How to fire a person from work. Dismissal of a long-absent employee. Golden parachute is not taken into account when calculating compensation for unused vacation

MagazineForbes published on his website 10 ways to fire an employee, warning the reader that the moral and ethical side in some cases remains on the conscience of the employer. However, questions arise about the technology of these methods of dismissal. In practice, of course, there are much more of them, but TP asked its experts to comment on the most popular.

Agreement of the Parties (Art.78 of the Labor Code of the Russian Federation). It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation. Most often, the reasons for such dismissals are discussed tête-à-tête, but individual cases are made public.

Natalia Plastinina,

The reason for the separation is not bad, but in most cases it requires additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation instructions for the payment of severance pay upon dismissal by agreement of the parties, the long-term practice of resolving the difficult situation in labor relations has shown that the employee agrees to such a “soft, smooth, but not part of his plans” separation only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee for dismissal on the basis under consideration in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties are discussing the size of this compensation at the level of 2-3 salaries, taking as a guide the size of the severance pay while downsizing. However, in special cases (the dismissal of the manager of any link), this size can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be "hooked" on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.

As a rule, such cases constitute dismissal of truant or an alcoholic in those circumstances when the employer was unable to obtain sufficient evidence of employee misconduct and could not, therefore, risklessly apply the grounds for dismissal appropriate to the situation (paragraph “a”, clause 6 para. 1 Article 81 of the Labor Code of the Russian Federation and subparagraph “b”, paragraph 6 of paragraph 1 of Article 81 of the Labor Code of the Russian Federation) The hardest thing is to find agreement with a specially protected category of workers who cannot be dismissed on the initiative of the employer (during certain periods of their activity), pregnant women, persons with family responsibilities listed in Art. 261 of the Labor Code of the Russian Federation. These workers, being in a wounded state, are so afraid of losing their permanent job and not finding a new one that they refuse to conclude agreements on termination of the employment contract, despite the proposed compensation, and if such an agreement is signed, they turn to the courts to challenge them because of a defect of their own free will .

Thus, in addition to the material side of the issue, this basis has one more minus - a high risk of successfully challenging the dismissed employee of his dismissal. And practice knows cases where a court has recognized an agreement on termination of an employment contract as unlawful due to the lack of the will of the employee to do so (as an example, we can study the appeal ruling of the Supreme Court of the Republic of Buryatia dated 06/18/2012 in case No. 33-156), in which the court, having carefully examined the agreement drawn up by the parties, came to the conclusion that there was no real will of the employee to terminate the employment relationship, and there was only a desire to transform labor relations (the agreement contained the obligation of the employer to continue to hire the employee again). In this regard, the court concluded that the dismissal was unlawful under paragraph 1 of paragraph 1 of Art. 77 of the Labor Code of the Russian Federation (by agreement of the parties).

Conclusions: minuses of dismissal by agreement of the parties:

the employee may not agree to terminate the employment contract, despite the favorable conditions for termination proposed by the employer;
in most cases, termination on this basis will require the employer to voluntarily pay the compensation agreed upon by the parties in the termination agreement;
practice fixes a high risk of contesting dismissal by agreement of the parties due to a defect in the employee’s will. There are cases of recognition of such agreements as illegal in judicial practice.

Anna Ustyushenko,

The agreement of the parties is applied not when the employer cannot find a suitable article in the Labor Code of the Russian Federation, but when the employer soberly assesses the time and financial costs that a dismissal “under the article” may entail, if the reasons for this are very transparent.

In my opinion, dismissal by agreement of the parties is the best option to terminate the employment contract. Firstly, it allows the parties to reach a compromise and remain satisfied with each other, secondly, it is the easiest to execute, and thirdly, this dismissal is the most “viable” if the employee disputes it.

I offer my clients such arguments that can help convince the employee of the need to sign an agreement on termination of the employment contract:

informing the employee of the information that the employment contract with him will be terminated, in the best case, the employee will be reduced. However, even a reduction is not a good reason to terminate an employment contract for demonstration to a future employer. Another thing is the agreement of the parties.

A potential employer will not see anything bad in him;

the agreement of the parties allows to save the employee’s time, which can be spent, for example, when reducing the number of employees or staff;
an agreement between the parties allows us to agree on the amount of “compensation” for dismissal, as well as on the procedure for its payment.

Staff reduction (clause 2 of article 81 of the Labor Code of the Russian Federation). The applicant for dismissal should be provided with a list of vacancies that correspond to his competence - for example, a similar position, but in the regional branch of the company. If an employee refuses to move, a written refusal must be received from him. The employer must notify the employee of the reduction in writing at least two months in advance and not open a reduced position within a year.

Natalia Plastinina,head of Legal Support:

When applying the above grounds for dismissal, employers still make many mistakes: they do not offer all suitable positions; dismissed before the deadline specified in Part 2 of Art. 180 of the Labor Code of the Russian Federation; the employee is dismissed on time, but during his illness, which is prohibited by Part 6 of Art. 81 of the Labor Code of the Russian Federation; without waiting for expressing consent to vacancies or refusing them, they are already issuing a dismissal order; they do not care about the real basis for the reduction; they do not approve the new staffing schedule on time; the provisions of Art. 179 of the Labor Code of the Russian Federation on the pre-emptive right to leave at work; misses in the standard documentation.

For these and other reasons, there is still a high risk of declaring the dismissal to reduce staffing illegal and reinstating the employee at work, as evidenced by numerous judicial practice.

So, for example, in a labor dispute, the court concluded that the employee was dismissed before the expiration of the two-month period established by labor legislation from the day of notification of the impending reduction. In this connection, the court recognized the dismissal of the plaintiff employee under paragraph 2 of paragraph 1 of Art. 81 TC illegal, reinstated the plaintiff in the organization in his former position (decision of the Ugra District Court of the Khanty-Mansiysk Autonomous Okrug - Ugra (published on November 27, 2012).

