Not every employer knows how to fire a person correctly. Of course, sooner or later, someone has to be removed from office, and experience is gradually being gained, but this is a rather long way to go. It is much easier to study legal norms and act accordingly. We will talk about this.
What is regulated
Working relations have a legislative base and a set of laws, his name is the Labor Code. It is there that the reasons for the dismissal, the order of actions are written. The document says whether a person who is on sick leave can be fired, on maternity leave, on vacation, and in other situations.
In addition to the TC, internal regulatory acts are also valid, in which certain nuances of the calculation procedure can also be spelled out.
Let us examine the reasons for the "resignation" in more detail.
Why get fired?
To dismiss a person, you need to have good reason. The following are considered the reasons:
- The desire of the employee.
- Termination of an employment contract.
- Change of position of a subordinate or transfer of an employee to a new place.
- The desire of the leader.
- The employee's refusal to work further under the leadership of another boss.
- For health.
- The unwillingness of the employee to continue activities with changing conditions.
- The location of the organization has changed, and the subordinate refuses to work in this place in the future.
- Violations in the employment contract that prevent a person from carrying out their activities.
- Other circumstances that arose without the participation of the employer and employee.
To find out how to fire a person properly, just read article 77 of the Labor Code, which gives a complete list of grounds for dismissal. In addition to this article, federal law and other sections of the Labor Code of the Russian Federation can clarify the issue.
Of my own free will
Is it possible to fire a person if he himself wants it? Of course. Moreover, this is most often the most convenient option. By law, every person can quit simply because he wants to, and it doesn’t matter what his reasons are. Article 80 of the Labor Code clearly explains this point, and it is precisely on it that they are relied upon for dismissal of this kind.
Termination of employment at the request of the employee is also a way to settle the matter with the world. After all, if the employer dismisses the person himself, then he will be forced to pay compensation.
We have already talked about whether it is possible to fire a person at his request, but did not mention the duty of the boss. So, if you decide to leave work, then you should write a statement addressed to the head. Moreover, with this scenario, the employee must work another 14 days. Accordingly, the application must be submitted 2 weeks before leaving. The countdown begins the day after the application is registered.
Agreement of the parties
Another way to dismiss without conflict is an agreement. In this situation, the subordinate will have a record in the labor "dismissed of his own free will", which, you see, is much better than under the article. And the employer will avoid making complaints.
Usually, before dismissal, the parties agree on the size of the severance pay (according to article 78 of the Labor Code). And everything seems to be fine, but there are people who do not want to lose their place and are not ready to compromise. In this case, it is easier for the employer to find another way of dismissal that does not lead to conflict and court.
If no one is going to violate the rights of the dismissed person, then you need to try to resolve everything peacefully. You can just talk to the employee and find out the reasons for this behavior. When the conversation does not help, it remains to look for other calculation options.
Forced dismissal
People are different, and not everyone is ready to negotiate and solve problems. In such an environment, you need to speak frankly with a person and warn about the possible consequences of obstinacy. For example, mention of defamatory entries in the work book will help a person make the right decision. And this happens because the dismissal under the article practically crosses out the further career of the employee anywhere. That is, a sane person will choose for himself a conflict-free dismissal.
If the employee turned out to be a staunch soldier, you can put pressure on him with formalism. In this case, the rights of the dismissed person will not be affected, because the employer will adhere to the letter of the law, but too scrupulously.
For example, record the time of appearance at the service and going home, require written reports and issue orders on paper. The slightest delay or absenteeism will be considered a disciplinary offense, on the basis of which the employer can dismiss the employee. There will be a time bomb and shortcomings in the performance of direct duties, because now the boss observes everything and does not make discounts.
Most often, internal documents are not given much importance, but in vain. After all, if the collective agreement stipulates that the employer has the right to establish a minimum salary or transfer to another department of a person, then he will take advantage of this.
