is subject to termination, provided that a violation of these rules excludes the possibility of continuing work in the following cases:
  • - the conclusion of an employment contract in violation of a court verdict depriving a particular person of the right to hold certain positions or engage in certain activities. Termination of the employment contract on this basis is allowed if it is impossible to transfer the employee, with his written consent to another job;
  • - conclusion of an employment contract for the performance of work that is contraindicated for this person for health reasons in accordance with a medical report;
  • - the absence of an appropriate document on education, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal act;
  • - in other cases stipulated by federal law.

In the event of termination of an employment contract due to a violation of the mandatory rules established by law when concluding an employment contract, the employer pays the employee a severance pay in the amount of the average monthly salary, if the violation of the rules for concluding an employment contract was not the fault of the employee. In all cases, the day of dismissal of the employee is the last day of his work.

In addition to the considered general grounds for terminating an employment contract, special laws may establish additional grounds. So, for example: pedagogical workers of educational institutions can be dismissed for a repeated gross violation of the charter of an educational institution during the year, as well as for the use (even once) of methods of education associated with physical and (or) mental violence against the personality of a student, pupil (Art. 56 of the Federal Law "On Education"); dismissal of a civil servant, in addition to the grounds provided for in the Labor Code of the Russian Federation, is also allowed in cases of reaching the age limit established by law, disclosure of information constituting state and other secrets protected by law, on other grounds expressly stipulated in Articles 11, 21, 25 of the Federal Law "On public service" (including engaging in entrepreneurial activities personally or through authorized persons; membership in a governing body commercial organization; acting as an attorney or representative of third parties in the government agency where he serves).

employment contract dismissal

Termination of an employment contract is an event that can have very serious consequences for a person, and often not only for the employee himself, but also for his family members, relatives and friends. Therefore, the desire of the legislator to resolve issues related to the termination of an employment contract in an exhaustive manner is understandable.

The Labor Code provides: general grounds for termination of an employment contract; termination of the employment contract at the initiative of the employee (at his own request); termination of the employment contract at the initiative of the employer; termination of the employment contract due to circumstances beyond the control of the parties; termination of the employment contract due to violation of the rules for its conclusion.

The general grounds for termination of an employment contract are listed in Art. 77 of the Labor Code of the Russian Federation.

These include:

• agreement of the parties;
• expiration of the term of the employment contract, except in cases where the employment relationship actually continues and none of the parties has demanded its termination;
• termination of the employment contract at the initiative of the employee;
• termination of the employment contract at the initiative of the employer;
• transfer of an employee at his request or with his consent to work for another employer or transfer to elective work (position);
• the employee's refusal to continue working in connection with a change in the owner of the organization's property, a change in the jurisdiction (subordination) of the organization or its reorganization;
• refusal of the employee to continue work due to a change essential conditions employment contract;
• the employee's refusal to be transferred to another job due to a state of health in accordance with a medical report;
• refusal of the employee to transfer in connection with the relocation of the employer to another locality;
• circumstances beyond the control of the parties;
• violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work.

Many of these grounds are specified in subsequent articles of the Labor Code of the Russian Federation.

Since, as practice shows, most often the termination of an employment contract occurs on such grounds as termination of an employment contract at the initiative of the employee and at the initiative of the employer, we will focus our attention on them.

Termination of the employment contract at the initiative of the employee

Based on the principle of freedom of labor and the inalienable right of everyone to choose a place of work, the employee has the right to terminate the employment contract at any time by notifying the employer in writing two weeks in advance.

The main purpose of the warning is to enable the employer to select a new employee to replace the one who leaves of his own free will. Therefore, the employee has the right to warn the employer about his desire to leave work not only during the period of work, but also during the implementation of state and public duties, before going on vacation or during vacation, as well as illness.

By agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.

In cases where the employee's application for dismissal on his own initiative (of his own free will) is due to the impossibility of continuing his work (enrollment in an educational institution, retirement and other cases), as well as in cases of established violation by the employer of laws and other regulatory legal acts containing the norms of labor law, the terms of the collective agreement, agreement or employment contract, the employer is obliged to terminate the employment contract within the period specified in the employee's application.

Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited in his place in writing, who, in accordance with the law, cannot be refused to conclude an employment contract.

Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.