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

Indeed, downsizing is one of the methods of dismissal that requires strict adherence to procedures. The employee is notified in writing about the upcoming reduction in 2 months, during which time he is required to offer in writing any vacant or newly created vacancy, the duties for which he can fulfill taking into account his qualifications. It is important to offer not only similar positions, but also subordinate positions. But positions in other regions are offered only if it is enshrined in a collective agreement or other local regulatory act of the company.

Also, one should not forget about the preemptive right to leave certain categories of employees at work.

Absenteeism (Sub. "A" p. 6, article 81). If the employee is absent from the workplace during the whole working day or for more than four consecutive hours, the dismissal occurs automatically. It is more difficult to dismiss an employee who is often late, but this is also possible if the time for starting work is prescribed in the internal labor regulations, in the employment contract, as well as in the collective agreement, if any, in the company.

Natalia Plastinina,head of Legal Support:

We note right away that one can never wait for such a basis from the average moderately responsible employee. Delays do not form such a reason for dismissal as absenteeism, since the time of absence of an employee does not reach 4 or more hours in a row. In addition, there is a high risk of improper recording of the event, improper qualification of absence as absenteeism, improperly prepared documentation for the formation of the basis provided for in paragraphs. “A” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation.

Cons of dismissal on this basis:

low probability of occurrence of the base itself;

a high probability of errors in the dismissal procedure on the named basis;

a high risk of contesting the dismissal due to its injustice, illegality, as well as to exclude an unseemly entry in the workbook;

in those organizations where there is no full-time lawyer, and the personnel management is entrusted to the secretary, all the above risks of erroneous actions of the employer increase significantly. The risk of recovering a dismissed truant is also increasing.
As practice shows, the regulatory authorities, which check employers and can recognize the dismissal order for truancy as illegal, do not sleep. What was done in Altai Territory by the State Labor Inspectorate. As a result of the audit, carried out on the basis of a citizen’s appeal, the state labor inspector found that in violation of Art. 193 of the Labor Code of the Russian Federation, the employer did not request a written explanation from the employee regarding his absence from the workplace, did not provide evidence confirming the absence of the employee during working hours without good reason, that is, he made mistakes in the procedure for applying the grounds for dismissal provided for p.p. “A” p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation.At the request of the state labor inspector, the order for dismissal by the employer was canceled. For violation of labor law, the director is brought to administrative responsibility in the form of a fine.

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

Even if an employee was absent from work for the amount of time necessary for absenteeism, it is hardly possible to automatically dismiss him. In any case, this will require strict observance of the procedure established by Article 193 of the Labor Code of the Russian Federation. Otherwise, the “automatic” dismissal for absenteeism may entail the restoration of the dismissed person with accrual of payment of time for forced absenteeism.

Inconsistency of the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation). The employer has the right to change the job description of the employee, warning him for two months. Then, in additional agreements to the employment contract with the employee, conditions are prescribed on the basis of which the indicators are considered to be unfulfilled. The values \u200b\u200bof indicators can be taken according to any schedule: once a week, month, quarter. If the employee fails, they are reprimanded, severely reprimanded, and then dismissed.

Natalia Plastinina,: Paragraphs 3 and 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - these are two different reasons. The basis of paragraph 3 -“Inconsistency of the employee of the position or work performed due to insufficient qualifications, confirmed by the results of certification” - in practice is difficult to achieve due to the fact that this ground does not occur. For its application, the employer will first have to approve the local act on certification (see part 2 of article 81 of the Labor Code of the Russian Federation), give employees time to prepare. Create a commission. Correctly fix the procedure and results. Give iron arguments for the inconsistency of the employee of the post. And after that ...

To offer the employee another job in his own company! This requires the employer part 3 of article 81 of the Labor Code of the Russian Federation. That is, all of the above actions may not lead to the end of the employment relationship if the employee agrees to the transfer to another position. Was the game worth the candle?

Clause 5 h. 1 Article 81 of the Labor Code of the Russian Federation offers a universal basis for dismissal - "repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction." There are some flaws in the job description changes described by Forbes Magazine: will the employee further challenge these changes? If, for example, you add the duty to sweep 4 production workshops into the job description of a building maintenance engineer, it seems that the court does not recognize such a change as legal and justified. And he will indicate to the zealous employer the correct guide in this matter - ETKS. In addition, we should not forget about the systematics of misconduct by the employee, which may not even form after the first punishment.

Although both bases may be applicable, their elusiveness and high risk of contestation do not make them popular.

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

In this case, a strange construction is described that has nothing to do with Russian law in general and with clauses 3 and 5 of Article 81 of the Labor Code of the Russian Federation in particular.

Firstly, a change in the job description is a change in the labor function of the employee, which is possible only by agreement of the parties. In this case, a warning for two or more months does not matter.

Secondly, to sign some additional agreements to the labor contract, the will of the employee is necessary, without which the agreements cannot appear. And if an employee refuses to sign additional agreements? Has the right to.

Thirdly, in order to apply such a reason as a mismatch of the position (clause 3 of article 81 of the Labor Code of the Russian Federation), certification must be carried out, only a negative conclusion of the certification committee can lead to the dismissal of an employee.

Failure to comply with internal labor regulations (Article 192 of the Labor Code of the Russian Federation). Information about the smoking ban, the need to comply with the dress code should be spelled out in the internal labor regulations, which all employees sign when they are hired. You need to understand that it is not enough for the employer to simply indicate “follow the dress code”. He is obliged to inform his employees in writing what kind of clothes the authorities consider suitable for working with a detailed description of the style and color of the clothes.

Natalia Plastinina,head of Legal Sector:

Of course, there is no such reason in the Labor Code of the Russian Federation. However, there is a previously considered basis, provided for by paragraph 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation - repeated failure to fulfill obligations. Yes, indeed, an employee can be punished both for smoking on the territory of the employer and for non-observance of the dress code under the following conditions:

the employer has all the local acts that these requirements are recorded accurately and clearly;
the employee is acquainted with the indicated acts for signature.

In case of violation by the employee of the specified requirements for the behavior of employees, the employer must in strict accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation to punish an employee. And only after the appearance of systematicity (two or more violations within a year) will he be able to dismiss an employee under paragraph 5 of paragraph 1 of article 81 of the Labor Code of the Russian Federation.
In my opinion, the most optimal option for parting with an employee for simplicity and validity among the proposed ones.

