Termination of employment due to loss of trust on the part of the former employer is a legal procedure provided for by law as an effective way to get rid of an unscrupulous employee. Cases of dismissal due to loss of confidence are now often found in labor practice. Applying this legal basis, it is important to correctly execute each stage of dismissal, since any violations committed during this procedure may serve as the basis for a trial with a former employee. The result of the lawsuit may be the recognition of the actions of the employer as unacceptable and illegal, with consequences in the form of reinstatement at the previous place of work and (or) amendments to the work book of the dismissed employee. How should the dismissal procedure be carried out in connection with the loss of confidence? Who can and who cannot be fired on this basis?
Grounds and conditions for dismissal
As a rule, when it comes to termination of employment contracts due to lost trust, the basis for this is clause 7 of article 81 of the Labor Code of the Russian Federation. You should be aware that the dismissal of an employee in connection with the loss of trust is permissible under the following conditions:
• There is irrefutable evidence that the employee committed guilty acts that served as a reason for the loss of confidence. Such actions may include embezzlement, proven facts of corruption, neglect of material assets entrusted to an employee, concealment of information about income or criminal record for economic crimes, etc. The general list of acts is contained in the Labor Code of the Russian Federation (see paragraph 7.1 and paragraph 7, article 81). Dismissal due to loss of confidence is required to be proved during an internal investigation. There is no need to involve an employee in the framework of an administrative (criminal) case.
• Such a basis as the article “Dismissal due to loss of confidence” can be applied exclusively to employees personally serving (performing the functions of storing, transporting, receiving, issuing and so on) material assets, especially cash. This condition should be assigned to the employee documented, on the basis of specific points of the labor contract (contract), job descriptions, contracts for full (collective or individual) liability and so on. This principle, valid for cases of dismissal on the basis considered in this article, is perhaps violated most often. As an example, the dismissal of "the seventh point" of employees in such positions as chief accountant, economist, accountant. Experienced lawyers recommend applying “loss of confidence” in relation to this category of workers with extreme caution, focusing on whether the employee has responsibilities for direct contact with funds, the functionality of a cashier or accountant, for example. The absence of such duties from the dismissed “accounting employee” often leads to the fact that in court a former employee is easily and quickly reinstated from the employer in his post or receives the required compensation.
• If the loss of trust of the employer occurred as a result of actions related to the performance of labor duties, the dismissal of an employee in connection with the loss of confidence will also be considered as a measure of disciplinary action. For this reason, an indispensable condition for termination of employment on this basis will be strict observance of all stages of the disciplinary procedure within the time limits set for this.
Dismissal from state or military service
You should be aware that the dismissal in connection with the loss of confidence can be made not only on the basis of the above article, but with the application of federal law relating to a particular profession. For example, this applies to persons employed in the public service, law enforcement agencies or professional military.
If we consider the dismissal of a serviceman in connection with the loss of confidence, then when issuing an order in this case, one should be guided by the Regulation on the procedure for military service, namely, the clause on the procedure for dismissal of a serviceman. Based on paragraphs. d. 1, 2 of part 3, a soldier may be dismissed with the wording “in connection with the loss of confidence” if:
• Information about the income and property of the employee, his wife and children of minor age is not intentionally provided (or provided incompletely, unreliably).
• A soldier carries out any entrepreneurial activity.
• A soldier participates in the management of a commercial organization, receiving cash payment for this, as well as in the case of activities in the field of governing bodies or other bodies of non-profit foreign organizations. These grounds for dismissal have a number of exceptions, all of which are defined by the Federal Law (this edition) “On Military Duty and Military Service”.
• There is a case of failure to take measures to resolve (prevent) a conflict of interest, in which one of the parties is a serviceman himself. A commander who was aware of the fact of the personal interest of a subordinate who did not take action could also be dismissed.
Similar provisions governing the grounds for dismissal in connection with the loss of confidence are available in the federal laws “On the Prosecutor's Office”, “On the Police”, “On the State Civil Service” and so on. At the same time, the need to prove the guilt of the dismissed employee and the strict observance of the terms and procedures of dismissal remain common.
When can not be fired?
Even if there are completely proven guilty acts, it is not permissible to dismiss due to loss of confidence:
• In relation to a pregnant woman.
• During the period of temporary absence of the employee (vacation or sick leave). In this case, you will need to wait until the employee returns to his job responsibilities.
• There is also a restriction on the dismissal of a minor: dismissal due to loss of trust will need to be agreed with the local labor inspectorate and the representative of the juvenile commission.
Stages of the dismissal procedure
As mentioned above, the dismissal in connection with the loss of confidence for misconduct committed as part of the performance of direct duties, the Labor Code refers to disciplinary sanctions (Article 192). In this regard, the termination of labor relations on the basis under consideration should be carried out in the manner prescribed by article 193 of the Labor Code of the Russian Federation. This means that the order of dismissal in connection with the loss of confidence:
• Detection and fixing of guilty actions of the employee.