If, after the expiration of the notice period for dismissal, the employment contract has not been terminated and the employee does not insist on dismissal, then the employment contract continues.

Termination of the employment contract at the initiative of the employee can be made only on the basis of his written application (warning). No other evidence of the employee's desire to terminate the employment contract on his own initiative is not taken into account, since a mandatory written form has been established for the notice of dismissal.

Termination of the employment contract at the initiative of the employer

Termination of the employment contract at the initiative of the employer is devoted to Art. 81 of the Labor Code of the Russian Federation. It provides that the employment contract may be terminated by the employer in the following cases:

1) liquidation of the organization or termination of activities by the employer - an individual;

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

3) non-compliance of the employee with the position held or the work performed due to:

a) the state of health in accordance with the medical report;

b) insufficient qualifications, confirmed by the results of attestation;

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

5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;

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

a) absenteeism (absence from work without good reason for more than four consecutive hours during the working day);

b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication;

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;

d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;

e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences;

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

8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unreasonable 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) submission by the employee to the employer of false documents or deliberately false information when concluding an employment contract;

12) termination of access to state secrets, if the work performed requires access to state secrets;

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

14) in other cases established by the Labor Code of the Russian Federation and other federal laws.

Let us consider in more detail some of the grounds for termination of the employment contract provided for in this article.

Paragraph 1 of Art. 81 names as such the liquidation of an organization or the termination of activities by an employer - an individual. Both that, and another in conditions market economy- the phenomena are quite normal and quite common. The liquidation of an organization is perhaps the most indisputable ground for terminating an employment contract: an employment contract cannot continue if one of its parties (the employer) has ceased to exist. But here, too, a caveat is necessary. The liquidation of an organization should not be confused with a change in the ownership of the property or a change in the jurisdiction of the organization, as well as its reorganization. In these cases, there is no termination, but only a change in the employment contract (Article 75 of the Labor Code of the Russian Federation), which entails the right of the employee to refuse to continue working (clauses 6 and 7 of Article 77 of the Labor Code of the Russian Federation).

An even more common reason for termination of an employment contract at the initiative of the employer is the reduction in the number or staff of the organization's employees (clause 2, article 81 of the Labor Code of the Russian Federation). Dismissals on this basis are often challenged by employees in the courts, and often the court concludes that such dismissals are illegal.

Dismissal under paragraph 2 of Art. 81 of the Labor Code of the Russian Federation will be lawful if:

1) takes place actual, real downsizing, not imaginary. Courts should look into this carefully and, in particular, look into redundancy orders, staffing, data on the reduction of the wage fund, changes in the nature of production, technology, etc.;

2) the dismissal of this particular employee is caused by production interests, and not by the fact that he did not please someone;

3) fired has no benefits to stay at work. In accordance with the legislation, the preferential right to remain at work is granted to employees with higher labor productivity and qualifications, in a word, with better business qualities. But if in this regard the employees are equal, then personal and family circumstances are taken into account:

Having two or more dependents;

The absence in the family of other persons with independent earnings;

work injury or Occupational Illness obtained in this organization;

Some other circumstances;

4) the administration does not have the opportunity to transfer the laid-off employee to another job or the employee has refused the job offered to him.

Since upon dismissal due to a reduction in the number or staff of employees - as well as upon dismissal due to the liquidation of an organization - it is impossible to see the fault of the dismissed employee, and he turns out to be the injured party, the legislation provides in these cases certain guarantees and compensations to the dismissed.

About the upcoming dismissal in connection with the liquidation of the organization, the reduction in the number or staff of the organization's employees, employees are warned by the employer personally and against receipt at least two months before the dismissal.

When carrying out measures to reduce the number or staff of the organization's employees, the employer is obliged to offer the employee another available job (vacant position) in the same organization that corresponds to the employee's qualifications.

Upon termination of the employment contract in connection with the liquidation of the organization or the reduction in the number or staff of the organization's employees, the dismissed employee is paid a severance pay in the amount of the average monthly salary, and he also retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal.

In paragraph 3 of Art. 81 of the Labor Code of the Russian Federation provides for the possibility of dismissal of an employee due to his inconsistency with the position held or work performed due to: a) health status in accordance with a medical report; b) insufficient qualifications, confirmed by the results of attestation.

In this case, of fundamental importance is the provision that the state of health must be confirmed by a medical report, and insufficient qualifications - by the results of attestation.

