The Labor Code of the Russian Federation in most controversial situations stands on the side of hired personnel as the least protected in labor relations. That is why it is impossible to release a hired employee without his desire and will, unless there are grounds provided for by law that constitute a closed list. This means that terminating the employment relationship with an employee at the request of the employer is allowed only for a number of clearly established reasons.
Moreover, such dismissal must be carried out strictly according to the established procedure, otherwise legal proceedings may be taken by the unfairly dismissed employee, with an almost guaranteed outcome not in favor of the employer.
We will tell you what grounds an employer may have for terminating a contractual relationship with an employee and how to correctly follow the entire procedure in accordance with the labor legislation of the Russian Federation.
Grounds, reasons and conditions for termination of an employment contract at the initiative of the employer
Termination of an employment contract at the initiative of the employer can be carried out at enterprises of various types and areas of activity. The full list of grounds is recorded in Article 81 of the Labor Code of the Russian Federation and includes the following reasons:
- termination of an employment contract at the initiative of the employer becomes possible if a legal entity or individual business is liquidated.
- The employment contract becomes invalid if the basis is the need to reduce staff.
- Termination of a fixed-term employment contract at the initiative of the employer is also allowed if, based on the results of the certification, the employee has not confirmed his professional competence and cannot perform work according to his position.
- It is also possible to terminate an employment contract in a situation where there has been a change in the owner of property owned by the organization.
- The procedure for terminating the contract will also be legitimate in a situation where the employee does not fulfill the official duties assigned to him by the employment agreement.
- An employee may be dismissed if the head of the organization records a gross violation of labor discipline or job description (attending to work under the influence of alcohol or drugs, theft of property, disclosure of personal data or trade secrets, etc.).
- The employment contract will be terminated by management even if the employee has lost his trust due to committing guilty actions when working with material assets, including the organization’s monetary assets, as well as taking into account other grounds that are recorded within the framework of Article 81 of the Labor Code of the Russian Federation.
It should be noted that dismissal of an employee at the initiative of the employer is a rather complex procedure that requires compliance with many nuances. Only full compliance with the legislative order will allow us to talk about the legitimacy of termination of the employment contract, and not about abuse of authority on the part of management and violation of legislation in the field of labor relations in the territory of the Russian Federation.
Withdrawal of application
An employee may change his mind about quitting.
In this case, he must withdraw the application from the manager. In this case, the manager does not have the right to refuse the employee, but only in the situation if another specialist has not been invited during this time. It is important to know that a person must receive only a written invitation, and in addition, he must belong to the category of persons who cannot be refused to enter into an agreement under the law. This includes specialists invited to work on translation, or students who received a guarantee certificate from the head of the organization after the employee submitted an application. For example, Ivanov I.I. decided to resign of his own free will and wrote a corresponding statement. After 10 calendar days, he decided to pick it up. But the manager had already sent an invitation to Kosoy K.R. with an offer to transfer to them. She agreed and is preparing for the transfer. In this case, Ivanov I.I. can no longer withdraw the application and will be dismissed within the period specified in it. But, if within a month from the date of registration of Kosoy K.R.’s dismissal from her previous place of work, she does not register with the organization for reasons beyond the control of management, Ivanov I.I. may return. The second option is if at the time of dismissal the workplace is vacant, and after the expiration of the period specified in the paper, the specialist does not demand dismissal and returns to his workplace. In such a situation, the employment contract is automatically extended. A previously drawn up resignation letter is considered cancelled.
Cases of termination of an employment contract at the initiative of the employer
All of the above cases, when it is possible to dismiss an employee on the initiative of the employer, are associated with numerous difficulties, since the legality of this procedure must be supported not only by the dismissal order and the corresponding entry of information into the employee’s personal work book, but also by additional documents.
For example, if the procedure for liquidating an enterprise is put into practice, the company’s management must draw up a report, which is sent to the Employment Service. This condition is specified in the Federal Law No. 1032-1. In addition, employees 2 months before the liquidation of the company must receive written notice of dismissal, which is prescribed in Art. 180 Labor Code of the Russian Federation.
If we consider cases where employees are fired due to professional incompetence, then in this situation the manager’s decision to dismiss must be supported by a report on the certification carried out within the organization, as a result of which this fact was revealed.
Moreover, before directly dismissing an employee, the employer must offer the worker another position that will correspond to his professional skills. And only if there is a refusal on the part of the employee, an order to terminate the TD is issued.
If the basis is the employee’s failure to fulfill his official duties, then the termination of the employment contract must be justified by the presence of official acts or memos, which are accompanied by an explanatory note written by the offending employee. In addition, orders must be additionally provided that contain a reprimand or reprimand to the employee.
