Cash payments
With the termination of his labor function, the employee loses the right to receive remuneration.
Let's consider what payments to a dismissed employee are required by law:
- Salary. Paid in full for the entire period worked.
- Compensation for unused vacation (if any).
- Severance pay is payable in the amount of:
- earnings for 2 weeks: upon reinstatement of a former employee at work, upon conscription for military service, upon refusal to transfer to another location for health reasons, in connection with the relocation of the company;
- average salary for 1 month: in cases of layoffs, liquidation of the company, violation of the law when concluding trade agreements without the employee’s fault.
Note to accountants: the tax service informs that dismissed employees must also be included in the third section in the calculation of insurance premiums, along with all insured persons for whom payments were accrued for the reporting period.
How can you be fired for reasons beyond the control of the parties to the contract?
Due to the following circumstances:
- refusal to transfer to a new position on the basis of a medical report;
- reluctance to move to another place;
- reinstatement of the specialist who previously held this position;
- deterioration of health, making it impossible to further perform official duties;
- disagreement of a subordinate caused by the re-conclusion of a contract with a significant change in conditions.
The procedure for removal from a position in all these situations is standard, the only difference is that the person is paid an additional benefit in the amount of the average salary for 2 weeks.
How to fire an unwanted employee
Often, an employer needs to fire an employee, although there are no reasons provided for by the Labor Code of the Russian Federation. For example: the administration has a more highly qualified specialist in mind; the complex nature of the employee negatively affects the work of the entire team; the employee does not inspire confidence in himself, although there is no real evidence of his unreliability, etc.
Of course, the easiest way is to call such an employee to your office and, notifying that his services are not needed, in a decisive tone, demand that he write a statement “of his own free will.” Most often, the employee agrees. This is due to various reasons: ignorance of their rights, lack of confidence in a favorable outcome in the event of a conflict with the administration, etc.
It often happens, however, that an undesirable employee will seriously upset his employer's nerves before the latter manages to part with him. Legal commentary on the legal basis for dismissal for various reasons will help the employer avoid unpleasant situations.
At your own request
Problems often arise with how to legally fire an unwanted employee if he does not want it.
Applying on your own can be a real challenge. Forcing a person to sign such a statement is a quick, but completely illegal method of solving the problem. After signing this document, he can contact a special inspection and sue the company for:
- Various types of compensation.
- Reinstatement at work.
In this case, the company will be forced to pay a huge fine for violating labor laws - up to fifty thousand rubles.
The employer must act legally
Labor legislation provides employees with a large number of guarantees and benefits. Even in matters of dismissal, employees have greater rights than employers. However, this does not mean that employers are completely powerless. If there are grounds, and if all legal requirements are met, an employee can be fired without his desire.
All issues related to dismissal in 2021 are regulated by Chapter 13 of the Labor Code of the Russian Federation. In particular, all prerequisites for termination of employment relations at the initiative of the employer are contained in Art. 81 Labor Code of the Russian Federation.
According to the Labor Code of the Russian Federation, an employer cannot work with a pregnant employee, even if she has committed a disciplinary offense.
If he refuses, a document is drawn up recording the circumstances of his absence from work. It is signed by two witnesses. The truant's autograph is also desirable.
The employee must be offered all vacancies available to the employer in a given locality that meet the specified conditions (vacancies in another locality are offered if this is provided for in the labor or collective agreement). The proposal to transfer the employee should be familiarized with signature.
When hired, each employee must sign a job description. But the employer has the right to change it over time by warning the employee 2 months in advance. For example, enter individual work criteria: processing a certain number of documents, fulfilling a sales plan, etc.
In the event of a reduction in staff or numbers, as well as liquidation of an organization, notice of the upcoming dismissal must be given to the employee at least two months in advance.
The employer’s task is to notify employees about the reasons and changes in a timely manner, namely in writing and no later than two months in advance.
Dismissing an employee without his consent limits the actions of the manager: desire alone is not enough.
If an employee was absent from work for a full day or more than 4 hours without justifiable reasons, the employer has the right to dismiss him for absenteeism (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation).
- dismissal at the request of the employee and termination of the agreement without timely warning to management;
- unauthorized use of time off;
- going on vacation not agreed upon with management.
So, reflect the employee’s absence from work in the time sheet, draw up a memo and an act. These documents will confirm that the employee committed misconduct and you justifiably fired him.
The most important thing here is that everything is clearly spelled out in the employment contract and that you discuss everything in advance before signing it.
There is no need to invent or contrive! The Labor Code already spells out legal methods of dismissal at the initiative of the employer. If the employee does not want to transfer (a written refusal must be received) or there are no suitable vacancies (the employee must be notified of this, and the absence of vacancies must be confirmed by the staffing table), then the employment contract can be terminated.
Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)
It is used in cases where the employer cannot find a suitable article in the Labor Code of the Russian Federation.
Most often, the reasons for such dismissals are discussed face-to-face, but some cases become public knowledge. Natalia Plastinina, head of the legal support sector:
The grounds for separation are not bad, but in most cases they require additional material costs from the employer. Despite the absence in Art. 178 of the Labor Code of the Russian Federation, instructions for the payment of severance pay upon dismissal by agreement of the parties, many years of practice in resolving difficult situations in labor relations have shown that the employee agrees to such a “soft, smooth, but not included in his plans” separation only upon receipt of a certain bonus - compensation for termination of the employment contract. Since there is no obligation to compensate an employee upon dismissal on the grounds in question in the Labor Code of the Russian Federation, the amount of such compensation is determined only by agreement of the parties. In fact, the parties negotiate the amount of this compensation at the level of 2-3 salaries, taking as a guide the amount of severance pay in case of staff reduction. However, in special cases (dismissal of a manager at any level), this amount can be increased or, conversely, reduced (for example, when dismissing an unreliable employee who cannot be “caught” on other grounds for dismissal). Sometimes the parties agree to terminate the employment contract without compensation at all.