In addition, if an employee is dismissed due to health reasons, he must also be paid severance pay.

Paragraph 6 of Art. 81 of the Labor Code of the Russian Federation gives the employer the right to dismiss an employee for some single violations of labor discipline. With regard to the dismissal of an employee for appearing at work in a state of alcoholic, narcotic or other toxic intoxication, then on this basis, employees who were in working time at the place of work in a state of alcoholic, narcotic or other toxic intoxication. Dismissal is possible if the employee was in such a state both at his workplace and on the territory of the organization where he must perform his labor function.

Wherein arbitrage practice proceeds from the fact that the state of alcoholic intoxication of an employee can be confirmed both by a medical report and other types of evidence that are subject to an appropriate assessment. One of such evidence can be an act, which, in particular, indicates the day, time and place of its compilation and signs of the employee's drunken state.

The appearance at work in a state of intoxication is the basis for dismissal, regardless of when it took place - at the beginning, middle or end of the working day. Dismissal is allowed regardless of whether the employee has disciplinary sanctions and whether he was suspended from work or work duties.

In paragraph 7 of Art. 81 contains such a basis for terminating an employment contract as the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer.

On this basis, only employees who directly service monetary or commodity values ​​(reception, storage, transportation, distribution, etc.) who have committed guilty acts that give the administration a reason to lose confidence in them can be dismissed.

The loss of trust must be based on the specific facts of the employee's wrongdoing.

Guilty actions that give rise to a loss of confidence in an employee may include, in particular, the following: receiving payment for services without relevant documents, measuring, weighing, calculating, violating the rules for the sale of alcoholic beverages or the issuance of narcotic drugs.

Loss of trust is possible not only for abuses committed by the employee, but also for his negligent attitude to his labor duties, for example, issuing money without proper registration, storing keys to premises with material values ​​in the wrong place. The basis for dismissal due to loss of trust is the use by the employee of the property entrusted to him for direct maintenance for personal purposes.

If the fault of the employee in the commission of specific actions is not established, then the employee cannot be dismissed for reasons of loss of trust despite the occurrence of a shortage, damage to the entrusted values, etc.

In accordance with paragraph 8 of Art. 81 of the Labor Code of the Russian Federation, the commission of an immoral offense incompatible with the continuation of this work can serve as a basis for dismissal only in relation to employees performing educational functions. These include, for example, teachers, lecturers educational institutions, masters of industrial training, educators of children's institutions. Persons, although working in schools, boarding schools, kindergartens, etc., but performing only technical responsibilities(cleaners, storekeepers, etc.) cannot be dismissed on this basis.

Immoral offenses incompatible with the continuation of work can be committed by persons performing educational functions both in the team and at home. However, under all conditions, the commission of immoral offenses must be proven. Dismissal based on overall assessment behavior of a person, based on vague or insufficiently verified facts, rumors, etc.

In paragraph 14 of Art. 81 of the Labor Code of the Russian Federation states that an employment contract may be terminated by the employer in other cases established by this code and other federal laws.

Such cases established by law are, for example:

• termination of the employment contract with the head of the debtor organization in connection with his removal from office in accordance with the legislation on insolvency (bankruptcy);
• termination of an employment contract with a person working part-time in the event of hiring an employee for whom this work will be the main one;
• termination of an employment contract with an employee working for an employer - an individual, on the grounds provided for by this contract.

The procedure for dismissal of an employee.

Termination of an employment contract almost always (with the exception of termination of an employment contract due to the death of a citizen) means the dismissal of an employee. The procedure for dismissal is regulated by law.

The day of dismissal of an employee in all cases is the last day of his work.

On the last day of work, the employer is obliged to issue a work book to the employee, and, upon his written application, other documents related to work, and make the final settlement with him. Failure to fulfill this obligation, if it caused the employee to be unable to get a job new job(for example, due to a delay in issuing a work book), entails the liability of the employer in the form of his obligation to compensate the employee for lost earnings for illegally depriving the employee of the opportunity to work.

In the order to dismiss the employee and his work book there should be a reference to the relevant article (and, if necessary, the paragraph of the article), on the basis of which the employment contract was terminated.

The general grounds for termination of employment contracts are indicated in Art. 77 of the Labor Code of the Russian Federation. We have already touched on some of them above.