Not all subordinates take the leader’s intentions seriously and continue to violate labor discipline. Just one gross misconduct is enough - and the person is fired according to the article. This, as they say, is heavy artillery, and the employer resorts to it only in despair. Usually, he still hopes that he will be able to get rid of a person without causing much harm.
Wolf ticket
How can a person be fired yet? According to the law, if there is a reason for this. These are:
- Absenteeism. If the employee did not appear at work once, then the matter is likely to be limited to reprimand, but in the case of systematic absenteeism, the employer can fire the employee. We repeat that truancy is called absence from the workplace for more than four consecutive hours.
- Violation of labor protection rules. The resignation follows only if the guilt is proved by the commission, and the employee's actions entailed adverse circumstances.
- Being in the workplace in a state of drug or alcohol intoxication. To fix the fact, the employee will have to undergo a medical examination.
- Disclosure of classified information. How can one be fired in this case? It is necessary to prove his guilt, therefore, evidence is needed. If they are, dismissal is inevitable.
- Intentional damage to property or theft. There is nothing to comment on.
By the way, you can dismiss not only for theft from the enterprise, but also for the theft from the head or any of the employees. The main condition for dismissal under this article will be proven guilt in court and that a person has stolen in the workplace. But nevertheless, the main argument should be a court decision, because quite often the team begins to “make friends” against one person and substitute him.
Dismissal under the Labor Code
Is it possible to fire a person according to the article? Of course, but for this to be within the law, everything needs to be done correctly.
First you need to conduct an internal investigation, as a result of which the employee’s guilt is confirmed. The employee, in turn, must give written explanations of the act. The next step is to issue an order, after which the employee will receive a work book, material compensation and a certificate of income.
To avoid problems, the employer must issue documents in the presence of people who can confirm the return of the papers. In case of disagreement with the decision of the head, the subordinate has the right to go to court.
The latter will wait for arguments precisely from the boss, because he is the initiator of the dismissal. For example, if an employee was skipping, but he has good reason for that, dismissal will be considered illegal. The same applies to the state of intoxication at the workplace, if the boss cannot confirm this with a medical certificate. If a person is fired for disclosing trade secrets, but there are no signs of the latter and there is no one to confirm this, the court will also help the former employee.
Good example
How to dismiss a person from the post of director? If the organization has been experiencing problems for a long time and employees complain that their rights are being violated, then the incompetence of managerial personnel is obvious. What needs to be done in this example?
All employees must write a statement addressed to one of the owners of the organization, and he already at the general meeting will raise the issue of inconsistency of the position. The person will be fired with the wording "Violation of the clauses of the employment contract", as he could not cope with his direct duties.
Dismissal must take place in accordance with the Labor Code and internal regulations. We repeat that the decision to dismiss or leave the directors can be done by the owners at the meeting, the founder’s administration.
And since we are talking about professional suitability, we’ll talk about it.
Inadequate qualifications
We have already answered the question of whether it is possible to fire a person for absenteeism, now we’ll talk about a situation where an employee can’t cope with his duties. If this happened, and the leadership sees this, then such dismissal does not contradict the law. The only thing is that it is important to observe the procedure, because it is with this wording that it is impossible to fire a subordinate.
To deprive the post of an incompetent employee, it is enough to conduct an independent assessment of the professionalism of the CSC (Center for Qualification Assessment). The service is paid, and the costs are borne by the employer. Before firing a person, the boss must offer him a position corresponding to the level of knowledge. If the subordinate refuses or such vacancies are not provided, then it is allowed to terminate the employment contract.
Dismissal after a trial period
We already know that it is possible to fire a person for absenteeism if they are systematic in nature, but with the situation when the trainee did not manage his duties, not everything is clear. The law requires significant arguments that clearly indicate that the intern is not suitable for work. The supervisor must notify the employee of the decision three days before the end of the trial period.