• Conducting an internal investigation.
• Obtaining a written explanation from the employee (drawing up an act of refusal to explain).
• Act on the results (results, conclusions) of an internal investigation.
• Issuing orders.
• Dismissal.
Duration of termination due to loss of confidence
An important condition for observing the legality of the dismissal procedure will be the termination of the employment contract within the time limits established for this by labor legislation.
It is permissible to apply dismissal due to loss of confidence within one month, starting from the moment when the employee’s misconduct was revealed. This period does not include:
• The time required to agree on a decision on dismissal with a trade union organization (if there is a given representative body).
• Periods of absence of the guilty employee at the workplace (sick days and holidays).
It should be remembered that it is impossible to apply disciplinary action (in this case, dismissal) later than six months from the day when the guilty acts were committed. The exception is misconduct identified as a result of an audit or financial and economic audit: in this case - no later than two years.
Internal investigation: basis, documentation
The employee’s actions that caused damage or created the risk of damage to the employer's material assets should be recorded in an official document: inventory report, memorandum (official) note of the immediate supervisor, act of identified shortage, etc. Such a document is the basis for starting an internal investigation, the purpose of which is either to confirm the guilt of the employee or to establish his innocence.
The authority to conduct an internal investigation is vested in a specially created commission. The commission for investigation is created by an order for the organization, which contains the reasons for the internal investigation, information about the members of the commission (F. I. O., position, list of powers), terms of validity, etc. The commission should include employees who are not personally interested in the results of the investigation, but who have sufficient competence to understand the circumstances of the offense.
The commission within the established time period is obliged, if necessary, to conduct an inventory, as well as request and prepare documentation that will serve as confirmation of the guilt of the employee. Any action taken during an official investigation should be recorded in the relevant acts, official or memoranda, certificates, protocols. In addition, the duty of the commission is to obtain an explanation from the employee himself.
Explanation or refusal of an employee’s explanation
It is recommended to draw up a demand for an employee to provide an explanation of the misconduct with an official document on the organization and hand it over to the employee for signature. In special cases, for example, if an employee refuses to put a signature confirming receipt of a claim, an act of refusal should be drawn up. In this case, the employee can not only submit the request in person, but also send it by mail, registered mail with notification.
According to the general procedure provided for the imposition of a disciplinary sanction, an employee must be given two working days to provide explanations. If after this period no explanations are received, the corresponding act (on the failure to provide or on the refusal of the employee to give explanations) must be drawn up.
Commission Results
The result of the work of the commission should be an act on the results of the investigation. The document must indicate:
• The end date of the internal investigation.
• Information about the members of the commission.
• Information about the employee involved in the internal investigation.
• A statement of the circumstances that gave rise to the official investigation, taking into account the degree of guilt and the gravity of the guilt.
• Evidence of the guilty actions of the employee (or evidence of innocence) in the form of a list with appendices.
• Signatures of members of the commission.
Dismissal for actions not related to the exercise of labor functions
Termination of labor relations with an employee, in the case when the reason for the loss of confidence were actions that are not related to the performance of his job duties, does not apply to disciplinary action by law. For this reason, the procedure for termination of employment has been greatly simplified: no internal investigation is required, and the time period within which a decision on dismissal must be made is up to one year from the moment the employer was informed of the employee’s misconduct. An argument for dismissal may be a copy of a document confirming the fact that the employee committed the intentional guilty actions, for example, a copy of a court decision.
At the same time, termination of labor relations should also be made in accordance with the procedure established by the labor law
Orders
If, as a result of the conclusions of the commission, a decision was made to dismiss
Dismissal due to loss of confidence is made by issuing two orders:
• Order for disciplinary action. This document contains not only mandatory information about the employee (F. I. O., position, etc.), but also information about the misconduct committed, indications of the provisions of collective and labor contracts and other regulatory documents of the organization violated as a result of the guilty actions of the employee, circumstances and degree of guilt. No later than three days, the employee should be familiarized with the order signed. In case of refusal of the employee to sign, an act of refusal is drawn up, which is certified by the signatures of the commission members.
• Order of dismissal. Published with reference to the details of the order of disciplinary action. The reason for dismissal is indicated in full accordance with paragraph 7 of Article 81 of the Labor Code.
Filling out a work book
The employer's record is entered in the work book with the same wording of the reason for dismissal as in the order. Example:
On the day of dismissal of the employee, he is issued his registered work book.
Employee benefits
Despite the fact that it is often a matter of material damage actually caused, this fact does not relieve the employer of the obligation to make all due payments. On the day of termination of employment, the employee must receive the final payroll, as well as all bonus and compensation allowances. Compensation for damage caused by a former employee, the employer, of course, has the right to demand only through the court.