Formalities
The last day of an employee deserves special attention.
By this date, the directorate must prepare all papers. The manager is obliged: 1. Issue the appropriate order and familiarize the employee with it against his signature. However, it can be published a few days before dismissal.
2. Hand over the completed work form against the recipient’s signature. The entry in it must contain a link to Article 77, paragraph 3 of the Labor Code of the Russian Federation. An entry citing Article 80 is considered incorrect.
A sample of the correct entry can be viewed below:
Remember, the work report is filled out exclusively on the last working day. Management has no right to arrange it in advance.
3. Pay the employee in full. This includes payments related to wages and compensation if he has vacation time.
4. If there is a written application, other papers may also be issued, such as:
- copies of orders concerning the employee;
- salary certificate;
- characteristic.
To avoid disputes with a former employee, for example, if he did not pick up his work permit on time due to his own fault, the manager is obliged to send a written notification that the employee must come and pick up his documents.
It is best to do this using a registered letter. If the documents are not received within the period specified by law (the last working day), the manager is given 3 working days to return the work permit. The period is counted from the moment of application. In such a situation, the employee no longer has the right to demand immediate issuance of the document.
The procedure for terminating an employment contract at the initiative of the employer
If the above conditions and grounds for termination of the employment contract occur, then the procedure for terminating the agreement between the employee and the employer can be initiated. The procedure for terminating an employment contract at the initiative of the employer involves going through several main stages:
- if, for example, the liquidation of a company is a condition for termination of a trade agreement, then a mass dismissal of the team is assumed. Therefore, 3 months before the completion of this legal fact, the management of the enterprise must notify the representatives of employees, in particular, the Primary Trade Union Organization. This is stated in Art. 180 Labor Code of the Russian Federation.
- Next, information about the liquidation of the company is sent to the Employment Service, supported by additional documentation that makes the dismissal procedure legitimate.
- At the third stage, the company's management must notify the workforce represented by each employee about the upcoming liquidation of the company. Moreover, such notification must be made 2 months before the closure of the enterprise (see Article 180 of the Labor Code of the Russian Federation).
- After this, an order is issued to liquidate the legal entity or individual business 2 months before the dissolution of the company.
- On the day when the official dismissal of an employee is expected, an order is issued to terminate the employment contract for each employee, the fact of reading of which is certified by the employee’s signature.
- Based on Articles 140 and 178 of the Labor Code of the Russian Federation, an employee is paid a monetary benefit on the day of dismissal: wages, bonuses, money for sick leave, unpaid vacation, etc.
- After this, an entry is made in the employee’s personal work book and the document is issued in person.
The procedure for terminating an employment agreement on the initiative put forward by the employer, taking into account other grounds, differs minimally from the regulations presented above. The only difference is the documents that may be additionally required in the process of terminating the employment contract, as well as the deadline for the employee’s dismissal.
Is it necessary to inform the employee in advance, and in what cases?
to notify the employee in advance of dismissal in the following cases:
- Liquidation of the enterprise.
- The employee failed the test. In this case, the employee must be notified three days in advance.
- The staff is being reduced. A couple of months' notice is required.
- The term of the fixed-term contract has expired. Management is required to notify the employee three days in advance.
If the company closes its operations, then it is necessary to notify the employee a couple of months in advance in the usual case, and in case of seasonal work - a week in advance. If an urgent agreement was drawn up, then within three days.
Notification is not required if:
Period for termination of an employment contract at the initiative of the employer
The period during which the employment contract is terminated depends on the grounds that necessitate this procedure, in particular:
- if the basis is the liquidation of the company or the reduction of staff positions, then the employer must notify the employee 2 months before the official dismissal;
- if an employee does not confirm his professional competence based on the results of certification, then the company management must notify the person of the upcoming dismissal 1 calendar month in advance;
- if the basis is a change of owner, then the company management must announce the decision to terminate the employment relationship to the employee 3 months before the proposed changes;
- if an employee has repeatedly committed violations of labor discipline or job descriptions, then from the moment the person commits the next offense the employer has 1 month to make a decision on his dismissal;
- If the fact of theft or disclosure of confidential information is established, then the severance of the employment relationship is possible after the court makes a decision on the person’s liability.
Length of notice period
It is the employee’s responsibility to notify management in advance of his intention to resign (Article 80 of the Labor Code of the Russian Federation). To do this, you do not need to write warning letters and notices; it is enough to submit an application not on the eve of dismissal, but in advance, observing the established deadline.