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

If in this case we are talking about termination of the employment contract on the basis of clause 5 of article 81 of the Labor Code of the Russian Federation (repeated non-performance by an employee without good reason of disciplinary action if he has a disciplinary sanction), then non-compliance with a dress code or a smoking ban are not the best reasons for dismissal, as they are not related to labor duties. Dismissal in accordance with Clause 5, Article 81 of the Labor Code of the Russian Federation is carried out when there has been a violation (non-compliance) of the provisions of the job description or employment contract.

Alcohol intoxication (sub. "B" p. 6 of article 81). A single appearance of an employee in a state of alcoholic, narcotic or other toxic intoxication is sufficient at his workplace in the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a labor function. But in order to use this method, the employer will have to provide the results of the medical examination of the employee as evidence.

Natalia Plastinina,head of Legal Support:

It is not always necessary to apply medical examination data (medical examination) to apply this basis.The state of alcoholic or narcotic or other toxic intoxication can be confirmed both by a medical report and other types of evidence, which should be accordingly assessed by the court (paragraph 42 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code Of the Russian Federation ”(hereinafter referred to as Decree of the Plenum of the Supreme Court of the Russian Federation No. 2). Since in most cases a drunken employee flatly refuses to undergo a medical examination (including in order to further challenge his dismissal), the employer will have to collect other evidence. They may become (inclusive , but not limited to):

the act of finding intoxicated;
certificate of refusal of medical examination;
notice of explanation;
an act of failure to provide explanations (drawn up after two days given to the employee for this);
etc.

As practice shows, with the correct and accurate approach of the employer to the preparation of documentation in such cases, the employee who appears at work while intoxicated cannot successfully challenge his dismissal.

So, in a dispute on the recognition of dismissal as illegal, the employer confirmed the fact that the plaintiff was intoxicated at the workplace with an act on being intoxicated; the act of refusal to undergo a medical examination; protocol on an administrative offense, explanations of witnesses. The court considered this sufficient evidence of the fact that the employee was intoxicated, and, therefore, a sufficient basis for termination of the employment contract under paragraphs. "B" p. 6 h. 1 Article 81 of the Labor Code of the Russian Federation. Having found no violations during the dismissal procedure, the court refused to recognize the dismissal as unlawful (decision of the Zheleznodorozhny District Court of Yekaterinburg dated March 21, 2012; determination of the Sverdlovsk Regional Court dated June 21, 2012 in case No. 33-7104 / 2012) .

But the most interesting question is different: will the employer wait for the employee to appear drunk at work?

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

In order to dismiss an employee for appearing at work while intoxicated, the presence of the results of a medical examination is desirable, but not necessary. An employee has the right to refuse to proceed to a medical institution. In this case, the employer has the right to confirm the fact of intoxication by an act that describes the signs of intoxication.

Disclosure of professional secrets (sub. "C" p. 6 of article 81). The disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his labor duties, including the disclosure of the personal data of another employee, is a serious violation of labor duties. At the same time, the concept of personal data is very broad, and theoretically, you can even dismiss for reporting to someone a colleague's home phone number.

Natalia Plastinina,head of Legal Sector:

In accordance with the provisions of Art. 139 of the Civil Code of the Russian Federation, information constitutes an official or commercial secret in the event that the information has actual or potential commercial value due to its unknownness to third parties, it is not legally available to it, and the information owner takes measures to protect its confidentiality. Information that cannot constitute official or commercial secret is determined by law and other legal acts. Persons who illegally obtained information that constitutes official or commercial secret are obligated to compensate for the losses incurred. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the terms of the employment contract, and on contractors who did so in violation of the terms of the civil law contract.

According to paragraph 43 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 in the event of an employee contesting the dismissal under paragraphs. “C” para. 6 h. 1 Article 81 of the Labor Code of the Russian Federation, the employer is obliged to provide evidence that the information that the employee has disclosed, in accordance with applicable law, relates to state, official, commercial or other secret protected by law, or to the personal data of another employee, this information became known to the employee in connection with the performance of his labor duties and he undertook not to disclose such information. It is with this evidence that the employer, as a rule, has problems. Before applying the grounds for dismissal provided for in cl. “C” para. 6 h. 1 Article 81 of the Labor Code of the Russian Federation, it should be clarified:

whether the organization has local acts defining information as a secret protected by law;
whether the employee is familiar with these acts;
whether he undertook not to disclose certain information;
did the leak really come from this employee and how is this confirmed?

Remember: an ordinary worker may not know the provisions of regulatory acts, laws of the Russian Federation. He may be legally completely illiterate. And only if he is familiarized by the employer with a local act based on the norms of laws, he will already be recognized as aware that certain information is a secret. And it will be possible to punish him for disclosure only after he signed a non-disclosure obligation. But the presence of all these documents, as practice shows, does not minimize the risk of recognition of dismissal on the above grounds as unlawful.

So, the court, considering the case with similar circumstances under consideration, considered that the employerno evidence of violation by the employee of his duties, in particular regarding non-disclosure of trade secrets, is presented. The court indicated that the arguments of the employer are presumptive and cannot serve as the basis for disciplinary action in the form of dismissal. Since there is no evidence in the case that the employee clearly disclosed information relating to the commercial secret of the company, the court recognized the dismissal in paragraphs. “C” para. 6 h. 1 Article 81 of the Labor Code of the Russian Federation is unlawful and changed the wording of the grounds for dismissal in paragraph 3 of part 1 of article 77 of the Labor Code of the Russian Federation (of one’s own will) (decision of the Leninsky District Court of Perm dated April 6, 2012; appeal ruling of the Perm Regional Court of October 3, 2012 in case No. 33-8900).

Change in basic working conditions (Article 74 of the Labor Code of the Russian Federation). The employer has the right to change the work schedule or wage conditions by warning employees two months in advance. And here a huge space of opportunities opens for the employer, and employees are forced to either agree with them or quit on their own. For example, an objectionable employee can be offered piece-rate wages, transfer production to a round-the-clock schedule, and then many employees will prefer to abandon night shifts.

