The number of appeals to labor lawyers is growing from year to year. On the one hand, this is a positive trend, as workers increasingly want to solve problems within the framework of the law. On the other hand, does this mean that employers more often neglect workers' rights?
Subjects of labor law
The law is designed to protect the interests of everyone. But law always breeds responsibility. This moment is very important for everyone to know, since the protection of rights depends on the measure of responsibility. The right to work is one of the fundamental rights of a modern citizen of the Russian Federation. It is enshrined in the Constitution of the Russian Federation.
The labor code is relevant only for subjects of labor law. They are individuals and legal entities that have labor relations with each other. Labor relations must be recorded in writing. For this there is an established form of an employment contract.
It should be taken into account that if a citizen works unofficially, that is, without concluding an employment contract and without applying for a staff, it is almost impossible to protect his rights. Subjects have a time frame. So, an individual becomes a subject of labor law only upon the conclusion of an agreement with the employer. From the contract you can learn about such key points as the procedure for hiring, granting leave, payroll and what articles can be fired from work.
Order
The employer has no right to dispose of employees at their discretion. Each of its decisions must be substantiated by specific articles. Similarly, an employee cannot care only about his rights. He has duties declared by the employment contract. If any requirements of the employer are beyond the scope of the contract, then these issues should be discussed in a timely manner, and decisions should be made in writing. There are frequent cases when a subordinate himself can provoke the dismissal of an employee under the article. Next, we consider the reasons why such an outcome is possible.
Company Translation
In some cases, the manager may offer the employee another position in his organization. The reasons may be different: closing the previous position, lack of qualification or another. Article 81 of the Labor Code gives the head such a right.
Moreover, a new position may be less prestigious, with a lower level of wages or involving a greater load. The employee has the right to choose whether to accept the offer or refuse. But before you refuse, you should find out on what articles can be fired from work, since it is precisely Article 81 that gives the employer such a right.
Qualification mismatch
Any work in the enterprise requires certain knowledge, skills and abilities. When applying for a job, it is not always possible to verify their authenticity. Everyone knows the reality in which you can buy any document. A resume, however, has no legal force. The employer has the right to apply for an acceptable quality of work, as he pays for this work. Inconsistency with the professional level of the position held is another reason to dismiss from work under Article 81 of the Labor Code of the Russian Federation.
The procedure for checking compliance and making decisions is governed by the third part of this article. The mandatory procedure is the creation of a special commission, which should include:
- direct supervisor of the applicant for dismissal;
- Head of Human Resources;
- director of the company.
The commission carries out certification verbally or in writing. The list of tasks should not go beyond the specialization of this employee. For example, if the subject is an accountant, then he should not pass certification on legal or marketing issues.
Validity of certification
Based on the results of certification, a protocol is drawn up. Based on the protocol, an order of the head is formed. If the employee believes that the certification was unfair, for example, questions were asked not according to his qualifications, he has the right to challenge the decision of the commission. It is important to consider this point, since a similar method can be applied as an intentional disqualification or by malicious intent of another official. And if you were dismissed from work under article 81, then a further career becomes a big question.
In case of disagreement with the opinion of the commission, the employee has the right to file a complaint with the Labor Inspectorate or with a claim to the judicial authority. You can file concurrent complaints with both bodies. The supervisor first checks the results of the certification and makes an appropriate decision.
Misconduct
Studying the question of what articles can be dismissed from work, objective factors should not be discounted. Irresponsible employees, neglect of their own duties, misallocation of company resources - a common occurrence in the company. It is important to understand that each manager wants a feasible contribution of employees to the development of the enterprise, especially if there are all conditions for this. If they are not, then you should raise the job description for each category of employees and remind its position to the head. By law, he must provide employees with a safe and comfortable working environment.
Violation of labor discipline can be of a different nature. In occasional cases, you can get a warning. If there is no effect, then the leader has a large selection of solutions:
- Reprimand.
- Written warning.
- Dismissal under the articles of the Labor Code.
