It's not so easy to dismiss an employee. In the Labor Code for this there is article 81 "Termination of the employment contract on the initiative of the employer". But for some cases you will need a commission, for others - reliable evidence of violations. It is time-consuming and laborious.
Return labor with the wording "dismissed on their own" - it's easier. On the TC some of the dismissed superiors have to offer a new place. This does not work if the laborer says that the person left on his own initiative.
The reasons for dismissal on the initiative of the employer may be:
Labordiscrepancy
The law says that you can dismiss for inconsistency of the position (RF Customs Code, Article 81, paragraph 3). To do this, the boss needs to develop a plan: how and where to test the employee, by what criteria to evaluate his response. The next step is to collect the attestation commission. In it there should be a deputy director of the company, an employee of the personnel department, a representative of the trade union and a direct supervisor of the attested person. The commission offers a task adequate to the position of the employee.
After the certification, the commission votes - whether you are a post or not. For example, if the designer does not have a specialized education, but has knowledge and skills in this area - the commission will offer to send for courses or be transferred to a position more suitable for the level of qualification.
If you have not passed the certification, then you still can not immediately dismiss. First, the manager must offer a position that corresponds to your professional level, from those that are now free in the company. When you refuse all options in writing - everything, you can dismiss. Another law allows you to challenge the result of attestation in court. If the appraisal procedure is violated, the court will recognize the dismissal to be illegal and the post will be returned.
It is illegal to certify pregnant women and those who have worked in office for less than two years. After a maternity leave or childcare leave before attestation, two years must pass. Important: this is stated in the Order of the Ministry of Education and Science of the Russian Federation of 30.05.2015 N 293, and in the TC such conditions are not present.
What to do: update professional skills. A valuable employee who is well versed in the case is better protected from dismissal than an employee with outdated knowledge and working methods.
Judicial practice: Igor Petrovich (name changed - Ed.), Worked in the library and was in good standing with colleagues and management. Before the title of "Veteran of Labor" he did not have a year and a half experience. Therefore, the pensioner continued to work, despite his advanced age.
After the next certification, Igor Petrovich was offered to move to another position, with a decrease. The commission considered that the employee's experience and skills do not correspond to the position held. The pensioner was outraged and refused. Igor Petrovich was fired. Then he went to court and demanded reinstatement and compensation.
The members of the commission also spoke in court. They told that Igor Petrovich, unfortunately, does not know how to work with a computer. And most of the responsibilities for his position are now associated with this skill. Colleagues of Igor Petrovich said that he is a very responsible and active employee, that he has many letters and thanks.
The court did not support the pensioner. Formally, the certification passed without violations, and the employee was unable to withstand the requirements of the commission. From another post refused. The dismissal was recognized as legal.
Delays, absenteeism
To dismiss for itself a delay will not work. But the boss can impose a disciplinary penalty. For example, a remark or a reprimand. And for a new penalty - to order the dismissal (TC RF, Article 81, paragraph 5). By law, this is called "repeated non-performance of an employee without good reason for their work duties."
If the employee goes to court, they will look at the dates of the penalties. Impeccable labor reputation in the beginning, and then a few reprimands for a short period of time will raise questions about the legality of dismissal. The court will take the side of the employee, deciding that the head did not give a chance to improve.
A walk is when the employee is out of work for more than 4 hours in a row or he missed a whole shift, and there is no information on the illness or other explanation. For absenteeism, they may be dismissed for the same article as for the delay.
General rules: before you reprimand, the boss must find out the reason for being late or absenteeism. You have two days to explain everything in writing. If there are no valid reasons, a disciplinary sanction is issued. This is an order or an order that an employee must sign within three days.
What to do: follow the discipline, always formalize sick leave or leave at your own expense.
Important: if an employee is fired for being late, it is necessary to check whether there were other cases of late being in the company at the same time. If so, then dismissing someone as one is labor discrimination and an excuse to go to court.
Judicial practice: Kostya got a job as a storekeeper. Worked a year and was asked to leave. He brought the statement, but the chief ignored him. A month later Kostya again wrote a vacation application. The result was the same.
One day Kostya woke up in the morning and decided that this was no longer possible. He drank coffee and went to the park, with his favorite book. Kostya did not go to work that day. The head immediately made up an act that the employee was absent from the workplace. Kostya refused to write an explanatory and sign an act. A week later, the dismissal order was ready. And then there was the court.
The court found the dismissal illegal, since the employee has the right to leave for the first year of work as early as 6 months after taking office. With written consent, you can postpone your vacation for the following year. But Kostya did not sign such documents and refused to postpone his vacation.
It turns out, the boss violated the right of Kostya to leave. And he boycotted such a decision with his absence. The court took the side of Kostya, reinstated him in office and ordered compensation.
Disclosure of secrecy
The law protects commercial and service secrets. When you sign the securities on non-disclosure, you assume responsibility for the safety of this information.
Important: your salary, the number of employees in the company, information about vacancies - this is not a commercial secret. This is stated in No. 98-FZ "On commercial secret". And the law on personal data allows you to tell without limits how much you get. Because you independently manage your personal data. At the same time, another's salary is the personal data of another person. If by your post you have access to such information, you signed a non-disclosure document and blabbed, then you can be fired for disclosing other people's data.
If desired, the boss can prohibit telling about the size of the salary outside the organization. Then he must draw up an internal document, where the data on the salary will have the status of official secret. To forbid to discuss the salary with the chief or colleagues - it is impossible. It is against the law, and such an order can be challenged in court.
To fire for the disclosure of official secrets, you need proof. For example, an employment contract signed by an employee, where everything that the company considers to be classified information is listed.
What to do: study the employment contract and find out what information can not be discussed with colleagues and friends.
Who can not be fired
Pregnant women are not dismissed for any of these reasons. But the chief can issue a reprimand, fix a violation. Those who are on vacation - at their own expense or maternity - can be dismissed only when they return to work. In hindsight it can not be done.
There are also medical indications for dismissal. If the employee can not go to work for 4 months - the post is retained for him. When the term of medical restrictions on work is more than 4 months - the head has the right to issue an order for dismissal (RF TC, Article 73). Or to offer a position corresponding to the employee's health capabilities. You can not fire someone who is on sick leave.
Judicial practice: Sofya Ivanovna (name changed, - Ed.) Worked in the Council of People's Deputies. Once the structure of the apparatus was revised. Her position was shortened and another one was introduced - the manager of organizational and personnel matters. The chief summoned Sophia Ivanovna to a conversation and invited her to retire "at her own request." And did not offer to take a new position, corresponding to experience and knowledge. She refused.
Due to the nature of the warehouse, Sofya Ivanovna was very worried about problems at work and even went to the hospital. Being on sick leave, she received the first official notice from the employer about the reduction of her position.
Next - a long story. But when Sophia Ivanovna was still fired, she went to court. And she won it. Because the chief violated the procedure - he dismissed a temporarily disabled employee.