Natalia Plastinina,head of Legal Sector:

The provisions of this article are too rosy. Employers should not be so optimistic about their rights. Firstly, Art. 74 of the Labor Code of the Russian Federation requires a rigorous justification of the reasons for changing the terms of the employment contract with the employee. According to Part 1 of Art. 74 of the Labor Code of the Russian Federation only “reasons associated with a change in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons) are allowed. Secondly, the employer will have to be ready to prove that the terms of the contract of employment determined by the parties could not be saved. Thirdly, under no circumstances does the law allow changing the labor function of an employee.

Changing the terms of an employment contract has strict regulation of the process:

written review of upcoming changes;
written justification of the reasons for the changes introduced;
job offers during the entire warning period;
the correct fixation of all consent and refusals of the employee (from signing, from vacancies, etc.);
dismissal no earlier than the expiration of the warning period;
payment of severance pay in the amount of two-week earnings (Article 178 of the Labor Code of the Russian Federation).

Not an easy procedure, right? In addition, it must be borne in mind that the employee can and ... agree to new working conditions. Or agree to take one of the proposed vacancies. Then it will be necessary to look for another reason for parting?

Given the high risk of contesting dismissal on the basis under consideration, it is worth considering the choice of this basis for dismissal.
As an example of a successful contest, one can find the decision of the Koryazhemsky city court in case No. 2-12, in which the court did not recognize if the employer had grounds to change the terms of the employment contract and, therefore, the grounds for dismissal under paragraph 7 of Article 77 of the Labor Code of the Russian Federation (refusal to continue work in connection with a change in the terms of the employment contract specified by the parties). Until the court resolves the dispute, the defendant canceled his order and reinstated the employee at work).

Anna Ustyushenko,partner, Head of Practice, INTELLECT-S Law Group:

The application of Article 74 of the Labor Code of the Russian Federation is not possible in all cases. As a general rule, a change in the terms of an employment contract (and wages, a work schedule are essential terms) is made only by agreement of the parties (Article 72 of the Labor Code of the Russian Federation). And only if the technological or organizational working conditions change, the employer has the right to apply the provisions of Article 74 of the Labor Code of the Russian Federation and unilaterally change the terms of the employment contract, warning the employee about this for two months. It should be borne in mind that in the event of a dispute, the obligation to prove the fact of a change in the technological or organizational working conditions lies with the employer.

Non-fulfillment of labor duties (Clause 5, Article 81 of the Labor Code of the Russian Federation). Most often, the employer applies this wording when other legal methods of dismissal have already been exhausted or are not suitable. In this case, the employee may be given an impossible task, and then require an explanatory note on the reasons for non-performance.

(see the comment above - “Non-compliance with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”)

Unsatisfactory certification results (Clause 3, Article 81 of the Labor Code of the Russian Federation).The company should have a provision on certification, and the certification committee should include persons with a professional understanding of the work of employees subject to certification. The commission reflects all decisions in the protocol. If the results of the audit are unsatisfactory, the company has the right to dismiss the employee, but only after he refuses the new job offered to him in the same company that is of relevant qualification or lower and with less income.

(see the comment above - “Non-compliance with the position held (clauses 3 and 5 of article 81 of the Labor Code of the Russian Federation”).

Natalia Plastinina,head of Legal Sector:

Carrying out a general analysis of the reasons presented by the magazine, we can conclude that each of them has its own disadvantages and entails the occurrence of certain risks. Even proper observance of the dismissal procedure does not always entail the recognition of dismissal as legal and reasonable. Employers may be advised to use the simplest grounds and statutory termination procedures in their activities. For example, dismissal for repeated failure an employee without good reason for labor duties, if he has a disciplinary sanction (clause 5 part 1 of article 81 of the Labor Code of the Russian Federation) or dismissal for the employee appearing at work (at his workplace or in the territory of the organization - the employer or facility, where, on behalf of the employer the employee must fulfill the labor function) in a state of alcoholic, narcotic or other toxic intoxication (subitem “b”, para. 6, part 1, article 81 of the Labor Code of the Russian Federation).

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

How to fire an employee without his will under the law in 2018

Situations in which an employer wants to dismiss an employee without his will by law are extremely common in 2018 - some employees may take actions that are clearly destructive for the company, fail to comply with the team and spoil the work environment, or the need for dismissal may also be caused by external circumstances. Moreover, very often employees take advantage of the fact of protection from the legislation and in every way impede their dismissal. Therefore, with illiterate actions, the employer is either forced to endure their presence and incur certain costs because of this, or is at risk of being held liable for illegal dismissal.

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

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

There are some categories of employees that cannot be dismissed on the initiative of the employer under any circumstances. In particular, a pregnant employee cannot be dismissed even when committing gross misconduct and guilty acts against the employer. The ability to fire an employee who has a child under three years of age is also limited if this employee is a woman or the sole breadwinner.

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

How to make an employee quit of his own free will or agreement

In many situations, even in conflict situations, if it became necessary to get rid of an unwanted employee, employers simply do not know how to force the employee to resign at his own request or to convince him to stop working by agreement of the parties. At the same time, there are enough possible actions that can be taken to ensure that the employee makes the right decision, even when he is initially configured to conflict with the employer.

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

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

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

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

In general, these methods of action are legal, but cannot guarantee an absolute result. Therefore, if they fail, you will have to use other techniques. It should be noted that even the dismissal of one's own free will can be challenged in court if it was carried out with coercion. Therefore, the employer should properly record all his actions and the actions of the employee in the process of persuading the latter to quit. If the dismissal was carried out by agreement of the parties, then the judicial practice demonstrates the minimum number of decisions in favor of the employee, since such dismissal is almost impossible to challenge.

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

How to fire an employee for a gross violation

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

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

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

In any case, this procedure can be challenged by the employee in court, and the judicial authorities impose the obligation on the employer to prove the validity of the dismissal. It should be remembered that during absenteeism, the employee cannot be dismissed if the state of intoxication was not recorded by authorized persons - the employee cannot also be dismissed, disclosure of secrets or personal data should have all signs of disclosure.

