The legislation provides certain rules for concluding an employment agreement. The grounds for its termination are established by Art. 77, 84 of the Labor Code of the Russian Federation and a number of other norms of the code. When applying for a job, the applicant must comply, first of all, with the general requirements. Depending on the specifics of the activity, special conditions may be established.
According to Art. 84 of the Labor Code of the Russian Federation, the dismissal of an employee, i.e., the termination of a contract between an employer and an employee, is carried out if the contract was concluded in violation of the rules enshrined in the code or federal regulations, if this violation prevents the continuation of professional activities. Let us consider in more detail the cases in which the indicated norm is applied.
Types of Violations
In part 1 of Art. 84 of the Labor Code of the Russian Federation a list of cases of unlawful conclusion of a contract is fixed:
- Violation of the provisions of a court sentence depriving a citizen of the right to fill positions or carry out activities established by the court.
- If the applicant has contraindications to the work. The appropriate state of health must be confirmed by a competent medical commission issued in accordance with the rules established by law.
- The absence of a document on qualifications / education, if the production of work requires special knowledge.
- Violation of the decision on disqualification or other administrative sanction, which excludes the possibility for an employee to perform professional duties in accordance with a contract issued by a court, body, employees, authorized to consider administrative cases or violation of restrictions, requirements, prohibitions provided for by federal law and concerning the employment of persons dismissed with municipal / public service.
- Failure to comply with the requirements of regulatory acts that establish restrictions on the conduct of certain types of activities.
The list specified in part 1 of article 84 of the Labor Code of the Russian Federation , is not considered closed. According to paragraph 6, other cases of termination of the contract may be established in federal laws.
Mandatory Requirements
In the cases specified in the first part of Art. 84 of the Labor Code of the Russian Federation , the termination of the contract is allowed if it is impossible to transfer the citizen by his written consent to other work available to the employer, which he, in accordance with his health condition, can perform. This can be either a vacant position or work of the same qualifications, a lower position or a lower-paid professional activity.
The tenant should offer the employee all the vacancies available to him in the area that meet the specified requirements. The employer must offer a transfer to another location if the relevant provisions are present in the contract, collective or other agreement.
Additionally
As established in 3 parts of Art. 84 of the Labor Code of the Russian Federation , if violations of the rules for concluding a contract established by the code or other federal norms were committed through no fault of the employee, the employer must pay him severance pay. Its value should be equal to the average monthly earnings. General rules for the dismissal of employees are enshrined in article 84.1 of the Labor Code.
If the employee is guilty of violations, the obligation to offer him another (vacant) position / job, as well as to pay the allowance, is removed from the employer.
Comments on Art. 84 Labor Code of the Russian Federation
Among the violations of the established rules for executing an employment agreement, first of all, is the non-execution of a court verdict providing for certain bans for a citizen. For a more complete analysis of paragraph 1 of Art. 84 of the Labor Code of the Russian Federation, we turn to criminal law.
The prohibition on filling posts and carrying out activities of a certain type may extend to a variety of areas. For example, a person may be prohibited from staying at the posts of state / municipal service, in the bodies of territorial self-government, or to conduct medical, teaching or other activities. If such a sanction is the main punishment, then it can be imputed for 1-5 years, if additional - for a period of 6 months. up to 3 years.
Given the above, the provisions of t. 84 of the Labor Code of the Russian Federation apply only to the period for which a ban is imposed on a citizen. Therefore, if a violation of the procedure for drawing up an agreement is revealed at the time when the deadline has expired, labor relations with a citizen cannot be terminated, since this circumstance does not prevent the continuation of professional activities.
Lack of proper documents
Termination of the contract under Art. 84 of the Labor Code of the Russian Federation is possible if the employee does not have documents confirming his qualifications or education. Moreover, the norm specifically stipulates that this basis is applied if the specifics of a professional activity presupposes that the employee must have certain knowledge. Corresponding requirements are fixed by industry federal and other regulatory acts.
For example, according to article 54 of the Fundamentals of the legislation governing the protection of health, citizens who have received secondary or higher education in Russia and have a diploma confirming this have the right to conduct pharmaceutical or medical activities. In addition, for the conduct of certain types of activities, an additional license or certificate is required.
According to article 331 of the Labor Code, persons with the appropriate educational qualifications may be allowed to teach. It is determined by the rules enshrined in the model regulations on educational institutions approved by the Government.
Higher vocational education should be available to all applicants entering the civil service for positions of the categories "specialists", "advisers", "managers" of any of the provided groups of posts, as well as "providing specialists" of the leading and main groups.
Administrative sanction
When considering the termination of the agreement in connection with a disqualification, it is necessary to take into account that the relevant information can be obtained from the register created by the Ministry of Internal Affairs of the Russian Federation and the offices of the regional administrations.
By order of the Ministry of Internal Affairs No. 957 of 2006, the Manual on the creation and maintenance of this database was approved, as well as the instruction fixing the rules for the provision of information.
Important point
Art. 84 allows the possibility of termination of the agreement for other reasons given in regulatory enactments. The main condition for the application of the provisions of the norm is that violations of order should exclude the continued professional activities of a person. The legislation obliges the employer to terminate the employment relationship upon identification. Otherwise, the employer will be held liable under the law.
Translation Features
When deciding on the termination of labor relations, the employer must fulfill a number of obligations stipulated by the Labor Code. In particular, he should offer the employee other options for continuing professional activities at the enterprise in the area.
If the agreements (collective including) or in the contract itself provide for the possibility of transferring to another region (district, city, etc.), then the employer must comply with the relevant requirement. At the same time, the Labor Code specifically stipulates that the transfer may be made only with the consent of the employee. If the employee does not want to continue working in another position, he must issue a written refusal.
However, the employer may be relieved of this obligation if the employee is found guilty of violating the procedure for registration of the agreement. For example, a citizen presented a false education certificate, kept silent about the presence of a disqualification or a court verdict, gave false information about his health, etc. In such situations, the employee will not only not be offered vacant posts, but also severance pay will not be awarded.