The general grounds are:

1. Agreement of the parties.

As follows from Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of its parties. Important is not only the desire of the parties to terminate the relationship, but also the agreement on the time (period, date) of termination of the contract.

Article 79 of the Labor Code of the Russian Federation imposes the obligation of the employer to notify the employee of the termination of the fixed-term employment contract in writing at least three days before the dismissal, otherwise the fixed-term employment contract is transformed into an employment contract concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Also in Art. 79 of the Labor Code of the Russian Federation defines the moments of termination of individual fixed-term employment contracts. So, when concluding an employment contract for the time of performing a certain work, for the time of fulfilling the duties of an absent employee, for the time of performing seasonal work, such contracts are terminated accordingly: at the end of the work stipulated by the contract, with the exit of the replaced employee to work, at the end of the season.

In all cases, the employer must warn the employee and issue an appropriate written order, which brings the employee to the signature.

3. Termination of the employment contract on the initiative of the employee.

The contract is terminated at the employee's own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employee must notify the employer in writing of his desire to terminate the employment relationship at least two weeks in advance. A different period may be fixed by agreement of the parties or specified in the law (for example, the manager must notify the employer at least a month in advance - Article 280 of the Labor Code of the Russian Federation). And if an employment contract is concluded with an employee for a period of up to two months or with a seasonal worker, then the employer is notified of the early termination of the employment contract three calendar days in advance (Articles 292, 296 of the Labor Code of the Russian Federation).

If, after filing an application for dismissal, the employee has changed his mind, then he has the right to withdraw his application at any time before the expiration of the notice of dismissal. This is always possible, except for the situation when another employee is invited in writing to replace the resigning employee, who, in accordance with Art. 64 of the Labor Code of the Russian Federation or other federal laws, the conclusion of an employment contract cannot be refused.

4. Termination of the employment contract at the initiative of the employer.

This paragraph does not apply on its own and refers to Art. 81, which indicates the grounds for termination of the contract at the initiative of the employer. These grounds will be discussed further.

In accordance with Art. 61 of the Civil Code of the Russian Federation, the liquidation of an organization entails its termination without the transfer of rights and obligations by way of succession to other persons.

In the event of the termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of these structural units is carried out according to the rules provided for in cases of liquidation of the organization (part 4 of article 81 of the Labor Code of the Russian Federation). Employees must be warned about the upcoming dismissal against signature at least two months in advance (Article 180 of the Labor Code of the Russian Federation).

A dismissed employee is paid a severance pay at the expense of the employer in the amount of the average monthly earnings. In addition, he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after the dismissal and was not employed by him (part 2 of article 178 of the Labor Code RF). And upon dismissal from organizations located in the regions of the Far North, salary retention is possible for the fourth, fifth and sixth months (Article 318 of the Labor Code of the Russian Federation).

With the written consent of the employee, the employer has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in proportion to the reduction of the warning period (parts 2 and 3 of article 180 of the Labor Code of the Russian Federation).

The liquidation and reduction of the staff of temporary workers (having a contract term of up to two months) is warned three days in advance, and the severance pay may be provided for by the contract (Article 292 of the Labor Code of the Russian Federation), and seasonal workers are warned seven days in advance, and the severance pay is at least two weeks' earnings (Article 296 of the Labor Code of the Russian Federation).

In case of dismissal of employees due to the termination of activities by the employer - an individual, the terms of the notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation). If the contract does not specify these warranties, the provisions of the law shall apply.

2. Reducing the number or staff of the organization's employees.

When carrying out these activities, the employer is obliged to offer the employee another available job (vacant positions). All positions (works) that an employee can occupy (perform) should be offered, taking into account his skills and state of health.

If the downsizing results in the dismissal of employees, then employees with higher labor productivity and (or) qualifications have an advantage.

With equal labor productivity and qualifications, preference in remaining at work is given to:

• family - in the presence of two or more dependents (disabled family members who are fully supported by the employee or receive assistance from him, which is for them a permanent and main source of livelihood);
• persons in whose family there are no other self-employed workers;
• employees who have received a labor injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
• employees who improve their skills in the direction of the employer on the job (part 2 of article 179 of the Labor Code of the Russian Federation);
• other persons specified in the collective agreement of the organization.

