Most often, the reason for dismissal is the need to reduce staff or the predicament of the company. Regardless of the reason for which the employee is suspended from service, his rights and legal social guarantees must be fully respected.
Types of layoffs. General grounds for termination of an employment contract
A full list of reasons why an employee may be suspended from service is discussed in article 77 of the Labor Code of the Russian Federation. This is the following:
- Mutual decision of the parties, when the termination of employment occurs by mutual agreement.
- The termination of the contract and the lack of initiative of the parties regarding the extension.
- The employee initiates the termination.
- The initiator is the employer.
- An employee asked to transfer him to another job within his company or outside it.
- If the employee is not ready to put up with such global changes, such as a change of leadership, ownership, or other changes in the status of the enterprise.
- If the labor contract is amended, but the employee does not agree with them.
- If an employee needs to transfer to another job for medical reasons, and the employer cannot offer a suitable position due to its absence.
- If the company changes its location, the employee has the right to remain in the same territory.
- Other circumstances in which there is no fault of the parties.
- Violation of the terms of the current contract.
Depending on the circumstances, there may be other types of layoffs that are specific to each particular case. Consider the legal types in detail.
At the request of the employee
Such an outcome of labor relations is described in article 80 of the Labor Code of the Russian Federation. According to its provisions, the employee must send the manager a written appeal in which he sets out his decision to quit his job and the reasons for such a decision. Between the date of communication and the date of actual departure from work, the temporary distance must be at least 2 weeks. According to the law, the countdown will start from the next day when the employer has received a written message from the employee. But this is not a principle rule. If the parties agree to complete the employment before this deadline, then there is no prohibition on this.
What may be the actions of the employer? Does he have the right to disagree with such a decision? It all depends on the reasons for dismissal. There are cases in which the employer does not have the right to prevent the dismissal of an employee, if this is due to other objective circumstances. They can be:
- Violation of the terms of the employment contract.
- Ignoring the important provisions of the collective agreement.
- The onset of the retirement age of the employee.
- Admission to study.
After the head is notified, and the deadline is over, the employee on the appointed day has the right to stop working. But if during this period he changes his mind in favor of work, and the employment contract has not yet been terminated with the employer, then he can continue to work normally.
The date of dismissal is notable for other factors. For example, after the employee is notified, it is quite natural that the employer begins to look for another applicant in his place. If this happened, and there is written confirmation (application from the new candidate for employment, an order from the head of the appointment or otherwise), then the employer will be obliged to make a choice in favor of the new applicant. This is a requirement of the law.
As an alternative, the employer may offer a change of mind employee a different position or place of work. But this is his right, not his duty. But if the employee still decided to stop working in this company, then on the appointed day he needs to write a letter of resignation. The head must sign it, and the personnel department issues a work book, diploma and other documents. Bookkeeping calculates payroll.
At the request of the employer
Types of layoffs take into account the will of each of the parties. The initiator of the termination of employment may be not only the employee, but also the head. And there are much more provisions that should be found out in detail. The legislative basis of this situation is regulated in article 81 of the Labor Code of the Russian Federation. According to her, the head has the right to dismiss for the following reasons:
- The closure of the enterprise. If it is an individual entrepreneur, then the termination of activity is official and in fact.
- Reducing the number of employees in the state.
- The employee does not meet the requirements of the occupied place. The basis for such a statement should be certification to a qualification level.
- If a new manager comes to the company, then he has the right to review the personnel policy. If she considers it necessary to fire someone, then this will happen. But the reasons must be lawfully justified.
- If the employee systematically violates the rules of labor discipline.
- Gross violation of labor discipline. This will be discussed in detail later in the material.
- Committing property damage to the company.
- Immoral acts and behavior.
- Other types of damage to the enterprise.
- If we are talking about the heads of enterprises, branches and representative offices, then for their dismissal a single violation of labor discipline is sufficient.
- If at the conclusion of the contract fake documents were used.
- According to the decision of the team.
Types of layoffs and their reasons do not end there. But one requirement remains unchanged - the legal justification for dismissal and the preparation of relevant documentation.
What is a gross violation of labor discipline?
