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How to fire when an employee does not want to leave. Dismissal when essential conditions change


What are the options? Under these circumstances, the employee is obliged to fulfill the labor duties stipulated by the employment contract, that is, to perform work in the position provided for by the employment contract. If an employee refuses to perform his job duties, then there are grounds for bringing the employee to disciplinary liability up to and including dismissal at the initiative of the employer (Article 81 Labor Code RF). IN in this case, I believe that if an employee refuses to perform the work stipulated by the employment contract, it is advisable for the employer to impose a disciplinary sanction on the employee.

The employee does not fulfill his job duties. methods of dismissal according to the rules

Attention

One of the most difficult grounds for termination employment contract with an employee is the employee’s repeated failure to fulfill his job duties without good reason (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). Dismissal under this article is not only unpleasant for the employee, but also risky for the employer, since any mistake during registration may lead to the subsequent reinstatement of the employee and payment for the time of forced absence.


Before applying disciplinary sanctions to an employee, including dismissal, the company needs to make sure that two mandatory conditions are present. 1) Labor duties for violation of which the company plans to hold the employee liable must be properly assigned. Otherwise, the application of disciplinary sanctions, including dismissal due to repeated failure to fulfill labor duties (clause
5 hours 1 tbsp.

The employee does not perform functional duties. how to punish?

Important

Although the priest, removed from the priesthood and removed from the staff of the Saratov Diocese, had work book with a record of dismissal, the courts of two instances decided that the Labor Code did not apply to him. Simplified tax system for recruitment agencies. Clarifications from the Ministry of Finance From January 1, 2016, the Tax Code introduced a ban on the use of a simplified taxation system for organizations involved in the selection of employees.

Officials told who exactly lost the opportunity to pay taxes in a preferential regime. A chapter on social contributions will appear in the Tax Code. The Ministry of Finance has developed a draft to include requirements for the calculation and payment of fees to the Pension Fund of the Russian Federation, the Social Insurance Fund and the Compulsory Medical Insurance Fund in Tax code RF.

Officials decided not to change it yet current system social contributions.

An employee fails to fulfill his or her duties without good reason job responsibilities, but no violations of labor discipline were identified: no absenteeism, no gross violations, no disciplinary sanctions. What measures of influence can be applied to him? Source: personnel directory According to Art.


21 of the Labor Code of the Russian Federation, an employee is obliged to conscientiously fulfill his labor duties assigned to him by an employment contract, and to fulfill established standards labor. Therefore, for failure to perform or improper performance by an employee through his fault of the labor duties assigned to him, the employer, in accordance with Part.
1 tbsp. 192 The Labor Code of the Russian Federation has the right to apply the following disciplinary sanctions: reprimand, reprimand, dismissal on the grounds provided for in paragraphs. 5, 6, 7, 8, 9 and 10 hours 1 tbsp. 81, paragraph 1, art. 336 Labor Code of the Russian Federation. In this case, you have the right to apply disciplinary action to the dishonest employee.

What to do with an employee who refuses to perform work under the contract

Info

The employer needs not only to formally establish the presence repeat violation in the event of an unresolved and outstanding disciplinary sanction, but also take into account a number of factors: the severity of the offense, the circumstances in which it was committed, the employee’s previous behavior, his attitude to work (part 5 of article 192 of the Labor Code of the Russian Federation, paragraph 53 of the resolution of the Plenum of the Armed Forces of the Russian Federation dated 03/17/04 No. 2). The presence of such factors can be proven using internal memos, reports based on the results of investigations into violations, and commission protocols in which the employer recorded all the circumstances of the violation.


The dismissal is completed by signing an order (form T-8), which indicates the details of the orders that imposed previous penalties, and the basis documents for application disciplinary action in the form of dismissal.

