How can I fire an employee without his consent? A similar topic is of interest to many modern employers. Indeed, the termination of labor relations in itself is a complex procedure. Violation of the established procedures leads to the fact that the employee can be reinstated. For example, through the court. What should each employer remember about the dismissal of subordinates? How does this procedure work?
Ways to terminate the relationship
Is it possible to fire an employee without his consent? We will have to figure this out further.
To begin, consider several ways to terminate labor relations in Belarus and the Russian Federation:
- at the personal request of the subordinate;
- at the initiative of the employer;
- due to staff reductions;
- due to the liquidation of the enterprise;
- by mutual agreement of the parties.
Usually the first option is considered the most acceptable. But what if the citizen does not want to leave work? Is there any way to get rid of him? And if so, how to do it?
Legal basis
In order to correctly answer such questions, it is necessary to thoroughly study the Labor Code of the Russian Federation.
It states that termination of employment in Russia can occur even without the consent of the employee. That is, the theoretically studied operation takes place.
The problem is that implementing an idea is not as easy as it sounds. The employer will have to follow a certain algorithm of actions. In addition, in order to terminate the employment contract with a person, good reason is needed. It’s impossible to deprive a citizen of work just like that.
The main reasons for dismissal
How can I fire an employee without his consent? We have already said that this operation is possible only if there are good reasons for that. Just because of the "employer wants" to break off the employment relationship does not work. This is a direct violation of applicable law.
Most often, the initiative of the employer regarding the dismissal comes from the following reasons:
- inconsistency of position;
- violation of labor discipline;
- company termination / staff reduction.
How can I fire an employee without his consent in the Republic of Kazakhstan or the Russian Federation? The algorithm of actions in both cases will be approximately the same. The difference lies in the fact that upon dismissal in the work books different articles of codes will be registered.
Abbreviation
For starters, consider not the most common reason - forced dismissal due to downsizing.
Under current laws, the employer must leave more qualified and experienced employees at work with reductions. All others are warned in advance about the upcoming event in writing. A decree is issued with which workers are introduced.
After the reduction, the employer must make severance payments to all those dismissed. In addition, subordinates are compensated for the time actually worked and for unused vacation.
Liquidation
How can I fire an employee without his consent? The next option is also extremely rare. Therefore, we will consider it without details.
It is about the liquidation of the enterprise. The employer notifies subordinates of the closure of the company, makes calculations (severance pay, compensation and other payments), and then indicates in the labor books of the employees that they were dismissed due to the liquidation of the company.
Reduction bans
How can I dismiss an employee without his consent in a budget organization and not only? We have already considered several options. But, as already mentioned, they are not found too often.
It is important to note that bosses are not always entitled to terminate employment unilaterally on their own initiative. You can’t forcefully dismiss:
- pregnant women
- women on maternity leave;
- single mothers with children under 14 years old;
- minors;
- mothers whose children have not yet reached the age of three.
These categories of citizens with the reduction of staff cannot be dismissed. Only on personal initiative. But you can get rid of such subordinates by liquidating the enterprise. In practice, such cases do not occur.
Position mismatch
The next option is to terminate the relationship of the labor type due to the mismatch of the subordinate position. What it is?
These situations include:
- lack of qualifications (education);
- mismatch of the post due to health reasons.
The decision on the compliance of the position shall be made by the commission. In the first case - certification, in the second - medical. A citizen passes certification and, if he fails, the employer has the right to terminate the employment relationship. As in past cases, this is notified in writing by issuing an order.
The mismatch of the position due to health is established during the medical examination. The employee submits tests, visits certain doctors (their list depends on the person’s place of work), and then receives a conclusion of the established form.
Important: the employer has the right to offer the dismissed position to which he corresponds. If there are no suitable places or the employee refuses other vacancies, he is allowed to be fired.
Misconduct
The most common scenario (and the most difficult to implement) is the termination of relations between the subordinate and the employer due to violations of labor discipline. If the contract does not specify a specific place of work, as well as the work schedule and duties of the employee, it will be problematic to cope with the task.
Under current laws, an employee must commit 3 disciplinary violations so that the boss can terminate the employment contract. Prior to this, the citizen is reprimanded and warned, and can also apply disciplinary sanctions, if any, are stipulated by the labor agreement.
Just once
But that is not all. How can I dismiss an employee without his consent if I do not want to wait long? It is recommended to look at your subordinate. Maybe he will commit a serious offense. Then just one violation is enough to terminate the employment contract. For a similar example, we consider the dismissal at the initiative of the employer.
A serious violation can be considered:
- major damage to company property;
- Theft
- absenteeism;
- stay at work in a state of alcohol or drug intoxication.
These are the most common circumstances in real life. So how can one legally dismiss an employee without his consent?
Dismissal Instructions
You must act on a specific pattern. It will help to avoid violation of the established rules of the Labor legislation. So, termination of the contract will be fully legal.
As we already said, we will consider the process of dismissal in view of a serious violation by a citizen. For example, truancy.
In this case, the employer must:
- To establish the fact of violation.
- Draw up an act of crime / misconduct.
- Gather relevant evidence.
- Demand an explanatory note from the employee. If a person has not submitted the appropriate paper after 2 days, it is necessary to draw up an act of the established form.
- Issue a dismissal order for violation.
- Introduce the subordinate to the document.Does the employee refuse to sign the order? Then you need to draw up an act of such an act.
- Make an entry in the employee’s work book. In our case, this is clause 6 of article 81 of the Labor Code of the Russian Federation.
- Issue to the subordinate a work book and a check sheet.
- Settle with a former employee.
- Give the citizen the necessary certificates. For example, form 2-PIT.
- Attach the dismissal order to the personal file of the employee.
- Send the appropriate package of documents to the archive.
That's all. It would seem that there is nothing difficult in this. The main problem is the evidence of violations by the employee. Especially when it comes to truancy.
Important: if the dismissed person refuses to sign orders, receive a calculation and documents, the employer must fix this. As you might guess, this is done by writing the appropriate acts.
Sick leave and work
How can I dismiss an employee without his consent if he is on sick leave? No way. This is only possible if the company is liquidated.
Legislation prohibits the dismissal of workers who are disabled. So you have to wait.
The exception is cases of dismissal at the initiative of the employee. Then a person can terminate the employment contract both on vacation and on sick leave.
Pregnancy and Dismissal
We found out how to dismiss an employee without his consent in the Republic of Belarus, Kazakhstan and the Russian Federation. What to do with pregnant women?
It is not easy to get rid of them. Labor legislation, as has already been emphasized, allows you to terminate relations with such subordinates:
- on their initiative;
- in view of the liquidation of the organization.
In addition, a pregnant woman can be dismissed at the initiative of the employer as an ordinary subordinate, if the interesting situation is not documented. In such circumstances, you must use the previously proposed instructions.
Conclusion
We found out how to dismiss an employee without his consent. The methods presented to our attention are more and more common in real life.
Nevertheless, the majority of employers persuade subordinates to dismiss at their own will - persuade, intimidate, survive or simply offer a similar option. Less common is the termination of labor-type relations due to the agreement of the parties.