Termination of an employment contract at the initiative of the employer. Labor legislation establishes a limited list of grounds upon which an employer can dismiss an employee

Most of the working relationships between an employer and an employee end at the request of the latter, and there are many reasons for this: due to study, upon retirement, due to a change of place of residence, etc. At the same time, the corresponding statement is not always written voluntarily; the participants in the relationship simply come to an agreement on this particular option for completing the cooperation. As a rule, it is not particularly beneficial for employees to have a record in their employment records stating that there was a termination of the employment contract at the initiative of the employer.

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Lawful actions of the employer

The employer and employee are parties to an employment agreement, that is, a contract between participants in labor relations to establish these same relations.

The right of the organization’s management to draw up, amend and terminate a labor contract in the manner and on the basis of the conditions and terms prescribed in the Russian Labor Code is secured by Article 22 of this Code.

In accordance with it, the employee has the same right.

This means that it is impossible to kick an employee out of work on the initiative of the company administration, because For this purpose, there must be legitimate reasons why the contract can be terminated at the initiative of the employer. Compliance with the rules for terminating an employment contract at the request of the employer is another necessary condition for the legality of such a procedure. All cases contrary to this order are a violation of the law, and there are many examples of this in judicial practice.

Conditions under which the employer can terminate the contract

An employer cannot terminate an employment relationship with an employee without a valid reason specified in Article 81 of the Labor Code. The only exception is a fixed-term employment contract (concluded during the maternity leave of the main employee, for seasonal work, or limited to a specific date). Such an agreement can be terminated after the conditions specified in it have occurred, regardless of how well the temporary worker performed his duties.

The list of reasons for termination of an employment contract at the initiative of the employer can be divided into 3 groups.

Reasons associated with employee misconduct

Some facts

According to the law (Article 140 of the Labor Code of the Russian Federation), the organization must make a full financial settlement with the employee and pay all necessary compensation and wages. In some situations, a former employee is entitled to additional payments, for example, severance pay. And in case of dismissal due to reduction or liquidation, the company must pay this compensation in the amount provided for by the collective agreement, but not less than monthly earnings.

• An employee, after being brought to disciplinary liability, continues to fail to fulfill his duties at work (clause 5 of Article 81);
• The employee grossly violated his duties once, for example, committed absenteeism, showed up at work drunk, stole property from the employer (clause 6);
• The employee committed an administrative offense or crime at his place of work, which resulted in damage or destruction of someone else’s property, including the employer’s (clause 7). To dismiss on this basis, the employer must have documents confirming the employee’s guilt: a court verdict or an administrative resolution of the competent authority;
• The employer has lost confidence in the employee who is responsible for the material assets of the organization as a result of his committing an illegal act (clause 8);
• A kindergarten teacher, teacher or other person whose activities are related to raising children has committed an immoral offense (clause 9);
• The head of the organization or its structural unit committed any actions that caused material damage (clause 10);
• The employee deceived the employer when applying for a job and provided incorrect information about himself (clause 11).

Reasons associated with changes in the organization's work

• The organization in which the person works is liquidated (clause 1 of Article 81);
• Reduction of staff (clause 2);
• The owner of the organization has changed. This basis for dismissal is only suitable for the manager, his deputies and the chief accountant (clause 4).

Let's find out who signs the contract with the general director of the LLC here.

Reasons related to a person’s personal qualities

• The person is not suitable for the position held or cannot perform job duties due to health status (a medical certificate is attached as evidence) or lack of qualifications (certification protocol) (clause 3);
• An employee whose profession requires him to work with state secrets is denied access to it (clause 12).

The table shows categories of workers who are not subject to dismissal for specified reasons, or the conditions of dismissal apply to them with restrictions.

Other reasons

Clause 14 of Article 81 of the Labor Code says that an employee can be dismissed at the initiative of the employer and for other reasons provided for by the Labor Code or other regulations:

• Failure to pass the preliminary test (Article 71 of the Labor Code);
• Removal of the head of an organization entering bankruptcy proceedings (Article 278 of the Labor Code);
• Dismissal of the head of an organization by decision of the owner of the property or the authorized body of the legal entity (Article 278 of the Labor Code);
• Failure by a teacher to comply with the charter of an educational institution twice in a year (Article 336 of the Labor Code);
• Use of mental or physical violence by a teacher against a student (Article 336 of the Labor Code).