In accordance with Part 1 of Art. 82 of the Labor Code of the Russian Federation on the decision to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees on this basis, the employer must also inform the elected trade union body of this organization in writing, and if the decision to reduce the number or staff of employees of the organization may lead to mass dismissal of employees - no later than three months before the start of the relevant activities.

When dismissing workers who are members of a trade union, it is required to coordinate the decision with the trade union.

3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification.

On this basis, the employee may be dismissed if it is impossible to transfer him to another job with his consent. In order to protect the rights of workers in the attestation commission a member of the commission from the relevant elected trade union body(part 3 of article 82 of the Labor Code of the Russian Federation).

4. Change of the owner of the property of the organization.

Upon termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization, the new owner is obliged to pay compensation to the specified employees in the amount of at least three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation). They also cannot be withheld sums of money for unworked days of vacation used in advance, etc. (Article 137 of the Labor Code of the Russian Federation).

Paragraphs 5 to 10 of Art. 81 of the Labor Code of the Russian Federation are disciplinary dismissals (penalties - Article 192 of the Labor Code of the Russian Federation), therefore, the procedure for their application must strictly comply with the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

5. Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction.

Termination of an employment contract on this basis is possible if the employee has already committed a disciplinary offense, for which a disciplinary sanction was applied to him in the prescribed manner and this employee again commits a disciplinary offense, and the previous penalty has not yet been lifted by this moment. A disciplinary sanction is removed automatically one year after application, unless removed earlier by order of the employer.

The general rules for applying penalties are as follows:

• an explanation is necessarily taken or an act is drawn up;
• an order for each case of violation is issued no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to determine the opinion of the representative body of employees, but in any case not later than six months from the date of the misconduct , and based on the results of an audit, audit of financial and economic activities or an audit - no later than two years from the date of the offense.

6. A single gross violation of labor duties by an employee.

Single gross violations of labor duties are understood as:

a) absenteeism, i.e. absence from work during the entire shift or absence from the workplace without good reason for more than four hours in a row during the working day;

b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication.

Dismissal is possible only when the employee was in a state of intoxication during working hours on the territory of the organization or facility, where, on behalf of the management, he had to perform labor functions.

The presence of an employee of alcohol, narcotic or other toxic intoxication and the fact of his appearance in such a state at work must be proved by the employer. Evidence will be a medical report or other evidence (such as a witness statement);

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, as well as disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of another's property, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into legal force or a decision of a body authorized to apply administrative penalties;

e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created a real threat of such consequences.

7. Commitment of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer

Employees to whom this basis can be applied are persons serving monetary and commodity values. On this basis, watchmen, cleaners, etc., who do not serve (storage, processing, manufacturing) monetary and commodity values ​​\u200b\u200bcannot be dismissed, although they can use them in the process of work.

The application of this basis does not depend on other types of liability and on the existence of an agreement on full liability. In this situation, the guilt of the employee is established by the employer himself on the basis of the evidence he has.

8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.

There is no definition of immoral offense in the legislation. It seems that it should be understood as offenses that violate the accepted legal regulations directly related to morality, committed by the employee both at work and at home and not corresponding to the moral qualities required for the positions held or for the work performed by him related to the upbringing of minors.

On this basis, only employees performing educational functions, i.e. teachers, social pedagogues, educators, etc., can be dismissed. Persons performing only technical duties cannot be dismissed on this basis.

9. Making an unreasonable 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 misuse 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.

The head can also be dismissed for general one-time gross violations (and. 6, article 81 of the Labor Code of the Russian Federation), as well as for other gross violations, which must be specified either in individual agreement with the employee, or in local regulations, with which the manager is familiarized against signature.

11. Submission by the employee to the employer of false documents when concluding an employment contract.

In accordance with the Labor Code, an employee presents a whole package of various documents (Article 65 of the Labor Code of the Russian Federation), which can be legally expanded in some cases, taking into account the specifics of the work.

Forgery of documents can be in form (when the entire document is fake) and in content (when the actual document contains false entries).

12. This paragraph - the termination of access to state secrets - was transferred by the legislator to Art. 83 TK.

13. Cases stipulated by the employment contract with the head of the organization, members of the collegial executive body of the organization.

Termination of the contract due to circumstances beyond the control of the parties

In accordance with Art. 83 of the Labor Code of the Russian Federation, an employment contract is subject to termination due to the following circumstances that do not depend on the will of the parties:

1. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.

