In the labor biography of each of us, situations of transition to a new job will certainly happen. Moreover, parting with the old can occur for many different reasons. This may be a dismissal at the initiative of an employee or employer, to reduce staff, due to relocation, etc. Let's look at all these situations in more detail.
The boss starts and wins
The employer can dismiss an employee on his own initiative for many reasons. Suppose he is conducting a staff reduction or simply wants to reduce company expenses. Either the organization is liquidated as such or is undergoing a change of ownership.
The employee’s inconsistency with the position that he occupies may “surface”. And the most common reason is discipline problems. That is, lateness, absenteeism, drunken exit to the workplace.
Dismissal of an employee is a responsible procedure; it is important to conduct it competently and in accordance with the law.
If labor discipline is violated
Before making claims to the employee, make sure that the place of work, its mode and other key points are stipulated in the concluded labor contract. Do not be surprised - some companies working at various sites simply do not have the opportunity to indicate in advance the exact place of work when hiring a new person. And to fire him for absenteeism in this case is difficult. That is why it is desirable to clearly regulate the conditions.
Of course, the dismissal of an employee is also possible for a single case of labor violation of discipline. But it must be serious enough. These include the appearance at work while intoxicated (or in a state of drug intoxication), embezzlement or theft, intentional or accidental damage to the organization’s property, violation of the obligation not to disclose trade secrets.
You can fire an employee because of his absence at the place of work for four hours or more. But in this case, you should make sure that he is not ill - the dismissal of an employee on the sick-list is illegal. For minor violations, such as being late, only disciplinary liability is permissible.
Employer Procedure
- identify the violation within the established time (in accordance with Article 193 of the Labor Code of the Russian Federation);
- fix it;
- to request from the employee an explanation of the fact of the violation and to receive it in writing (in the form of an explanatory note);
- the order to bring to disciplinary action in the form of reprimand, remarks, warnings;
- bring this document to the attention of the violator.
In case of repeated violation of an irresponsible employee, a severe reprimand or loss of bonus awaits. Well, for the third time - he can already be fired.
Layoffs
When layoffs are due, the rules and procedures are clearly regulated by law.
So, while reducing equivalent posts, they leave (under equal social conditions) the most qualified of employees. If their professional level is approximately the same, then the social situation should be taken into account.
You cannot fire a single mother, the only employee in the family, a disabled person, a veteran, or someone who has been injured or injured at the place of work. Also, mothers of babies up to 3 years old and pregnant women are protected. Dismissal to reduce an employee participating in collective disputes is impossible, as well as someone who is learning from the company at the same time.
Those whom, according to the law, can be dismissed for reduction, are required to warn about the upcoming event two months in advance and offer to switch to a free workplace (if any). With the consent of the employee, an internal transfer is executed. Otherwise, he submits a letter of resignation due to staff reductions and receives all statutory payments.
Liquidation of an enterprise
If the enterprise is completely liquidated, it is up to everyone to dismiss. How to do it right?
For 2 months, all employees receive a written warning (Article 180 of the Labor Code, part 2). This applies to both main employees and part-time workers. One copy of the notice must be handed to each of the employees, the second (with the signature of the dismissed) - filed to the order.
After two months, the administration issues an order to dismiss the employee (each separately) in accordance with form T-8 on dismissal and all due payments are made. Which ones?
These include: salary for the time worked, severance pay and cash compensation for dismissing an employee for unused vacation days.
Settlements with employees are carried out on the last of the working days with the corresponding entry in the work book. You should be aware that in connection with the dismissal of an employee due to the liquidation of the enterprise, he retains the right to receive average monthly earnings during the period of subsequent employment (no longer than 3 months). An exception is part-time workers, seasonal and temporary workers. The latter include those with whom a fixed-term employment contract was concluded for no more than two months.
If the employee does not correspond to the position held
This issue - on the conformity or non-compliance of the position - is authorized to decide the certification commission available at the enterprise. In the case of an unsatisfactory result of the certification (carried out in order to control professional suitability and the appropriate level of qualification of employees), the employee will be offered another position.
In case of refusal, the employer has the right to dismiss him, but this should be done no later than two months after certification. The work book and the order indicate that the employee refused to transfer to another job.
Who can’t be fired?
The one who is on vacation (any - next, child care, educational or without content). An exception is the case of liquidation of an institution. In addition, it will not be possible to fire an employee on a sick leave. And this applies to everyone - to the main employees, part-time workers, homeworkers.
In addition, there are a number of categories of workers, the dismissal of which is very, very problematic. For example, pregnant women are only allowed to be dismissed. liquidation of the organization. Almost the same rights for all women with children under three years of age and for single mothers with children under 14 years of age (if the child is disabled, then under 18 years of age). In addition to the liquidation of the enterprise, the reason for their dismissal can only serve as their own guilty actions.
Underage employees (that is, those who are not yet eighteen) are fired only with the knowledge and with the approval of the commission on minors. Union workers - when taking into account the motivated opinion of the latter, and only when such an opinion has not been received within 7 days, this rule can be ignored.
If the employee is a participant in labor disputes or any collective bargaining, then the authority authorizing him to such orders must give permission for his dismissal. An exception is also the case of the guilty actions of the dismissed.
Dismissal of an employee of his own free will
Of course, not every case of termination of employment is associated with the employer. If the dismissal of an employee is his personal initiative, he has the right to write a statement about him. This right of his does not depend on the form of the prisoner during the execution of the employment contract (it is urgent or unlimited).If the labor contract is urgent, then it should automatically be terminated at the end of its validity period, which the employee is warned in writing for three days.