Additional reasons for dismissal from work under an employment contract may be prescribed in laws regulating the activities of the police, security services, emergency services, etc.

The video discusses the features of termination of an employment contract at the initiative of the employer

Termination of a fixed-term employment contract at the initiative of the employer

If a contract was issued with a limited period of validity, i.e. fixed-term employment contract, the termination of the relationship occurs according to the date specified in this paper.

Moreover, if the company closes before the expiration of the fixed-term contract, or a reduction in a specific position occurs, as well as when the employee has grossly violated the work schedule or is unable to adequately perform his work duties, the employer has the right to terminate the fixed-term contract ahead of schedule, i.e. ahead of schedule on the grounds prescribed in Article 81 of the Labor Code of the Russian Federation.

For some categories of municipal employees who cannot be dismissed for the reasons described above, the legislation is fully in force. They are dismissed only in accordance with the employment contract, that is, during the period specified in this document. Early termination will not be possible.

In what cases is it permissible to dismiss an employee under this article?

Termination of an employment contract at the will of the employer is possible only when the official has compelling reasons to carry out this procedure, recorded in writing. If the dismissal of an employee or an entire group of workers is carried out as a result of the liquidation of an enterprise, the employer is obliged to notify his subordinates about this event at least two months before its occurrence. In addition, all persons who lose their jobs must receive certain financial compensation from the employer - severance pay.

If the employer wishes to avoid completing a large amount of documentation accompanying the contract cancellation procedure, it is permissible to offer the employee a way to terminate the contract by agreement of the parties. As a rule, violators willingly agree to this option of ending cooperation in order to avoid entering an unpleasant circumstance into the work book, which became the basis for dismissal under the article.

Cases when termination of an employment contract at the initiative of the employer is not allowed

Employees who cannot be dismissed solely on the basis of the initiative of the head of the organization and without agreement with higher authorities include:

• minors;
• pregnant workers;
• women with children under three years of age, mothers raising children alone, or persons raising a person under fourteen years of age or persons under eighteen years of age with a disability without a mother;
• heads and deputies of trade union bodies who are not exempt from their main activities;
• people in public service (civil servants).

Why can a manager be fired?

To terminate an employment contract with the manager or his deputy, Art. 81 of the Labor Code of the Russian Federation puts forward additional grounds:

• Change of owner of the organization’s property (applies to the chief accountant). The new owner has the right to dismiss employees from these positions within 3 months from the moment the rights to the property arise.
• Making an unreasonable decision that resulted in damage to property (also in relation to the chief accountant).
• A one-time gross violation of duties resulting in damage to property or health of employees.

Termination procedure

If the employer decides to dismiss one of the employees, and there are good reasons for this, he should strictly follow the rules for carrying out such a procedure and guarantees upon termination of cooperation. Otherwise, the employee can appeal to the court, challenge the dismissal and return to the workplace.

Before dismissal at the initiative of the employer, you must:

• agree on the terms of the procedure;
• find out whether the employee is included in the category of those who cannot be fired;
• carry out calculations (this is not done in all situations).

At some points, the opinion of the trade union is taken into account:

• during staff reductions;
• upon dismissal of a civil servant (the civil service dictates certain conditions);
• during the probationary period;
• if the employee works in a position for which he does not correspond;
• if there is a constant violation of discipline.

You cannot fire:

• one who is sick;
• is on vacation;
• a woman expecting a child;
• employees with small children;
• those whose dependents are children under fourteen years of age.

Important! The only exception is dismissal during liquidation of the organization. The rules described above do not apply if the company or individual entrepreneur completely terminates its activities.

Dismissal of employees must occur only in accordance with the law. The employer must comply with all conditions and terms. Personnel must receive a notification of upcoming events against signature, and also familiarize themselves with the relevant order (dismissal notice). It is also important to comply with the terms of the law regarding payments due to dismissed persons - on the last day of work, the employer is obliged to give the employee the required payments (severance pay, vacation pay) and documents.

Should a person work off when fired?

The law determines whether work is carried out upon dismissal of one's own free will. According to the provisions of the Labor Code, the employer must have the opportunity to hire a new employee for a vacant position. A certain period is allocated for this – 14 days. During this period, personnel selection is carried out, but also the employee who wrote a letter of resignation has the right to change his mind and retain his position.

In addition, the law allows early termination of work in cases where the employer allows the employee not to work. However, there are exceptions to the rules. In situations where a resigned person cannot work for 2 weeks, he needs to provide evidence and notify the employer about this.