How to fire an employee who does not fulfill his job duties

Labor Code of the Russian Federation). This must be done in writing and handed to the employee against signature, preferably in the presence of witnesses. If the employee has indicated reasons for not fulfilling his job duties, the company determines whether they are valid. IN judicial practice appearance when summoned to a meeting is considered valid reasons law enforcement agencies, illness, as well as other circumstances beyond the employee’s control (for example, equipment failure). Sometimes the employee immediately refuses to explain. Refusal to give explanations is not an obstacle to disciplinary action, including dismissal (paragraph 2 of Article 193 of the Labor Code of the Russian Federation). But immediately drawing up a notice and order of dismissal is risky, since the employee has two working days to give explanations (paragraph 1 of Article 193 of the Labor Code of the Russian Federation). It is possible that the employee will still provide explanations on time.
The day the violation was discovered is the day when the violation became known to the employee’s immediate supervisor. Disciplinary action for general rule cannot be imposed on an employee if more than six months have passed since the commission of the offense (Part 4 of Article 193

Labor Code of the Russian Federation). In addition to violating the above requirements, companies often make other mistakes that can lead to dismissal being considered illegal, for example: - Application of penalties not provided for by labor legislation. Labor legislation provides for only three types of disciplinary sanctions: reprimand, reprimand and dismissal.

However, employers often use other wording, announcing warnings, warnings, severe reprimands, etc. to employees.

What to do if an employee refuses to perform his duties

The employee does not perform his job duties. Ways to formalize dismissal in accordance with all the rules The procedure for dismissal for failure to fulfill job duties What to do if an employee refuses to give an explanation What mistakes in the procedure are most often made by employers One of the most difficult grounds for terminating an employment contract with an employee is the employee’s repeated failure to fulfill his job duties without good reason ( clause 5, part 1, article 81 of the Labor Code of the Russian Federation). Dismissal under this article is not only unpleasant for the employee, but also risky for the employer, since any mistake during registration may lead to the subsequent reinstatement of the employee and payment for the time of forced absence.

This article is about what an employer needs to take into account if it is necessary to fire an employee on such grounds.
Question: Is it legal for the provision of the internal labor regulations that establishes such a disciplinary offense as an employee’s refusal to perform his job function when he is transferred to another workplace with the same employer or another structural unit located in the same area, if the relocation does not entail a change in the terms of the employment contract? This condition the employer included it in the rules specifically so that employees would immediately understand separately that similar actions are disciplinary offenses, because not every employee realizes that in fact these actions are tantamount to failure to perform work in accordance with the employment contract.

What to do if an employee refuses to fulfill his duties

Advice on the topic Sometimes when dismissing you need to take into account the opinion of the trade union organization. If the company intends to apply disciplinary action against a trade union member, then it is first necessary to follow the procedure for taking into account the opinion of the elected body of the primary trade union organization (Article 373 of the Labor Code of the Russian Federation). The entire procedure takes no more than 10 working days. In this case, the company has the right to impose a disciplinary sanction no later than 1 month from the date of receipt of a reasoned opinion (Part 5 of Article 373 of the Labor Code of the Russian Federation). Better not to use minor violations as grounds for disciplinary action If the violations do not cause damage to the company or create other adverse consequences, and the punishment is disproportionate to the offense, the court has the right to recognize the order to impose a penalty as illegal (ruling of the St. Petersburg City Court dated January 13, 2010 No. 17245).
Pregnant women (Article 261 of the Labor Code of the Russian Federation) and employees on vacation or sick leave (Part 6 of Article 81 of the Labor Code of the Russian Federation) cannot be dismissed on this basis. And the dismissal of workers under the age of 18 is allowed only with the consent of the state labor inspectorate and the commission for minors and the protection of their rights (Article 269 of the Labor Code of the Russian Federation). If any of these errors are present, the court may declare the dismissal illegal. However, even in this case there is a chance to defend the company’s position. This is possible with careful attention to some procedural nuances. For example, for disputes not related to dismissal (including challenging disciplinary sanctions in the form of reprimands and reprimands), a three-month period for going to court is established from the moment the employee became aware of a violation of his rights (Article 392 of the Labor Code of the Russian Federation).