In general, it should not be less than 2 weeks. This time is given for the resigning employee to transfer his affairs, and for the administration to find a replacement for him. For the employee, this is also a period of reflection, during which he can withdraw his application and remain at work.
The countdown will begin from the next day after the application was accepted.
Example
The employee wants to quit on March 25, 2019. Subject to 2 weeks of service, he must submit an application on 03/11/2019. The notice period will begin on 03/12/2019, then the 14th day (03/25/2019) will be his last working day and the date of termination of the contract.
However, there are certain groups of persons for whom the law establishes different deadlines.
Those who are forced to leave work by special circumstances can resign at any day without warning: entering a university, retirement, moving to a new place of work for their husband.
Citizens in respect of whom the administration violated their labor rights also have the right to resign without working off.
3 days before dismissal, submit an application:
- working on a probationary period;
- seasonal workers;
- persons employed under a short-term employment contract for a period of up to 2 months.
Finding a replacement for a manager is more difficult than for an ordinary employee, so he must notify the owner of the company or his representative about his desire to resign 1 month in advance (Article 280 of the Labor Code of the Russian Federation). This also applies to athletes and coaches who have entered into a contract for a period of 4 months or more, and employees of internal affairs bodies.
More information about the procedure for dismissing a general director can be found in the article “Dismissal of a general director at his own request.”
Early termination of an employment contract at the initiative of the employer
The Labor Code of the Russian Federation also provides for the possibility of early termination of an employment contract, which occurs at the initiative of the employer. This is regulated in Article 81 of the specified legal acts. Thus, the employer can terminate a TD that was concluded for a certain time period before its expiration. For this purpose, all the grounds listed in Art. 81.
In general, the procedure for early termination of a contract with employees does not differ from the classic regulations. However, the employer must take into account preferential categories of citizens who cannot be dismissed early. These include:
- pregnant women (unless the dismissal is caused by the liquidation of a legal entity or individual entrepreneur);
- women with children under 3 years of age;
- single mothers who are dependent on a young child under the age of 14 or a disabled child under the age of 18, etc.
Thus, to summarize, we conclude that termination of a trade agreement with employees at the initiative of employers is a rather complex legal procedure that requires good legal knowledge on the part of management.
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The concept of an employment contract and its termination
First of all, it is necessary to consider the key concepts that will appear in our article, since without this it will sometimes be difficult to understand what exactly we are talking about. First, let's define what an employment contract is. In accordance with current legal norms, this is a bilateral agreement between an employer and an employee to provide a certain position and perform certain duties. That is, it is a document that regulates relationships.
It is worth noting that not all organizations have recently drawn up such contracts. Some companies choose to discard such actions. This is due to the fact that the company is required to pay taxes for each employed employee. Therefore, unscrupulous employers simply want to save money. But here it is worth understanding that, first of all, this is illegal, because such an obligation is directly enshrined in regulatory legal acts. Secondly, such actions directly protect the rights of both parties, since they regulate their relationships in detail.
That is, before you start work, ask your boss to draw up an employment contract. This will help you protect your rights upon dismissal. As we have already found out, payment from work is called termination of the employment contract. This procedure is a certain set of actions, the result of which will be the termination of all rights and obligations provided for in the employment contract between these parties.
The most important thing in such a case is that the procedure for terminating the agreement must necessarily comply with the norms of the Law. Otherwise, such actions will be declared invalid or appealed in court.
It is worth noting that all actions that need to be taken to terminate the relationship between employer and employee can be specified in the contract. But quite often such documents contain a reference norm, which directly indicates that the reasons for such actions may be situations that are provided for by the legislative framework. In this case, you will certainly have to become familiar with the regulatory framework.
Consequences of early termination of a fixed-term employment contract
As a general rule, an employee has the right to terminate a temporary contract early without prejudice to himself. It is enough to warn the employer in advance, who does not have the right to refuse dismissal.
For professional athletes, Article 348.12 of the Labor Code of the Russian Federation provides a special clause. When concluding a fixed-term agreement, it must include a condition regarding the employee’s obligation to warn the employer about leaving of his own free will. The parties agree in advance in the contract on the deadline for submitting the application.
In addition, a condition is included on the procedure for the athlete to make a monetary payment in favor of the employer if he resigns early.
Some employers include a penalty clause for early termination in the temporary agreement. Such requirements do not comply with the requirements of the law. According to Article 57 of the Labor Code of the Russian Federation, an employment contract may provide for conditions that do not worsen the employee’s position in comparison with those established by labor legislation. In such a situation, the employee has the right to go to court to protect his rights.