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

How to dismiss for non-compliance or insufficient qualifications

If the employee does not correspond to the position or is insufficiently qualified, the employer has the right to terminate labor relations with him. It should be remembered that this basis for the dismissal should indeed take place and certain evidence. In addition, the establishment of qualifications and compliance with the official requirements of the employee should be carried out in independent centers for the assessment of qualifications, and the employee has the right to challenge their decision.

You can read more about dismissal for non-compliance. However, the employer should be aware that fictitious dismissal for this reason will in any case be unlawful. In addition, the employer himself will have to pay for the confirmation of employee qualifications.

An obligatory step before dismissal on this basis is to offer the employee positions that suit his qualifications. The final termination of the relationship will only be possible if there are no such positions at the enterprise, or if the employee refuses to occupy them.

How to fire an employee without his will under the law by changing the terms of the contract

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

In this case, the employer only needs to notify workers 2 months in advance of changes in working conditions, including the place of work, the size or system of payment, job responsibilities, in connection with the reorganization of production processes. The fact of the reorganization itself must also be confirmed by internal regulatory acts. Employees who do not agree with these changes should be given the opportunity to occupy any other vacant position in the enterprise that is suitable for their qualifications and health - and only after their refusal or in the absence of the indicated positions can they be dismissed.

How to fire on probation

If an employee must be dismissed without his will on a trial period, the provisions of the current legislation give the employer additional opportunities to carry out this procedure. In particular, he can inform the employee of his failure to pass the test at least three days before the actual dismissal. In this case, the employer in case of disputes should take into account the following nuances:

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

Therefore, basically contesting dismissal on a probationary period is based precisely on the two foregoing grounds. And it is the employer who should worry about the availability of all documents confirming both the legality of the probationary period and the validity of the dismissal due to unsatisfactory test results.

How to cut an employee without his desire

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

Advance notice of layoffs. Employees must be notified at least two months in advance of a reduction.
Mandatory notification to all regulatory authorities. Namely - the trade union organization, the employment center.
Providing severance pay to employees. It is paid at least in the amount of two-month average earnings of employees.
Fulfillment of social guarantees in relation to certain categories of employees. Such guarantees include a complete ban on the reduction of certain workers, as well as the availability of workers the right to preferential abandonment at the workplace.
The offer of all vacant posts. The employer, as in many other situations, is obliged to provide deductibles with the opportunity to find other vacant jobs suitable for them.

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

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

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

Particular difficulties can be brought to the employer by an attempt to dismiss a pensioner without his will under the law in 2018. In practice, there are no regulatory documents that specifically regulate the procedure for dismissal or retirement of pensioners. An exception is the civil service of any nature - in this case, the age limit at which an employee can be in office is 65 years old and he will not be able to challenge such dismissal.

It should also be remembered that the dismissal of managers upon a change of ownership is allowed without any other grounds for terminating the employment contract. But you need to understand that leadership positions in this context include only the direct manager of the enterprise, his deputy, as well as the chief accountant.

Almost any person at least once in his life worried that he could be fired from his job. Some people in this fear live permanently, both those who periodically commit violations, and conscientious workers.

Let's see what exactly the employer has the right to dismiss an employee for, and why not.

Dismissal due to downsizing

First of all, it is worth highlighting the dismissal in connection with the reduction in the number of personnel. They resort to it when the enterprise management believes that the content of a particular position or a number of posts is not economically viable.

By and large, there is no personal fault in such dismissal of an employee, although managers sometimes use it to get rid of unwanted employees.

This type of dismissal is made entirely at the initiative of the employer. True, there is a limited circle of persons to whom it cannot be applied. This, for example, pregnant women, underage workers, single mothers. These and some other categories of persons cannot be dismissed from their job by job managers.

But at the same time, there is a much larger circle of people who do not fall under the ban on dismissal to reduce jobs. For these employees, in order not to fall under the reduction, it is very important to prove to the company administration the importance of their position, as well as the personal benefit that this employee brings to the organization.

That is, in order not to be dismissed by the reduction, first of all, you need to like the company's management and prove your worth.

And for the leadership of the company, the main thing to remember is that you need to reduce not a specific person, but a position. That is, after the dismissal of an employee to reduce his job, no one can be hired instead, and this position should be removed from the staff list.

In the opposite case, such dismissal may be declared unlawful by the court, and the employee will be reinstated at his former place of work.

Dismissal in connection with the termination of the enterprise

If in the previous paragraph the employee could at least somehow influence the likelihood of his dismissal, then the ordinary employee can hardly prevent the loss of work in connection with the liquidation of the enterprise.

Even if he makes every effort to work for the good and prosperity of the company, his efforts can bring real results and prevent the collapse of the enterprise only if other employees of the organization make similar efforts.

Dismissal for violation of the work schedule

Dismissal for violation of labor discipline is a fairly common way of dismissal, which is often applied to negligent employees. So, under this paragraph, they can dismiss for:

regular lateness to work;
absenteeism;
the appearance in the enterprise in a state of intoxication;
theft of company property or embezzlement of financial resources;
damage to values;
disclosure to third parties of trade secrets.

A prerequisite for this type of dismissal is a strict fixation of all violations in accordance with the procedure established by law. It should be noted that with each act of violation the employee must be personally acquainted. He should also be asked to give a written explanation of what happened.

The employee has the right to choose whether to give explanations or refuse to give. True, the latter will be regarded as a confession of guilt. In case of refusal to provide explanations, the management of the company must draw up a corresponding act with the signatures of witnesses.

If the employer made a mistake somewhere during the dismissal procedure, then in the future the dismissed employee, even if there are real violations, can easily recover through the court.

Dismissal for non-compliance with the position held

But dismissals under this article are relatively rare, since it is quite difficult and problematic to prove the discrepancy of a particular person to his position. For this, it is necessary to create a certification commission, which should establish whether the person’s abilities and knowledge are assigned to their responsibilities.