Labor discipline requires strict observance. Sometimes it is very tough and with maximum requirements. But this does not give the right to violate it, since there is a dismissal for truancy under the Labor Code of the Russian Federation. Other reasons an employee may lose their seat are:
- Being at the workplace and during working hours while intoxicated. Also, the employer has the right to dismiss if the employee was discovered under the influence of psychotropic substances, used narcotic or toxic agents.
- Skipping a working day without a good reason.
- When working in an enterprise, each employee gains access to company property. This can be both material values and information relating to the activities of the company. If an employee inadvertently or specially shares this information with other persons, then this is also an occasion for his dismissal. The same consequences await when distributing personal data of another employee of the company.
- If the employee has caused damage to the property of the company through theft, embezzlement or damage with intentional motives. But for the dismissal to be legal, the employer cannot make a decision until a court decision is made. In the event of such cases, the head must contact the law enforcement authorities. If sufficient evidence is gathered, then dismissal is allowed.
- In the same way, a violation of labor standards and safety rules can be established if they entail significant consequences or create a threat. In order to prevent such an outcome, the employee must always follow the job description and follow the safety procedures at work.
Legal nuances
Types of layoffs depending on the initiator are reduced to two. If the initiator is an employee, then everything is simpler. When it comes to the employer, he has yet to draw up a reason for dismissal in writing. If he has complaints against the employee, then he must substantiate them with the help of examinations, investigations and other types of evidence collection.
For example, when it comes to dismissal for absenteeism, the Labor Code of the Russian Federation recommends that the employer compromise and limit himself to educational or administrative measures in the form of reprimands and warnings. Or another case: if an employee came to work while intoxicated, then the basis for dismissal can only be the result of a medical examination, which confirms the presence of intoxicating substances in the blood. If we are talking about a mismatch of qualifications, then the basis should be the decision of the commission, which will conduct certification and, based on the results, confirm a low level of qualification.
If there is a need for disciplinary action in the form of dismissal, then a representative of the trade union should participate in all procedures and examinations.
What can not be fired?
Even in cases where there is evidence that the employee has grossly violated labor discipline, some legal possibilities remain for him. Before finally dismissing an employee, the employer must look for another job that is appropriate to the qualifications of the employee. Dismissal can be carried out only if suitable work was not found. Offering another job is not the obligation of the employer, but his right, unless otherwise specified in the employment contract.
If it is a matter of causing material harm, then dismissal is considered illegal if more than a year has passed from the moment of the actual incident. The same rule applies to the criteria for immoral acts committed more than a year ago and not in the performance of official duties.
It is also impossible to dismiss an employee from his post while he is on legal rest or when he is not able to perform official duties for medical reasons. Here only one option is possible - dismissal from work after vacation.
Reduction Rules
Unforeseen economic conditions and individual development of the company are accompanied by all sorts of risks for workers. One of these risks is downsizing. The logical question arises: by what criteria are candidates selected for reduction?
This moment is regulated by article 179 of the Labor Code of the Russian Federation. According to her, in the initial selection, employees with higher qualifications have an advantage. If everyone has equal qualifications, then the principle of humanism and social responsibility is applied. With equal qualifications, the following categories of people have more chances to save work:
- Those with dependents.
- Employees who have been injured or injured while working in this enterprise.
- Family employees who are the only ones working in the family.
- Disabled people.
- Employees constantly improving their skills on the job.
- Other persons stipulated in the collective labor contract.
The general grounds for termination of the labor contract of the Labor Code of the Russian Federation or other reasons must be communicated to employees in writing and under signature. Such an obligation is established by article 180 of the Labor Code of the Russian Federation.
If the volume of work has decreased, the employer has the right to release employees earlier than the specified period. At the same time, he must fully pay off with them as for the full time of work. Calculations are based on average wage rates.
Compensation
The law ensures that working people do not overtake surprises in terms of employment. For example, if a reduction in wage workers is planned, the employer must inform the union representatives no later than two months before the date of dismissal. If the manager intends to dismiss employees in droves, this period must be at least 3 months.
In special cases, insurance measures are provided for employees. A striking example is the compensation for dismissal to reduce staff, as well as the liquidation of the enterprise. The amount of compensation varies depending on the average wage. Duration of payment also varies.