For example, in the fifth part of Article 81 of the Labor Code of the Russian Federation. And if there are good reasons, then they must be documented. For example, with illness, a sick leave is issued.
Absenteeism
If the employee cannot provide documents about the reason for missing the working day, then all these days are qualified as absenteeism. In episodic events, the supervisor may require a written explanation. The validity or disrespect of the cause is determined by the leader.
But what about cases when circumstances force several days to be absent from work? How to prevent dismissal for truancy under an article of the Labor Code of the Russian Federation? This point is also reflected in the legislation. Not less than 2 days before the expected date of absence, you must write a statement in duplicate. One is provided to the supervisor. If he does not mind, then puts the mark "Do not mind." This approach is legal and will save the employee from being fired for absenteeism under the Labor Code of the Russian Federation.
This document is transmitted to the personnel department. At the end of the reporting period, when it is necessary to accrue wages, a human resources officer will mark these days as absenteeism for a good reason. In this case, the employee does not face any punishment. True, these days will not be paid.
Lateness
What other articles can be fired from work? According to the Labor Code of the Russian Federation, the norm of working hours per week is 40 hours. Start and end times may vary depending on the type of company activity. 40 hours is the total amount of hours worked. The length of time at a particular enterprise is regulated by internal documents.
All residents of big cities have one common problem - the problem of moving around the city. Most people of working age have a standard work schedule - it starts in the morning and ends in the evening, which creates huge obstacles to the movement of all types of vehicles. In such cases, being late for work is a natural result.
But employers do not agree to come to terms with this situation. Each company has its own ways of dealing with lateness. But labor law states that being absent from work for more than 4 hours in a row is already considered a gross violation of discipline. If this happens occasionally, then the leader may be limited to reprimand or warning. There are also penalties - penalties of a disciplinary nature. But the habit of being regularly late for a few hours is already an occasion for choosing cardinal methods.
Amoral behavior
Few people know about part 8 of article 81 of the Labor Code of the Russian Federation. According to experts, this paragraph is one of the controversial provisions in the law. Perhaps for this reason this article is not used as often. Dismissal for immoral behavior concerns specialists with high intellectual tasks. It:
- Teachers
- Teachers
- Kindergarten teachers
- Other persons related to the educational system.
It is important to consider that for persons working in educational institutions, but not directly involved in educational activities, such an article cannot be applied.
Workplace drinking
The corresponding entry in the employment and dismissal under the article may also occur due to bad habits. There are several important guidelines in the law regarding termination of employment under this article. For example, the fact of drinking alcohol and being drunk directly at the workplace is mandatory. This must be fixed in such a way that later it can be proved.
The mere fact of drinking alcohol is not an excuse for entry into employment and dismissal under article. But if the employee appeared already drunk, then this argument is not in his favor. It is also important to consider, especially for employees, that the consequences of not only alcoholic drinks, but also the use of other intoxicating substances are considered intoxication.
Liquidation of an organization
The termination of the company - this is perhaps one of those rare reasons for dismissal, which is absolutely independent of the will of the employee. A company may be completely closed, merged with another company or transferred to a new owner. But part 4 of article 81 of the Labor Code of the Russian Federation states that the new management has the right to dismiss only the following employees:
- The head of the company and his deputies.
- Chief accountant.
All other employees are legally free from the arbitrariness of the new leadership. There is another case - staff reduction. In this case, there is also a ban on the dismissal of certain individuals. For example, workers who are the sole breadwinners in a family cannot be fired. Also, specialists with significant experience in this company can apply for the opportunity to work. If they were illegally fired from work, then the Labor Inspectorate or the judiciary will help restore justice.
Theft or embezzlement of company property
The performance of labor duties in one way or another opens up access to the company's property. Some specialists are responsible for the entire financial condition of the organization. Managers do not have any safety measures or levers of prevention against theft or embezzlement of property of the enterprise. There is only a law that can take measures ex post. Therefore, such phenomena and their resolution go beyond the scope of the Labor Code and border on the Criminal and Administrative Codes. However, in practice, everything is not so simple.