To dismiss the trainee, it is enough to indicate his mistakes in work. If a person considers such a decision unfair, he has the right to challenge it in court. By the way, the latter agrees with the trainee if the employer does not articulate clear reasons for the refusal.
Everything seems to be simple, but there are exceptions to the rule. So, you can’t fire a pregnant woman, a teenager and yesterday’s student. The dismissal of such an employee is considered illegal and is not accepted.
Job cuts
The law provides for the right of the employer to decide the number of subordinates himself. Even if he considers it necessary to reduce his staff, no one can prohibit. But this is not the only reason for the reduction, because the company may be liquidated or simply stop working. If this happens, then employees should know their rights. They are spelled out in article 81 of the Labor Code. According to it, the employer must:
- Notify subordinates in advance who will be dismissed. This should be done two months before the date of reduction.
- Transfer data on the dismissed to the trade unions and the employment service.
- Offer a job in existing positions.
- Pay severance pay to all abbreviated. Its amount is equal to the average earnings for two months.
The question is often asked whether a person of pre-retirement age can be fired. Yes, the law does not regulate this moment, and an employee who is left a little before retirement can be fired. What is the answer in this section? You will understand now. The fact is that such an employee can be fired with a sufficient number of arguments or during a layoff. That is, just in our case, the dismissal of an employee of this category is completely legal.
But there are protected categories of subordinates:
- Women on maternity leave or those raising children under three years of age.
- Women raising children under the age of 14 without a father.
- Women who raise a child with disabilities (under 18 years old).
- Minor workers.
- Legal representatives of a child under the age of 14 in the absence of a mother.
These people cannot be reduced, unless the organization is liquidated.
Sick leave
If the employee is on sick leave, he cannot be fired. But he can write a letter of resignation at any convenient time. If you can’t fire a person for health reasons, then maybe it’s permissible to do this during the holidays? Also no.
The head does not have the right to remove from office a person who is resting. If the organization is liquidated or stops working, then the employee who is on vacation should be warned of dismissal as soon as possible. By the way, all payments that are put in the situation are saved.
The same goes for dismissal during illness. Therefore, the question "can a person be fired on sick leave", of course, is answered in the negative.
Retirement
In connection with the reform, the question arose of reducing retirees. Older people are more interested, because for them, work is a way to stay afloat. So, is it possible to fire a person in retirement? Yes, but not because of retirement. This is not a good reason. The reasons for dismissal in this case are general, that is, pensioners do not have any special privileges.
Once such a sensitive issue is raised, it is worth noting that often employers force retirees to renegotiate a contract. The point is that the usual labor contract is terminated, and it is replaced by an urgent one. This is done so that after the expiration of his term a person is fired. So, no one has the right to force you to change the form of the contract if your desire is not there. Everything done forcibly is illegal.
Already fired
If a person was fired retroactively, this is an occasion to go to court. The Labor Code does not provide for such an opportunity, which means it is an undisguised scam.
The only option is dismissal at will. In such a situation, the employee, as a rule, asks for the service himself, and the management goes forward. But in order to avoid questions, it is necessary to observe all other nuances of the law.
If an employee has died
We have already said that you cannot fire a person on sick leave. And what to do in such circumstances? It is impossible to calculate the deceased, you can only terminate the employment contract for reasons beyond the control of the parties. It is important to understand that a contract can only be terminated after a death certificate is presented. According to relatives, the employer cannot act in this way.
Usually each employee signs an order, but in such a situation no one can do this, and therefore the column is empty.
Work or not work?
Sometimes situations arise that an employee writes a statement of his own free will during a vacation or sick leave, and the manager forces him to work another two weeks. How legal is this? It is completely unlawful, because the boss in this case pursues selfish goals, and is not guided by standards.
So is it possible to fire a person on vacation? Yes, but only if he himself expressed a desire. At the same time, working out the standard 14 days is optional. The same rule applies to sick leave workers.
