All employees, when applying for a job, sign an employment contract, which lists their job responsibilities. Employees are also required to obey the organization’s internal routine, comply with the work schedule and follow the job description. Inadequate performance of official duties leads to dismissal, and in some cases, employers dismiss negligent employees precisely under the article.
What the law says
Let us consider in more detail those violations for which dismissal may follow:
- The absence of an employee at his workplace, which is not supported by any good reason. Repeated lateness is also taken into account.
- The unwillingness of the employee to fulfill his labor obligations when changing labor standards or internal regulations.
- Periodically recurring violations in labor activity or working regime. If a violation has been identified once, then a disciplinary sanction is imposed on the employee.
Who determines that the employee is not coping
Non-fulfillment or improper fulfillment of duties is when the employee has certain labor obligations, and he is able to cope with them on his own, but does not do this for unknown reasons.
Anyone can identify this fact: from the leader to an ordinary client who was not served by an employee. If the failure was identified by the head of the department, then he must record this event in a memorandum to the higher management. If it was a client, then he can make a complaint and also refer it to the management. Such a document is the basis for checking the employee for improper performance of official duties.
The complaint itself is not a reason to bring a person to disciplinary liability, but if during the verification the facts stated in it are confirmed, this can serve as the beginning of the dismissal process.
There are cases when the duties of an employee include the execution of various orders. In order to protect themselves from possible misunderstandings, management should set out such tasks in writing and allow them to get acquainted with them under signature. In the case when the job is ignored, this also needs to be fixed.
The legislation does not establish a list of persons who can identify improper performance of work. As mentioned earlier, it can be anyone. It is important that all the information presented in the note is truthful.
A sample employee memo is presented below:
And before punishing an employee, you should find out the reason for this behavior. It may turn out that he simply does not know how to do what is required of him. But does not know how and does not want to be able to - these are two different concepts. And this also needs to be taken into account.
It is better to say that an employee cannot cope with these responsibilities if he really does not have the necessary skills or abilities that are necessary for a successful outcome.
By law, an employer is not required to train its employees, but practice shows that many job seekers need it. Therefore, before demanding something from a new employee, it is better to provide him with an unpaid internship with a more experienced employee.
Order of registration
If improper performance of official duties (article of the Labor Code of the Russian Federation 192) has been proven, then management may proceed to the process of dismissal. This procedure takes place in several stages:
1. Recognition of the facts. Any task that an employee must perform must be reflected in writing and given to him under his signature. If this order is not executed, this event is recorded in a special act or in the report (an example of the report is presented below).
2. Checking for non-performance. At this stage, all information that proves the improper performance of obligations must be collected.
3. Obtaining an explanation from the employee. This step is considered mandatory. If the employee did not fulfill the assigned task and did not write an explanatory note on this subject, this does not mean that the process leading to the punishment should be stopped. An explanatory note can both serve as the basis for holding a person liable, and prove his innocence, in other words, confirm that the non-execution did not occur on purpose. It is important to know that if the leader entrusted a task that is not part of the official duties of the employee, and he did not fulfill it, this is not a basis for disciplinary punishment.
If an explanatory note is provided, then:
- the facts stated must be studied and verified, and a conclusion must be drawn on the validity of the information provided;
- reveals the presence and degree of guilt of the employee;
- it will become clear why the non-fulfillment occurred;
- reveals the employee's attitude to work before the incident.
When the violation does not entail serious consequences for the company, the employer may limit himself to remarking or reprimanding. More serious misconduct should lead to the termination of the working relationship with the employee.
4. Issuing an order. The order is issued when a disciplinary sanction is imposed in the form of dismissal. It should reflect the facts about the presence of previous comments or reprimands, acts that reflect unfulfilled duties, as well as a description of violations (place, time period, circumstances and documents confirming this).
The submitted documents are the grounds for terminating the employment contract at the initiative of the employer.
The timing
In order to present an explanatory note to the management, the employee is given two days from the moment he got acquainted with the request for this document. If the punishment is inevitable, then the employer must bring it to execution within a month from the moment when improper performance of official duties is discovered. This period may be extended if the employee was on sick leave.
Disciplinary sanctions are not applied if more than six months have passed since the violation.
In case of violations that are identified by audits or audits, the employee shall be punished within 2 years from the date of their discovery.
According to the law, there are categories of workers who cannot be subject to disciplinary action in any case. These include:
- women in position;
- an employee on sick leave or on vacation.
Dismissal. Payouts
If the employer has not violated paragraphs of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, as well as it was proved accordingly that the employee did not fulfill labor obligations, you can issue a dismissal order. This document should contain all the necessary information proving the fact of guilt.
The employee himself must be familiar with this order. If he did not want to do this, it is necessary to draw up an act fixing this circumstance. And already in the dismissal order, indicate all the grounds for termination of the employment contract at the initiative of the employer and the relevant documents confirming the guilt of the employee.
As for compensation payments, the dismissal due to the above circumstances does not provide for the payment of any special allowance. An employee is entitled only to wages and vacation pay (if the vacation is well-deserved and not paid off).
Employment record
Entries in the work book and in the personal file must be made on the basis of an order. HR workers are referred when recording on Art. 81 of the Labor Code of the Russian Federation.
Employer Responsibility
If the employer applies this type of punishment, as a penalty for non-performance of official duties, then this must be approached with all seriousness. At the slightest flaws and the possibility of challenging the employer's decision in court, penalties may be imposed on the latter.
When leaving, you must check:
- the employee has not taken disciplinary sanctions;
- the correctness of execution of all penalties (it is necessary to attach a sample of a memo to the employee);
- the employee’s signature on familiarization with the duties and other documents that are directly related to his labor activity;
- the correctness of the entire process of bringing the employee to disciplinary liability.
If the employer made mistakes and the result of the dismissal was challenged in court, then he will be brought to administrative responsibility. In addition, he will be required to reinstate the employee and pay him compensation.
By the way, for managers also provides for the liability prescribed in Art. 5.27 Administrative Code of the Russian Federation. In this case, any administrative punishment is applied only by state bodies.
Employee Implications
As such, the legal consequences of dismissal under Art. 81 a citizen does not. But the record corresponding to this article will not have a very good effect on a person’s status when he wants to triple for another job.
Dismissal for improper performance of official duties is not a reason to end your career, but you still do not need to allow such entries on the employment form.
Arbitrage practice
Judicial practice shows that the fact of dismissal can be challenged:
- If the order was issued incorrectly. The specific action leading to the violation was not indicated (an example of a memorandum is given earlier).
- If the misconduct does not correspond to the severity of the punishment.
- When the violation occurred the first time.
- In the process of detecting a violation, an explanation was not requested from the employee.
- The deadlines are exceeded relative to those established by law.