Read also: How to get a BTI certificate from the MFC

Features of dismissal for reasons not related to employee misconduct

In some cases, the employer is forced to dissolve the team in whole or in part due to unfavorable external circumstances.

Liquidation of a company by decision of the owners or an arbitration court in a bankruptcy case means a complete stop to its activities. In such conditions, the entire staff actually has no jobs, and the employer has no choice but to terminate the employment relationship with the people working for him.

Reduction is most often associated with a drop in turnover at the employer and his desire to optimize fixed costs. In this case, they can reduce both the total number of similar positions (reduction in strength) and eliminate certain positions (reduction in staff).

In both cases, the procedure for dismissing an employee at the initiative of the employer will be similar:

1. First, an order is issued to reduce staff or a decision to liquidate the company.
2. All employees subject to dismissal are notified of this in writing at least 2 months before the date of separation. They continue to work throughout this period. By agreement with the employer, workers may not wait until the end of this period, but will quit immediately, receiving average earnings for the time remaining before the date of dismissal.

Important

In the event of a layoff, the employer analyzes the number of personnel to determine the presence of workers who have a preferential right to remain at work. If such people are identified, they are not subject to dismissal. In addition, laid-off employees are offered the remaining available vacancies (only if they are available) in which they could continue to work. If the employee agrees to the transfer, dismissal is not carried out.

3. At the end of the warning period, a dismissal order is issued, all documents are drawn up and a settlement is issued.

In addition to standard accruals, employees are paid severance pay in the amount of average monthly earnings . In addition, if they register with the employment service as unemployed within 2 weeks after separation and cannot find a job in the 2nd and 3rd months, they also retain the average monthly benefit from the employer for this time. However, to receive money for the 3rd month after dismissal, a decision from the employment service is required.

Important

From August 13, 2021, amendments were made to Art. 178 of the Labor Code of the Russian Federation: it is now allowed, in the event of liquidation of a company, to immediately pay the average salary for the 2nd and 3rd month to the dismissed person, since subsequently, due to the closure of the company, there will be no one to receive it from. At the same time, the company has no right not to pay the specified benefit for the 2nd and 3rd months due to the completion of the liquidation procedure before the end of this period.

Parting with a manager due to a change in the owner of the company is classified as non-standard cases - when formally dismissal is possible by decision of the employer without explanation . As a rule, in such a situation, a conversation is held with the manager, after which an order is issued and the dismissal procedure is completed. According to Art. 181 of the Labor Code of the Russian Federation, upon separation on the specified basis, the director is paid severance pay in the amount of at least 3 average monthly earnings.

Payments and compensation due to the dismissed person

On the last working day, the employer must pay the dismissed employee in full. The latter must be given the following: salary with due allowances, bonuses, compensation amount for unspent annual leave (if any), severance pay.

Employees are not entitled to compensation or severance pay upon dismissal due to disciplinary action or guilty actions (inaction) of the dismissed person (Labor Code of the Russian Federation, Article 181.1). Please note that such violations must be documented.

In other cases, such payments are provided and issued to the employee on the day of final payment in accordance with Art. 178 of the Labor Code of the Russian Federation and the collective agreement in force in the organization.

A collective or labor agreement may provide for other situations and amounts of benefits and compensation upon dismissal.

Limiting Factors

The certain status of certain categories imposes restrictions on issues of termination of relations, not allowing parity at the legislative level. Dismissal of a pregnant woman is not allowed for any of the reasons except:

• complete liquidation of a legal or natural person with exclusion from the register of business entities;
• a previously concluded fixed-term employment agreement to replace the duties of a person who has returned early from maternity leave in case of refusal of the offered vacancies;
• absolute professional incompetence, confirmed by a medical certificate.

Dismissal is allowed due to liquidation, evidence of guilt in embezzlement or theft, official mistrust, gross violation of labor discipline in the following categories:

• mothers of many children and single parents, guardians or trustees raising children under 14 years of age;
• working women or on maternity leave before reaching the three-year age mark;
• having disabled children under 18 years of age.

The dismissal of minor citizens requires written consent in each specific case from the guardianship and trusteeship authorities. Before terminating a contract with temporarily absent persons who are on vacation of all types or on sick leave, regardless of the grounds, it is necessary to wait until they return to the workplace, with the exception of citizens with whom a fixed-term employment contract has been concluded that is close to completion.