It is permissible to indicate in the application the reasons (reason) for dismissal - admission to study, moving, the need to care for a child under 14 years of age, but this is not mandatory. In all these cases, the dismissal of an employee of his own free will occurs on Article 77 of the Labor Code of the Russian Federation.
According to the law, it is allowed to work out a two-week period, but the employer has the right to reduce or completely cancel this time. After working out, an order for dismissal is issued, with which the employee is introduced for signature, a corresponding entry is made in the work book and the final payroll is made.
What you need to know
The employee must be issued all the necessary documents upon dismissal of the employee. These are copies of orders for dismissal or transfer to another section, if any, certificates of form 2-NDFL and salary and other documents requested by the employee.
Most often, the dismissal of an employee requires the transfer of affairs to a new one - his successor. Theoretically, the resigning person may refuse to participate in this procedure, and the employer has the right to apply punishment (for example, in the form of deprivation of the bonus), but he cannot prevent the dismissal on this occasion.
Before the expiration of the termination period indicated in the application, the employee may well change his mind. Then he withdraws his own application and continues to work. They will fire him only if a new employee was invited in his place (and in writing), and there is no way to refuse him.
Possible problems
The procedure for dismissal of an employee must be strictly followed, as this is a serious procedure. Conducted with violations, it will bring a lot of problems to the head of the employer. For example, dismissal due to a mismatch of the position is easily disputed in court in the absence of a job description for an employee or provision for certification at the enterprise.
If the employee is dismissed for violation of discipline (with the phrase "systematic"), but there were no facts bringing him previously to disciplinary liability, he also has the right to sue for illegality of the procedure. And the court is likely to decide on reinstatement.
Thus, all documents upon the dismissal of an employee should be more than carefully checked for compliance with the law. Officially, it is called the "termination of the employment contract." In what other cases can it be discontinued?
Other cases
In addition to the above situations, the contract can be elementarily terminated due to the expiration date. Exception - if actually labor Relations everything continues in the same way, and neither the employee nor the employer demanded their completion. An employee can also be transferred to an elected position or to another employer - with his consent or at the request of.
He may refuse to continue working due to a change of ownership of the property belonging to the organization, its reorganization or a changed jurisdiction, as well as if the terms of the employment contract have undergone significant changes.
A medical worker may refuse to transfer to another type of work. Or he has the right to quit in connection with the relocation of the employing organization to another locality. Or in the event of violations in the design of an employment contract, excluding the ability to work normally.
If mutual agreement ...
A mutual contract is terminated by mutual agreement when, in addition to the employee’s desire to resign, permission from the employer is required. For example, in the case when a fixed-term employment contract is terminated earlier than the agreed time. The date of termination is negotiated by the parties.
If the company has a change of ownership or subordination (jurisdiction), as well as reorganization (merger, division, accession, any transformation), then the employment relationship with the employee is not subject to change.
The rule enshrined in the Labor Code allows termination of employment contracts with the head, his deputies and the chief accountant in the event of a change of ownership of the enterprise. Moreover, this should be done no later than three months after such a replacement. The rest of the employees, as mentioned above, this provision does not apply.
Additional Information
In what other cases can the employer terminate the employment on their own initiative? If you think about it, such situations are not so few. For example, when an employee servicing commodity-monetary values, because of his actions, loses the trust of management.
Another option is that the educator commits an immoral misconduct incompatible with his position. Or the head of the organization (or its branch) takes an unreasonable decision to the detriment of the company or unlawfully uses property. For the leader in this case, a gross one-time violation of their own duties is enough.
Still - if during employment the employee provided deliberately false documents or his access to information constituting a state secret (in relevant posts) was terminated.
Other points
There are also circumstances that are called "independent of the will of the parties." What it is?
Most often, such conditions include recruiting an employee for military service or alternative civilian service to replace it.
Another situation from this category is if the court or labor inspectorate reinstates in employee rights previously employed in this position, and then dismissed.
Employment history
Filled in accordance with the established model, it is the main document on the experience and work activities of each person. If the work in this organization is the main one for him, then for each such employee the employer is obliged to draw up a work book within five days. The exception is when an individual accepts you for work.
It contains any information about the employee related to his work - the type of work performed, transfers, dismissal, rewarding and promotion, the grounds for dismissal.
Information about penalties is not recorded there, except for dismissal for disciplinary reasons.
At the request of the employee, part-time information may be entered on the basis of a supporting document. The reasons for dismissal should be indicated with exact wording and links to articles of the law.
A work book must be issued to the person who is leaving the job on the last working day. If he is absent or refuses to take his labor, he is sent a notification about the need to receive it. It is possible to send the document by mail. From the day of sending such a notice, the employer is no longer liable for the late delivery of it.
The standard procedure for "parting" with the employer has its own characteristics in some cases. For example, this is the dismissal of an EMERCOM officer or a police officer. Let's look at some nuances here.
Dismissal of employees of the Ministry of Internal Affairs
Employees of internal organs also have the right to terminate their own contract and dismiss on their own initiative before the expiration date. To do this, they should, in the prescribed manner, submit a report about this no later than a month before the desired day of dismissal.
During the period of the warning about the intention to quit and terminate the contract, the employee of the internal organs has the opportunity at any time to withdraw his report by doing so in writing.Then the contract will not be terminated, the dismissal will not take place (unless another person has already been invited to this place - or invited, but there are legitimate reasons to refuse him).
The dismissal of a police officer is made after this period without warning. With the consent of management, this can be done earlier.
If the report was filed by an employee of the Ministry of Internal Affairs due to the lack of the possibility of further service (for example, admission to study at an educational institution or appointment to a government post), then management must terminate his contract within the time period indicated in the report, taking into account the time required for the transfer of cases.