But even if the commission recognizes that the person is not suitable for the position, the employer is obliged to offer him another type of employment that will correspond to his professional skills.

And only if the employee refuses this offer, it will be possible to dismiss him from work as a person who does not correspond to his position. However, the decision of the certification committee can still be discharged by employees dismissed in court and, thanks to his decision, to reinstate in the workplace.

Due to the complexity of the procedure and the lack of a guaranteed result, employers are trying to dismiss employees under other articles of the Labor Code, and they are turning to dismissal for non-compliance with their posts when all other options have failed.

Amoral behavior

According to the current Labor Code, they can also be fired for immoral behavior. True, this paragraph can only be extended to workers in various educational institutions (schools, boarding schools, etc.) and is in fact not applicable to most existing professions.

As in the case of dismissal for violation of labor discipline, the essence of an immoral act must be recorded in the corresponding act.

Refusal by an employee to fulfill his duties

If you refuse to fulfill the duties assigned to you by job descriptions, the head of the company has every right to dismiss you from work. In addition, according to the law, the employer has the right to change working conditions, in particular the work schedule, the list of duties to be performed, the amount of payment, and so on.

The truth about this, he is obliged to notify the employee two months before the application of the changes. If an employee refuses to comply with these requirements, then he may be fired. Also, the refusal to move to another locality if the organization you work for moves there can be attributed to this item.

Dismissal upon change of ownership of the organization

If the company has changed its owner, then it has the right to dismiss the management of the company: director, his deputies, chief accountant. For ordinary employees or middle and lower managers, this right of the owner of the company does not apply.

In addition, the new owner is obliged to offer other jobs to the former management of the company, and in case of their refusal to start the dismissal procedure.

Who should not be fired under any circumstances?

The labor legislation stipulates a list of persons who cannot be dismissed under any circumstances. These persons include women expecting a baby, underage employees of the enterprise, trade union leaders. These workers can only be fired if the company is completely liquidated.

But this does not mean that they can afford behavior that does not correspond to the work schedule of the enterprise, or improperly fulfill their immediate duties, since the managers of the enterprise, in addition to dismissals, have tools that can affect a negligent employee. For example, reprimand or loss of bonus.

Persons on vacation (tariff, at their own expense, maternity, child care, etc.) or who are on sick leave due to temporary incapacity for work cannot be dismissed until they go to work. They can only be fired on the day when they take up their duties.

In addition, there is a circle of people who cannot be dismissed by the reduction, but can be dismissed at the initiative of the administration in accordance with another article. For example, for violation of the work schedule. These include single mothers and women with children under three years of age. If the child does not have a mother, the same rule applies to any person who officially takes care of him.

Output. As you can see, the employee can be fired from work for very different reasons. Sometimes these reasons largely depend on himself (in case of violation of labor discipline), and in other cases they are completely independent (in case of liquidation of the enterprise).

But in any situation, a qualified and responsible employee is more likely to stay in his workplace than an employee who comes to business through the sleeves or violates the order established in the enterprise. Persons negligently related to their duties, in any organization are the first on the list for dismissal.

The most common method of dismissal is the termination of the employment contract at the initiative of the employee. Along with dismissal by agreement of the parties, he is also one of the most conflict-free, since at the same time, as a rule, the parties to the employment contract rarely have claims against each other. The very wording of the grounds for dismissal suggests that it is carried out precisely on the personal will of the employee. It is important to remember this, because if it is subsequently established that the employer in one way or another encouraged the employee to make such a decision, the dismissal may be deemed unlawful and the employee reinstated ().

On the whole, the procedure for terminating an employment contract on this basis does not represent any particular difficulty. We will analyze the algorithm for dismissing an employee of his own free will step by step.

Step 1. Accept a letter of resignation from an employee

The procedure for dismissal of an employee begins from the moment he submitted a written letter of resignation. Recall that he can do this no later than two weeks before the date of dismissal, unless otherwise specified by law (). The specified period begins on the day after the employee submits an application. Before accepting an appropriate application from an employee, we advise you to check how it is completed. The law does not establish requirements for its content, however, when determining the date of dismissal, it is advisable to avoid the pretext "c" - this may introduce confusion in understanding the last working day. For example, instead of “please dismiss me from August 1, 2017 ...”, it is better to indicate “please dismiss me on August 1, 2017 ...” In this case, August 1, 2017 will definitely be considered the last day of work.

Refer to the legal positions of the courts when considering disputes related to termination of an employment contract at the initiative of an employee. Encyclopedias of Judicial Practice Internet versions of the GARANT system. Get
3 days free access!

Step. 2. Observe the termination notice

As a general rule, this period is two weeks (). However, there are exceptions - so, during the test period, the employer must be warned no later than three days in advance, and when the head of the organization is dismissed, at least one month in advance (,).

The employer is not entitled to increase or decrease this period on his own initiative. Before the expiration of the warning period provided for by law, an employment contract may be terminated only by agreement between the employee and the employer.

In addition, the employer is obliged to dismiss the employee precisely at the time that he indicated in his application if:

the employee cannot continue to work (for example, when enrolling in an educational organization, retirement, etc.);

it was found that the employer violated labor laws, local regulations, etc.

An employee has the full right to withdraw his application before the expiration of the termination notice, that is, even on the last day of work (). Dismissal in this case is not made. The only exception is the situation in which the employer has already managed in writing to invite another specialist to the place of work, who cannot be refused a labor contract - for example, an employee invited to the organization by transfer from another employer ().

It is also important to keep in mind that an employee can exercise his right to leave with the subsequent dismissal of his own free will (). In this case, the employee is entitled to withdraw his application only until the day of the start of the vacation ().

Step 3. Issue a dismissal order (form No. T-8 or T-8a)

If the employee has not withdrawn his application, then on the last day of his work, the employer proceeds to the dismissal procedure. First of all, the personnel department draws up an order to terminate the employment contract (or). The wording of the reason for dismissal may be as follows: "Employee Initiative,".

An employee must be familiarized with the order to terminate the employment contract against signature on the day of dismissal (). At the same time, the employer must give him a certified copy of this order if he makes such a request.