Upon termination of employment relations on the specified basis, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation).

The termination of the employment contract on this basis is carried out on the basis of the employee's application upon presentation by the employee of the military registration and enlistment office summons to appear at the recruiting station for service. Only in this case, the Federal Law "On the Status of Servicemen" guarantees the right of a serviceman who worked at a state (municipal) enterprise before being drafted to return to his previous job within six months from the date of demobilization.

2. Reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court.

Termination of the employment contract on this basis is possible only if it is impossible to transfer the employee with his consent to another job. Moreover, in this case, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation);

3. Not being elected to office.

Logically, this paragraph applies if the employee holding a certain position is not re-elected for a new term. Since in the competitive replacement of a position, in addition to such an employee, persons filling other positions can participate, and if they are not elected, they remain in their positions and they do not need to be fired. also in competitive selection an applicant from the street can participate, i.e. not an employee of the organization, and if he is not elected, he also does not need to be fired, since he did not become an employee.

4. Condemnation of an employee to a punishment that precludes the continuation of the previous work in accordance with a court verdict that has entered into force.

In accordance with Art. 392 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force is mandatory for all state authorities, bodies local government, public associations, officials, other individuals or legal entities and is subject to strict execution throughout the territory of the Russian Federation.

If the punishment chosen in the sentence prevents the employee from continuing his labor activity(for example, imprisonment, deprivation of the right to hold a certain position or engage in certain activities), then in this case the employment contract is subject to termination by the issuance by the employer of the relevant 11 ri kaza.

According to part 3 of Art. 77 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work. If the employee was under arrest before the trial, then the day of his dismissal will be considered the last day of his work. This is one of the few cases of dismissal of an employee since the last number.

5. Recognition of an employee as completely disabled in accordance with a medical report.

In this case, the employer is obliged to terminate the employment relationship with the employee. The basis for issuing the relevant order can only be a medical opinion of authorized experts of the MSEC (medical and social expert commission).

6. Death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as dead or missing.

If the first half this ground is clear enough, then the issue of recognizing a person as missing or dead is extended in time and also leads to dismissal of the past date after recognizing the person as such in a judicial proceeding.

7. The occurrence of extraordinary circumstances preventing the continuation labor relations(military operations, catastrophe, some other disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by the decision of the Government of the Russian Federation or the state authority of the corresponding subject of the Russian Federation.

There must be not only an event, but also a decision to recognize it as an emergency by the relevant authority.

8. Disqualification or other administrative punishment, excluding the possibility of the employee fulfilling the obligations under an employment contract.

9. Expiration, suspension for more than two months or deprivation of an employee of a special right (a license, the right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee to fulfill the obligations under the employment contract.

10. Termination of access to state secrets, if the work performed requires such access.

In Art. 23 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets” defines the conditions for terminating admission official or a citizen to state secrets.

If, for one of the reasons given in it, the employee’s access to state secrets is terminated and, as a result, he will lose the opportunity to continue to carry out his labor functions, then the employment contract may be terminated by the employer under paragraph 12 of Art. 81 of the Labor Code of the Russian Federation.

Dismissal under paragraphs 8-10 is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or job corresponding to the employee’s qualifications, as well as a vacant lower position or lower paid job), which the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

11. Cancellation of the court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

12. Bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity in the territory of the Russian Federation.

13. The emergence of established Labor Code, other federal law and excluding the possibility of the employee's performance of duties under an employment contract restrictions on engaging in certain types of labor activity.

Such dismissal is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Additional grounds for termination of the contract with certain categories of employees.

The current labor legislation provides for a significant list of grounds for terminating an employment contract. They are contained directly in the Labor Code of the Russian Federation, as well as in other federal laws.

In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization. In Art. 288 of the Labor Code of the Russian Federation contains an additional basis for the termination of an employment contract with persons working part-time. In Art. 336 of the Labor Code of the Russian Federation specifies additional grounds for termination of an employment contract with teacher. In Art. 241 of the Labor Code of the Russian Federation, additional grounds for the dismissal of employees in a representative office of the Russian Federation abroad are indicated. In Art. 248.11 provides additional grounds for the dismissal of athletes.

Their special grounds are provided for the dismissal of state civil servants, law enforcement officers, for the resignation of judges, etc.