Situations vary. New top, for whom headhunters fought so hard, fails to cope with its responsibilities or does not suit the management. An old-timer of the company, who has been on the staff for several years, has become a drone and openly neglects his responsibilities. or leaves for meetings with a client and returns with a new manicure. And the programmer suddenly “fell ill” and returned from sick leave tanned.

We are talking about cases where employees know that it would be better to leave, but they take advantage of the fact that the Labor Code has made the official dismissal process quite difficult for the employer. But HR specialists and employers come to the aid of loopholes that are still in the code.

Expensive mistake

Let’s say right away that you should ask or force an employee to sign a statement on at will– although an effective, but absolutely illegal option. Using it is more expensive for yourself. Because even after signing such a statement, the employee can go to labor inspection and sue the company:

  • compensation for moral damage,
  • compensation for forced downtime (based on the average employee salary),
  • achieve reinstatement in the workplace.
And history knows many examples when an employee won in court.
The company will also have to pay an administrative fine for violating labor laws - up to 50,000 rubles.

Fire an unwanted employee? Legally!

There is no need to invent or be clever! The Labor Code already spells out legal methods of dismissal at the initiative of the employer. They should be used if an employee works dishonestly.

  • By mutual consent

Article 78 of the Labor Code of the Russian Federation consists of only one sentence: “An employment contract may be terminated at any time by agreement of the parties to the employment contract,” and gives enormous scope to the employer.

This article is for the employer in the best possible way to leave and is suitable if there are no official grounds for dismissal, but there is a reason. This is what is discussed with the employee one-on-one.

However, the employee usually expects compensation for forced dismissal or at least long paid leave. Therefore, the employer needs to prepare for additional material expenses. But by documenting the dismissal by agreement of the parties, the employer minimizes the risk that the employee will go to court.

  • He refused himself

Article 74 of the Labor Code of the Russian Federation provides that the employer can change the work schedule and working conditions (for example, introduce piecework wages or transfer production to a 24-hour schedule). Also, the employer can change the location of the company (move from the center to the outskirts) or change the owner, or carry out a reorganization.

The employer’s task is to notify employees about the reasons and changes in a timely manner, namely in writing and no later than two months in advance. And employees can either agree to the changes or quit.

  • You are not on the list

You cannot reduce staff by a specific unit without explanations and alternatives. The employer must offer the employee a list of other vacancies and not just any (from manager to couriers or cleaners), but corresponding to his competencies. The employee refused - they documented this and carried out the layoff.

  • Unsuitable for professional use

Inconsistency with the position (Article 81, paragraph 3) is another loophole for the employer.

When hired, each employee must sign job description. But the employer has the right to change it over time by warning the employee 2 months in advance. For example, introduce individual work criteria: processing a certain number of documents, fulfilling a sales plan, etc. In an additional agreement to the employment contract, state on the basis of what conditions the employee’s performance is considered unfulfilled, and then fire.

  • Didn't pass the certification

Another way to prove an employee’s incompetence is to conduct. But for the employer this is an extreme measure due to labor costs and high cost.

Certification is carried out not only for the unwanted employee, but also for others in a similar position. It is necessary to assemble a commission of people who have a professional understanding of the work of the employees subject to certification. Poor results - the employer has the right to fire an employee, but only if he refuses another vacancy in the company that matches his qualifications.

  • Absenteeism and tardiness

One absenteeism by an employee (from 4 hours in a row or during the entire working day) is enough to dismiss him, as this refers to a gross violation of labor duties by the employee (Article 81, paragraph 6).

It is more difficult to fire an employee who is constantly late, but it is also possible. You cannot be fired for a single lateness; you will need to collect several explanatory notes about the lateness and impose a disciplinary sanction. At the same time, the work schedule must be specified in the internal labor regulations and in the employment contract.

  • Intoxication

One thing is also sufficient for dismissal - alcohol, drugs, another toxic (Article 81, paragraph 6). But the employer will have to call an ambulance to the office before the end of the working day in order to record the employee’s intoxication and have the results of a medical examination in hand.