Step 4. To issue a certificate of the amount of earnings for the two calendar years preceding the dismissal

By the last day of the employee's work, the accounting department must issue a certificate of the amount of his earnings for the two calendar years preceding the dismissal. This certificate will be needed by the employee to calculate benefits from the new employer. Appropriate approved.

The certificate is issued to the employee on the last day of work. However, it is worth noting that the employee has the right to apply for it with a written application after dismissal - in this case, the employer is obliged to issue a certificate within three business days from the day the former employee submitted the corresponding application (paragraph 3 of part 2 of article 4.1 of the Federal Law of December 29, 2006 No. 255-FZ "").

The particulars of filling out and issuing this certificate can be clarified in letters of the FSS of Russia dated June 20, 2013 No. 25-03-14 / 12-7942 and dated July 24, 2013 No. 15-02-01 / 12-5174l.

Step 5. Draw up a document containing information that was sent to the FIU for the period of the employee’s work

On the last day of the work of the accounting department, also issue a document to the employee that contains information sent to the FIU for the period of the employee’s work (Clause 2-2.2 of Article 11 of the Federal Law of April 1, 1996 No. 27-FZ "").

There are no special forms for transferring such information to an employee, therefore, one should be guided by the forms approved by the FIU for submission of relevant information to the agency. For example, form SZV-M (), section 6 of the form RSV-1 PFR (), etc.

Step 6. Make an entry in your personal card (form No. T-2)

Before the employee is dismissed, the personnel department must also make an appropriate entry in his personal card (). In the "Grounds for termination of the employment contract (dismissal)," the reason for the dismissal must be stated: "Employee Initiative,". In the line "Date of dismissal" - indicate the last day of work. Then you should enter the details of the order on the termination of the employment contract - its date and number. Information about the dismissal must be certified by an employee and an employee of the personnel department.

Step 7. Issue a note-calculation on the termination of the employment contract (contract) with the employee (form No. T-61)

On the last day of work, the personnel department together with the accounting department fill out a calculation note on the termination of the employment contract with the employee (). An employee of the personnel department makes on the front side of the document general information about the employee, as well as information about the dismissal and the fact of termination of the employment contract with him. And on the other side, the accountant calculates the amount due to the retiring employee.

The employer is not required to familiarize the employee with the calculation note.

Step 8. Settle the employee

On the last day of work, the accountant must give the employee a salary for the hours worked, compensation for unused vacation, if it is due to him, and make other payments (

first indicate its serial number;

then the date of dismissal;

then the reason for the dismissal is prescribed with reference to the corresponding paragraph, part and article: "The employment contract is terminated at the initiative of the employee,";

in conclusion, the name of the document on the basis of which the entry is made is filled in - most often it is an order to terminate the employment contract, its date and number.

This record is certified by the signatures of the personnel department employee and the employee to be dismissed, as well as the seal of the organization (paragraph 35 of Decree of the Government of the Russian Federation of April 16, 2003 No. 225 "").

Step 10. Prepare and issue to the employee at his request certified copies of other documents related to the work

Upon the written application of the employee, the employer is obliged to issue him duly certified copies of documents related to the work (). This can be a copy of the order for hiring, orders for transfers to another job, extracts from the work book, certificate of salary - for example, a certificate of income of an individual in form and a certificate of average earnings for the last three months, which is necessary to obtain and etc. ().

Ekaterina Dobrikova ,
portal expert editor

Documents

Business owners often come to me for consultations with the question of how to quickly and as painlessly and, most importantly, break even for the company to dismiss a negligent employee. In this article, I will not describe in detail the legal subtleties, but will focus on the dismissal algorithm, psychological aspects and tell you how to dismiss, so that they get out of this procedure with minimal negative emotions, and in a simple way - no offense, and that who gets fired, and whoever gets fired.

Consider a typical situation.

So, after much deliberation, you as a director have come to the conclusion that Ivanov’s sales manager does not suit you at all for his professional and personal qualities. There are less and less revenue, it does not attract new customers, and from the old, apparently, it already has “kickbacks”. In addition, she is always dissatisfied with everything, does not say hello, and yesterday she called an accountant a fool. You wouldn’t see Ivanova in the workplace before half-past ten, but at five past seven she was blowing her away like the wind.

You come to bookkeeping (it’s also the human resources department) with the phrase: “Ivanov must be fired. First, try out ... of our own free will. "

Reasons: Why are you firing?

To fire an employee, you need to clearly know for yourself why you are doing this. Why know clearly? So that consciousness does not wander. Set a goal to fire - fire. Next, we determine the reason.

I identified five main reasons for dismissal:

unprofessionalism of the employee. Not enough knowledge, skills, experience. And there is no desire to receive them. Lack of employee motivation. The probationary period has already passed, the person thinks that it is no longer necessary to study, and automatically does some work. This does not suit you. Its influence on the team is negative. A person is constantly dissatisfied, he infects the entire team with his dissatisfaction and attitude to work. He is a virus that needs to be localized and neutralized, until he paralyzes the entire team. And here I will please you, because you have already localized it: you already have doubts about it. It remains to neutralize. Disrespect for the leader. The employee undermines the authority of the leader. It causes sabotage at work, it infects other people. It shows how you can communicate with you in a familiar and bold way. Are you ready for the fact that soon all your employees will begin to communicate with you the same way? No - that means, make an indicative dismissal. The employee’s mission mismatch (goals - what is he working for) with the company's mission. This is visible when applying for a job. If the main goal of the company is development, and the person has other values, then it will be difficult for you to find a common language, and you will still disperse. In theory, you should have noticed this during the interview, but for some reason you didn’t immediately notice ... It's okay - there is always a way out.

Why are you afraid to fire?

It is always not easy to dismiss, and all leaders in every possible way delay this unpleasant moment. Even businessmen with a pronounced authoritarian management style, who can scream, stomp their feet and spit saliva on an offending employee, have difficulty dismissing employees.

The reasons are usually psychological. From experience, I distinguish three main:

Reason 1. Pity for the negligent employee. Because this useless, incompetent, undisciplined worker has a family, and you leave him an innocent household without a livelihood.