Upon dismissal under Art. 81 upon termination of the employment contract at the initiative of the employer, a one-time severance pay of one salary is required. Also, the employer undertakes to pay wages for the period of employment of a new employee. The maximum period of employment is two months from the moment of release from the occupied place.
According to article 178 of the Labor Code of the Russian Federation, it is possible to extend the period for compensation. To do this, the employee upon the dismissal must contact the state employment authorities at the place of registration. If this body was unable to employ a citizen, then he is entitled to receive compensation for the third month of the unemployed period.
General grounds
Article 77 of the Labor Code of the Russian Federation clarifies the features of the general conditions for dismissal from work. They can be:
- The consent of the parties.
- Expiry of the employment contract.
- Termination of the contract at the initiative of one of the parties.
- Transfer of the employee to another job.
- Refusal of the employee to move with the company.
- Refusal to work due to changes in working conditions.
- Circumstances independent of the parties.
- Violation of the terms of the contract or labor discipline.
Article 77 of the Labor Code of the Russian Federation also admits that termination of labor cooperation may occur for other reasons not specified in this list.
What is unused vacation?
Article 127 of the Labor Code of the Russian Federation considers such a concept as unused vacation. Compensation is relied not only on potential working time, but also on potential leave that could be received and paid if the employee continued to work at the enterprise.
Upon dismissal, he is entitled to receive vacation pay. The formula for calculating unused leave upon dismissal is as follows:
Amount sought = unused vacation days X average daily earnings
But the employee has the right to use this leave as intended before dismissal, if the reason for the dismissal is not his misconduct, but a preliminary decision or other reason.
If the question arises as to what procedure for dismissal of workers with the payment of unused vacation pay, it should be noted a number of persons for whom payment is made according to the number of working days, and not a month. These are usually workers hired for the season, and those with whom the contract is concluded for less than 2 months.
It should be borne in mind that compensation in this case is calculated in the same manner as for other employees.
If you have not paid compensation?
For non-payment of compensation, a fine is imposed. Its dimensions are prescribed in the framework of part 6 of article 5.27 of the Administrative Code of the Russian Federation. The labor inspection is responsible for the collection and imposition of a fine. It is also useful for citizens to know the features of the termination of the employment contract at the initiative of the employee (article and other provisions).
If the company-legal entity is guilty, then a fine of 30 to 50 thousand rubles will have to be paid. At the same time, separately from the company, the official will be punished in the amount of 10 to 20 thousand rubles at his own expense. If the employer conducts its activities as an individual entrepreneur, then he will have to pay a fine in the amount of 1,000 to 5,000 rubles.
If the employer does not refuse payments, but delays in time, then the employee is fully protected: he has the right to demand additional compensation - for the delay in compensation payments.
In case of retirement
Retirement is not allowed in the Labor Code of the Russian Federation. If such facts do occur, then they should be considered as discrimination by age. If we are talking about the termination of work due to the inability to pursue a career, then reference should be made to part 3 of article 77 of the Labor Code of the Russian Federation. It states that if in the application the employee indicates the reason for dismissal “in connection with retirement”, then he is no longer required to work 2 more weeks after the application for resignation.
An entry in the employment must also be made correctly: the date of dismissal, the number of documents, grounds, the order and the reason for leaving - at will and in connection with retirement.
The reason for retirement is age. However, there are types of activities on which pension is envisaged before reaching age limits. But upon reaching retirement age, a person can continue to work as usual. Regardless of his decision, he will also be protected under the Labor Code of the Russian Federation.
Can they cut a pensioner?
If we are talking about targeted staff reduction, then dismissal is carried out by agreement of the parties with an entry in the labor indicating the grounds. But it is unacceptable to present the dismissal of a pensioner as a layoff. One of the important signs of targeted reduction is the liquidation of the post after the employee is dismissed. If the position is retained and after another pensioner is occupied by another employee, then this is classified as an offense.
Management must notify the pensioner of the reduction of staff two months before the planned date. Then an appropriate order should be prepared. If possible, the employee should offer another job that matches his qualifications, and if there is a desire to continue working. A proposal for a new job is also made out in writing.
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