In addition to the law, there are also rules that the company determines itself. For example, what can you wear to work (); Is it possible to smoke and if so, where? Similar rules must be clearly described in one document called “Internal Labor Regulations”. All employees sign up for it when they are hired. If the employee is notified, but violates the rules, then he can be fired.

  • Failure to fulfill duties

Clause 5 of Article 81 of the Labor Code of the Russian Federation allows for the dismissal of an employee if he repeatedly fails to fulfill his duties.

Here it is worth mentioning a method that is unethical, but is used by some employers. To fire an unwanted employee, the employer can overwhelm him with tasks that cannot be completed within the specified time, and then ask him to write an explanatory note about the reasons for non-fulfillment.

  • Disclosure of secrets

If an employee becomes aware of a secret protected by law (state, commercial, official and other), including the disclosure of personal data of another employee, he can be fired (Article 81, paragraph 6). At the same time, even the phone number of another employee may fall under personal data.

But don’t forget that firing an employee is still not easy. And each of the above loopholes has its own nuances. And dismissal “under article” is an extreme measure, and it should be used when peaceful methods have not helped.

Expert commentary

HR Director of Beta Press Group of Companies

As practice shows, dismissing an employee is far from simple and not as transparent as it seems at first glance. The Labor Code of the Russian Federation does not provide many options, and all of them are aimed at protecting the employee. I will comment on the options described by the author based on practice.

  • By mutual consent– this mutual agreement is difficult to achieve, because if an employee has a conflict and does not want to leave, he will ask for considerable compensation, or simply will not want to lose his job. The method is available if you have the budget for it.
  • He refused himself– for the sake of firing one careless employee, this is too labor-intensive an option. As practice shows, in reality, changes made (moving, changing work schedules, etc.) lead to the opposite problem, namely, employees who worked stably and were completely satisfied with the employer scatter.
  • You are not on the list– a rather complicated option, since if we are talking about a negligent employee, then we clearly want to replace him, which in this option impossible. The second point is that, as a rule, the employer is not ready to shell out for compensation, especially for those whom they want to get rid of.
  • Unsuitable for professional use– complex system, requiring constant recording of indicators with which the employee regularly gets acquainted. In the event of a sudden change in requirements, as well as dismissal in short term(as in the example, 2 months) can become a “red rag” for the court.
  • Didn't pass the certification– legal and effective way, which allows you to get a lot of additional advantages (diagnosis of the level of knowledge of employees, recommendations for training, recommendations for promotion, changes in salary levels, etc.). If carried out by the HR Department, the costs are minimal. There are risks of legal appeals, but if the deadlines are met and if there are complete package documents the risks are minimal.
  • Absenteeism and tardiness- It’s quite difficult to fire, but it’s possible. You need to remember about pitfalls in the form of sudden sick leave, etc.
  • Intoxication– I’ll add that there are certified breathalyzers that allow you to detect alcohol intoxication, so for some companies it’s cheaper to purchase them. Another option is to offer to resign yourself or go for an examination (as a rule, in such cases, the employee leaves on his own).
  • Failure to comply with internal labor regulations- it’s not so simple here, and this kind of dismissal will require a lot of acts, explanatory notes, etc. It will be quite difficult to prove in court that an employee came to work wearing a blouse that is too transparent.
  • Failure to fulfill duties– a difficult item to fulfill, since tasks must be given in a fixed form and contain certain performance criteria. The employee must have the resources necessary to complete the task, etc. Situations can be extremely controversial.
  • Disclosure of secrets- a difficult reason to prove for dismissal, but business is business, and occasionally such situations do occur. The main thing is that the reason for dismissal should not be the employee’s phone number, since such little things clearly qualify as forced dismissal.