Or it often happens this way: it does not work out with work, but otherwise it is a very good person, everyone in the team loves him.

Solution 1: calculate how much it costs to maintain such an employee and how much he brings you income - pity will pass right away.

Pick up a calculator and multiply its monthly salary by twelve (do not forget to add to it tax and social contributions).

For example, how much is pity?

25,000 rubles x 12 months \u003d 300,000 rubles per year.

Those who wish can also take into account the cost of the current maintenance of this employee. For an office employee, these are expenses for a phone, Internet connection and e-mail, the purchase of components and office supplies, etc. In general, there are enough expenses.

Perhaps, after receiving the final figure, your pity for the dismissed person will not only decrease significantly, but will even turn into indignation, or at least pity for the lost money, which you will probably find better use.

However, if you want to be generous, you can pay the employee a severance pay. This will cost you much less than monthly salary payments that he did not earn.

Solution 2: realize that by firing, you give a person a chance to find a job for everyone!

I will give an example from practice - from the story of a happy dismissed person:

“Having realized what I like, I was preparing for its implementation for another year and as a result I left my engineering position in the sphere of“ working with people ”. When I began to go about my business, my happiness knew no bounds. The constant stress disappeared from the realization that “tomorrow we will be back to work”, there was no irritation and negativity in the workplace. There was a desire to talk about this with friends and relatives, and share new things that you find and learn every day. And if sometimes I had to work hard, then the fatigue was pleasant. ”

Reason 2. Pity for myself and for my energy spent: I taught him so much, and here again I will have to look for another and re-train. And where and how to look for new employees? Again this personnel headache!

Solution: see solutions in “Reason 1”.

Reason 3. Fear that the employee will be angry and there will be some problems: “poison” the tax service, scratch the car, spread gossip, lead customers away, etc.

Solution: the main thing is to part amicably. It is necessary to enable a person to make this decision himself. If he does not want to, then create such conditions so that he has no choice. Do not be afraid, you are right.

How to fire?

Your task is to make sure that the employee himself understands that he is not doing the job, or create conditions for him so that he again decided to leave voluntarily.

Clearly identify his motivation and artificially remove it. Example: if motivation is professional growth, then explain that there will be no growth. If the motivation is proximity to home, say that this product item will move to a warehouse in the other end of the city. If the motivation is communication, “please” him that he will soon switch to work only with a computer, etc. Give the employee a difficult task, obviously impossible: “Go there - I don’t know where, bring it — I don’t know what ...”. He will not cope, because he does not have enough professional experience, because the task itself is difficult (if at all feasible).

For example, if the dismissed person works as a marketing manager or is responsible for sales, then you have the power to drastically increase the plan and also require the speedy conclusion of contracts with the most unattainable, but desired, customers and customers.

If an employee copes with an impossible mission, that’s fine. Maybe then the need for dismissal will simply disappear.

If the miracle does not happen, then there will be a formal reason for a sympathetic sigh: "It's a pity, of course, but you yourself see that nothing works out with you."

Ask the employee for money to pay for his training (so that he paid a year in advance). Speak that there will be certification soon - he may be scared. Change the working conditions. Create stricter rules, standards. Many people are afraid of change. Tell us about possible changes in the company.

Emergency insurance

In my practice, there was a case when I had to fire an excellent specialist with excellent performance due to unacceptable behavior at a corporate holiday. He was very drunk when he climbed onto the stage and, sorry, took off his pants at the very moment when our CEO from London was broadcasting a congratulatory speech. This sight was watched by 600 people from different regions of the country. “Fire! - immediately followed the order. - For bad behavior!"

It was difficult for me to explain to the sober employee in the morning what I want to fire him for, but my safety net (preliminary collection of explanatory notes on minor violations) allowed me to do this.

It is convenient to not be especially conscious to dismiss for non-observance of labor discipline: multiple delays, absenteeism, etc. In order for this method to “work”, the employee’s employment contract and internal labor regulations must specify when the work day begins and ends.

Be sure to record lateness in the timesheet. When the employee once again does not appear on time at the workplace, create a commission and draw up an act of being late. After the employee remakes all his personal files and appears in the office, ask him for written explanations (Article 193 of the Labor Code). Refuses to write an explanatory note - create a commission and draw up an act of refusal. The commission should include the head of the department, an employee of the personnel department, two or three witnesses (for example, a security guard or secretary).

It’s quite easy to “find fault” with trifles - I was late for two minutes, I left one and a half earlier - you are preparing an act and based on it - a written comment. Workers, as a rule, try to challenge the reprimand, but somehow do not pay attention to the comments. Then you update these comments from time to time. As soon as the negligent employee commits the first serious violation, you issue a reprimand. And here is paragraph 5 of Article 81 of the Labor Code - repeated non-performance of labor duties in the presence of disciplinary action!

It is better not to rush with the order on dismissal on this basis. Wait for the moment when the employee’s personal file contains a few acts of delay, comments and memos: if it comes to court, it will significantly increase your chances of winning.

How to talk with a dismissal candidate

Preliminary conversation. Give a second chance? We set out plans, tasks. We determine the minimum terms and specific results. Tightly controlled!

The conversation is basic and decisive. During it, you need to make a person understand that he is significant, but your paths diverged. You are ready to help him in the future device, do not hold him angry, give recommendations, if necessary. Use the last conversation with the employee and in order to identify problems and shortcomings in your team, ask him for advice.

After dismissal

Do not give negative characteristics if other companies ask.

On a separate die at the end:

Tip:
Make a profile of the candidate that you need, starting from a visual example of an employee that you do not need!

From my own experience

I’m firing quickly, without practicing, in compensation for paying the salary that a person would receive at the end of the month.

I always share the professionalism and personality of a person. With a mutual desire, you can remain in good and even friendly relations.

And I will end the article with a statement by Steve Jobs: “Do not let the eyes of others drown your own inner voice. And it is very important to have the courage to follow your heart and intuition. One way or another, they already know what you really want to do. Everything else is secondary. ”