In practice, the largest share of embezzlement and embezzlement is held by employees of the financial sector. For example, it may be the chief accountant, cashier or other employee who has access and knows the system of the enterprise. If a shortage is detected at the end of the shift, it is unlawful to automatically appoint the culprit.
At the first stage, an act is drawn up, law enforcement agencies or the company's own security service are involved. If, based on the results of an internal investigation, it was possible to identify the culprit, then the leader has several options:
- Dismiss for the article.
- Understand, forgive and give the opportunity to quit on their own.
- Write a statement to the court and demand punishment.
The latter is appropriate when it comes to large sums and can be traced malice on the part of the employee. However, in practice, managers often choose the second method, since high-profile proceedings can adversely affect the company's reputation.
Loss of employee confidence
Employees of the above sectors may be fired before a more serious event like theft or embezzlement occurs. Loss of trust is distinguished by the fact that in this case the employee does not have malicious intent, and material damage is caused due to his irresponsibility or negligence. For these reasons, the following employees may be fired:
- Accountant.
- Cashier.
- Warehouse Manager.
- Economist.
- Seller.
- Forwarder and more.
Here the procedure is similar: an act is drawn up about what happened, an investigation is being conducted and only by its results can the perpetrator be identified. Typically, an inventory or audit is carried out to verify material and financial values. Are such employees fired from work under the article? Yes, no leader will like an irresponsible attitude to work.
Who should not be fired?
There is a category of workers who are protected from dismissal at the legislative level. They are clearly indicated in the Labor Code of the Russian Federation. Usually this category includes the most vulnerable category of citizens. Most know that this list is headed by single mothers and the only breadwinners in the family. However, many are interested in whether a pregnant woman can be fired from work. Consider the entire list:
- According to article 261 of the Labor Code of the Russian Federation, pregnant women who have submitted a certificate from the antenatal clinic about their situation cannot be dismissed under articles 77 and 81. The exception is the liquidation of the enterprise. But in this case, there are a number of reservations.
- It is also impossible to dismiss an employee during his leave under articles 77 and 81, with the exception of the closure of the enterprise.
- According to article 77 of the Labor Code of the Russian Federation, dismissal is considered illegal if the relevant order was issued while the employee was in a state of disability. A similar exception is the closure of a company.
- Also in other cases, except liquidation, it is impossible to dismiss a woman who has a child under 3 years old.
- This category also includes a mother who has a child with a disability under the age of 18 years.
- Also, you cannot dismiss a father, grandmother, grandfather, or other person who has a dependent child with a disability under 14 years of age.
Given these provisions, we can say that the question of whether a pregnant woman can be fired from work should not bother future mothers. They are insured until the child is 3 years old.
What does voluntary dismissal mean?
Dismissal on their own is the most common wording. Why can they get fired from working with such a verdict? Legal aspects are regulated by article 80 of the Labor Code of the Russian Federation. Often there are cases when, in practice, the head himself proposes to issue an exemption with this wording for one or another offense of the employee. And such a step is justified, since another article involves evidence of employee guilt. There is also a great advantage for the employee, as his honor and reputation are not tarnished and he can easily find another job.
Upon dismissal at will, the employer is required to comply with the established rules of registration. The employee must inform about his intention no later than 2 weeks before the date of dismissal. He has the right not to explain the reasons for his departure. If over the next two weeks he changes his mind about quitting, then his position will remain with him.
Another question: if voluntary dismissal is planned, under what article is this fact documented in the work book? The work book will contain a reference to the law - “dismissal under article 80”. This clause has no negative consequences for either the company or the employee.
Conclusion
Dismissal under the article is notable for the complexity of the process. If an indictment is applied against the employee, then his guilt must be fully proved. It takes a long time and labor. For example, embezzlement or theft requires an investigation in 3 stages. As a result, a decision and a sentence should be drawn up. Only then can we begin the process of dismissal.
In addition, we must not forget about the psychological factors in the team. Some workers may fall prey to fake combinations or may simply be used by other workers for fraudulent use. Given all these factors, we can say that the choice of Article 80 is a universal solution in many personnel matters.