Despite the apparent variety of dismissal methods, most employers strive to agree on voluntary dismissal, since for the employee this is a “clean” story instead of an article, and the employer does not need to collect a package of documents in order to confirm the article in the event of a trial. Proving that an employer forced you to resign is just as difficult as the opposite. But, of course, you should not resort to this method when there is an open violation of an employee’s rights (

The employee refuses leave. Opinion of a lawyer and Rostrud 08/14/2018

According to the schedule, the employee must go on annual paid leave from August 15. Moreover, the vacation is “combined”: the rest of the vacation for the previous working year and the vacation for the current working year. The employee said that he only uses the rest of the vacation for the last working year and 7 days for the current one (28 days in total), and he doesn’t need more. There’s no need at all, he doesn’t want to rest, he has nothing to do at home, he’s bored. The order has been issued for all vacation days, but the employee has not yet signed it and offers to redo it. What can you do in this situation?

As a general rule, an employee must take 28 days off for each working year. Moreover, the vacation is established by the vacation schedule and there are no grounds for postponing it (as follows from the question).

According to Art. 122 of the Labor Code of the Russian Federation, paid leave must be provided to the employee annually.

According to Art. 123 of the Labor Code of the Russian Federation, the order of provision of paid leave is determined annually in accordance with vacation schedule, which is mandatory for both the employer and the employee.

If the vacation for the last working year was more than 28 days, then you can consider replacing part of last year’s vacation with cash compensation. In this case, the rules of Art. 126 Labor Code of the Russian Federation:

“The part of annual paid leave exceeding 28 calendar days, upon written application of the employee, may be replaced by monetary compensation.

When summing up annual paid leave or transferring annual paid leave to the next working year, monetary compensation can be replaced by a part of each annual paid leave exceeding 28 calendar days, or any number of days from this part.

It is not allowed to replace with monetary compensation annual basic paid leave and annual additional paid leave for pregnant women and employees under the age of eighteen, as well as annual additional paid leave for employees engaged in work with hazardous and (or) hazardous conditions labor, for work in appropriate conditions (except for payment monetary compensation for unused leave upon dismissal, as well as cases established by this Code).”

If the employee does not yet need leave for the current working year in its entirety, then the parties can use the provisions of Art. 125 and 124 of the Labor Code of the Russian Federation - divide this vacation into parts and postpone one part to another time. Of course, strictly in accordance with the requirements of the law.

If the employer follows the employee’s lead and does not provide him with leave, then in the event of an inspection by the State Labor Inspectorate, a fine is possible.

If the employee refuses to sign the leave order, draw up a report about this. The act is certified by the signatures of the persons present at the refusal.

Position of Rostrud

“...The employer is obliged to provide leave to the employee according to the vacation schedule, regardless of the employee’s refusal to take leave...”

(Information portal of Rostrud, October 2017, Onlineinspektsiya.rf).

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Even the smallest fine from the State Labor Inspectorate is much more expensive than a good reference book.

"The State Labor Inspectorate is on the doorstep:
we put things in order in personnel records management"
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The book will help you quickly check compliance with the law on different areas personnel work and restore order. By area (hiring, transfers, vacations, etc.) it tells “how it should be”, what errors occur, what to check, how to correct.

Various management decisions are confirmed by orders. Employees must be familiarized with the document upon signature. However, sometimes the employee refuses to sign. What should the employer do in this case? Let's look at it in this article.

In what cases are orders drawn up?

Let's consider the main reasons for drawing up an order:

  • Dates and procedure for granting leave.
  • Termination of an employment contract with an employee.
  • Involving an employee in overtime work.
  • Transfer to another position or to another workplace.
  • Transfer of an employee to another company.
  • Imposing disciplinary action.
  • Making adjustments to internal regulations.

Orders can also be issued in the event of other instructions from management.

Why does the employee refuse to sign the order?

Refusal to sign is a sign of a conflict of interest between the employee and the employer. For example, an employee does not agree with the manager’s decision, and therefore tries to create obstacles. A similar situation is common when an employee is fired. The manager is trying to fire the specialist, but the latter does not want to leave his job. Therefore, he does not agree with the dismissal order in the form of a signature.

Does an employee have the right not to sign?

The duties and rights of an employee are specified in Article 21 of the Labor Code of the Russian Federation. The list of responsibilities does not include such an action as putting a signature on orders. Refusal to sign, according to Article 379 of the Labor Code of the Russian Federation, can be recognized as self-defense by an employee of his labor rights. Such provisions of regulations are fully justified, since in practice it is impossible to force a person to sign.