Two weeks are given to the head in order to find a replacement for the subordinate, which means that a person is considered dismissed after these two weeks. No one is to blame for the fact that they fall on the employee’s vacation.
Stress or release?
Is it possible to fire a person on vacation, on sick leave, during maternity leave or retirement, we have already discussed, but still have not touched on the psychological characteristics of the procedure. There is an opinion that the dismissal affects the employee more than his boss, but this is not so. Leaders are also nervous and try to avoid such situations, because often a good relationship breaks down after the calculation.
Is there a way around this. To dismissal was not a shock, you need to know some psychological tricks.
For example, scientists have found that more men than women experience stress from losing their jobs. This is because the stronger sex is used to realizing its ambitions and being a getter, while a woman can plunge headlong into a family. A man sees dismissal as a failure, and a woman as an opportunity to change life. That is, an inadequate reaction should be expected more from a guy than from a girl.
But how to avoid all this? If you want to conduct a conversation as comfortable as possible for both, forget about the regulatory framework and remember the correct procedure. In psychology, such a scheme is called "positive-negative-positive." Try it, maybe it will make your life easier.
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If there are no problems with the subordinate, the employer draws up a letter of recommendation, which describes the employee from the best side. Of course, this is not a prerequisite, but just a small bonus from a concerned person.
Material benefits
When an employee is fired, they are required to pay compensation. The latter is expressed as the amount for unused vacation and salary for days worked. Still can be paid severance pay, which is provided only in a few cases:
- Upon liquidation of the enterprise. The employee will receive a monthly salary. The same amount will be issued if the employer has violated the terms of the contract.
- When restoring the previous subordinate to his place, conscription, refusal to transfer to another job. As a rule, compensation is issued in the amount of a two-week salary.
When the organization is liquidated, former employees must also be paid wages for two or three months, until they find a new place.
Important points
In order for a person to be fired from work, you need a reason, but if there is one, the procedure takes place immediately. And at that moment an organizational question arises. How to transfer cases to an employee? Where to hand over those orders that are still in work, and so on. All organizational nuances should be spelled out in the internal documentation of the enterprise.
Probably, the main thing is to properly accept matters from a financially responsible person. He takes an inventory, checks the state of affairs and the safety of property. After the procedures, an acceptance certificate is drawn up.
If there is no new candidate for the position, then all unfinished cases are handed over to an authorized colleague. This should be done during the dismissal, because after the head can not pull the former employee.
When a person leaves, he is obliged to return the clothing and tools to the warehouse. If the employee has not returned, he will reimburse the cost of things. The basis will be an agreement in which the time of issue of clothes is prescribed.
In the case when the former subordinate continues to use the office phone and does not want to return it, the boss has the right to deduct 20% from the salary.
Conclusion
It might seem that the dismissal procedure is rather complicated, but no. Of course, there are nuances that must be observed, this is the work of the head and personnel department.
In order to avoid the problem of firing an employee, you need to at least a little understanding of psychology. After all, the news feed plays a big role. For some, it will become a trauma for life, and someone will quickly pull himself together and move on.
People are different, and each needs its own approach, but there are general rules. For example, try to resolve the issue peacefully. If possible, then you can protect yourself from litigation and conflict. Well, if not, then you need to strictly adhere to the legal framework in order to continue to deprive the former employee of the opportunity to play a dirty trick.
Unfortunately, there are not only dishonest bosses, but also arrogant subordinates. Such should be put in place as correctly as possible and not be fooled by their provocation.
I would like to note that if your company has a large staff turnover, then perhaps the problem is not at all with subordinates. Evaluate all adequately, by your abilities, even yourself, and then conflicts with the staff will not arise. And remember: work should bring joy and only good emotions. A close-knit team will help you to tune in a positive way, which will only increase productivity. And protect the nervous system from overvoltage.
Is it possible to dismiss a person on vacation, on sick leave, a minor, we have already sorted it out, it remains only to correctly apply knowledge in practice.