At the same time, the law obliges the employer to familiarize its employees with the order upon signature. Some contradiction is created. However, legislators provided for the situation of a specialist’s refusal. An employee’s refusal, according to Article 84.1 of the Labor Code of the Russian Federation, cannot become an obstacle to the execution of a dismissal order. IN similar situation In the document you need to make this entry: “Refused to sign.”

Article 193 of the Labor Code of the Russian Federation states that the employer must also draw up a certificate of refusal. The preparation of this document must be carried out in accordance with the rules. If this paper is not drawn up, the manager’s order will not be valid. An employee can challenge the validity of this document.

Let's look at an example. The manager wants to fire an employee. He draws up an appropriate order. The employee refuses to sign. The employer still terminates the employment contract. The employee is challenging his dismissal in court. He argues his claim with the fact that he was not familiarized with the order. The employer cannot challenge the plaintiff’s argument in any way, since there is no signature confirming familiarization and no document.

Drawing up an act of refusal

IN regulations The unified form of this document is not provided. That is, this form is developed by the organization independently. The type of document may vary depending on the specifics of the company. When drawing up an act, you must rely on the standards contained in GOST R 6.30-2003. You should also pay attention to archival rules.

The act is an information and reference document. It confirms some action or event. The document must indicate various details. This prerequisite. An act can only be drawn up by a commission, that is, several persons. One manager cannot draw up this paper. The document includes three parts:

  1. Introductory part. Includes the date of preparation, number, link to the document (an order in which the employee does not want to sign). The composition of the commission must be indicated. Each member of the commission is registered in alphabetical order, indicating their full name and position.
  2. The main part. It sets out the established facts of the case, findings and conclusions. For example, this part may contain the following entry: “The commission found that employee Ivan Ivanov, holding the position of sales manager, refused to sign the dismissal order.”
  3. The final part. All commission members put their signatures on the document. Information about the number of copies of the document is indicated.

IMPORTANT! It is very important for the employer to draw up the act in full compliance with the law. Fundamentally, this is because an employee’s refusal to sign already indicates a conflict of interest. If the act is drawn up incorrectly, there is a high risk that the employee will go to court to challenge this document.

Rules for filling out the refusal act

Let's consider the basic requirements for the act of refusal to sign:

  1. The document is drawn up by a HR employee.
  2. In paper in mandatory This information is recorded: information identifying persons (position, etc.), full name of the employee who refused, full name of the commission members.
  3. The document is signed by the manager and two witnesses.

The paper must contain a heading, the name of the act, and the event that is being confirmed.

Employer's procedure

Let's consider all the actions an employer must take if an employee refuses to sign:

  1. In the presence of two or three employees, the employee is invited to familiarize himself with the act. It is advisable that these employees are not direct subordinates of the manager.
  2. The employee verbally refuses to sign.
  3. The employer reads out the order so that the employee is familiar with the document.
  4. An act of refusal to sign is drawn up. It is recommended to prepare it in advance.
  5. Witnesses sign this act. The employee is also asked to sign the document.
  6. If the employee refuses this signature, the document must be marked with the following: “The employee refused to review the document.” This note is also confirmed by the signatures of witnesses.

IMPORTANT!
The note indicating the employee’s refusal to sign must be handwritten.
Also marked by hand registration number and the date of execution of the act.

Where to store the act

Consequences of signing

Refusal to sign is followed by these consequences:

  • Refusal will not be an obstacle to the implementation of the manager’s order if the latter draws up the act correctly.
  • Refusal may be considered as disagreement with management's order. That is, this is a violation of labor discipline. This is relevant for those cases when an employee is asked to sign orders on a business trip, on the passage medical examination. In this case, disciplinary punishment follows.

The consequences of the situation in question depend almost entirely on the actions of the employer. Therefore, he must be guided by the law. This will help prevent legal proceedings in the future.