It would seem that what could be simpler than voluntary dismissal? The employee submits an application, HR officers formalize the dismissal. However, even here sometimes questions arise. Let's figure it out.
On the one hand, HR departments do everything possible to reduce staff turnover and use various tools to minimize the number of dismissals among those employees who are suitable for the organization. On the other hand, when it becomes clear that the employee has not “settled in,” the actions of HR officers become diametrically opposed - the employee is made to understand that it is time for him to leave the organization. In this case, it is especially important to formalize the dismissal in accordance with the law and avoid mistakes.
Let's look at how to properly fire an employee at his own request.
Dismissal due to health reasons
This is possible in two cases. The first is that the medical commission recognized the employee as completely disabled (clause 5, part 1, article of the Labor Code of the Russian Federation). The basis for dismissal will be a medical document that states a 100% loss of the ability to work. An order to terminate the contract must be issued immediately after the employee submits a medical report. The day of dismissal will be the last day on which the employee actually worked (Article 84.1 of the Labor Code of the Russian Federation).
The second case is that, in accordance with a medical report, the employee cannot perform his current job (a transfer to another is required), but he refused to change jobs, or the company does not have suitable vacancies (Clause 8, Part 1, Article of the Labor Code of the Russian Federation). There is a nuance here. Dismissal on this basis is possible if, based on a medical report, the employee needs to be transferred for a period of more than four months. If the rehabilitation (habilitation) program is set for a shorter period, and there is no possibility of transfer, then the employee should simply be suspended from work (Part 1 of Art., Part 2 of Article 212 of the Labor Code of the Russian Federation). But you can't fire him.
IMPORTANT
The four-month rule does not apply to the head of the organization, his deputies, or the chief accountant. They can be dismissed “for health reasons” even if, according to a medical report, the transfer is required for a period of less than four months (Part 4 of Article of the Labor Code of the Russian Federation).
After the employee has brought a medical report, from which it follows that he cannot perform current duties, he should be suspended from work (Part 1 of Article of the Labor Code of the Russian Federation). Next, you need to offer another job that is suitable for medical reasons, or notify about its absence. The Code does not establish the period and procedure for such notification. It is better to do this immediately and in writing. The dismissal order must be issued on the day the employee became familiar with the notice of the absence of a suitable vacancy, or an act of refusal to familiarize was drawn up. If there is such a job, but the employee does not want to transfer, the dismissal order should be issued on the day a written refusal to transfer is received.
Dismissal for inadequacy of the position held
Termination of the contract due to inconsistency with the position held or the work performed (clause 3, part 1, article of the Labor Code of the Russian Federation) is possible if two conditions are met. First, the employee’s non-compliance is confirmed by a conclusion issued based on the results of certification. Secondly, the employee refused to be transferred to a job suitable for his health (including a lower-ranking and lower-paid one), or the company does not have such a vacancy.
But even if these conditions are met, it will not be possible to fire pregnant women and women with a child under 3 years of age “for unsuitability.” Also, single mothers raising a child under the age of 14 (a disabled child under the age of 18), and other persons raising such children without a mother, are not subject to dismissal on this basis. And equally, they are the sole breadwinners of a disabled child under the age of 18 or a child under the age of three in a family where there are three or more young children, if the second parent (legal representative) does not work (Article 261 of the Labor Code of the Russian Federation). The guarantees mentioned above for members of election commissions also apply (Article Law No. 67-FZ).
It is also impossible to part ways “due to inconsistency” with young employees who do not have the necessary production experience due to their short work experience. This is reported in the report of Rostrud. And it is permissible to dismiss on this basis those who are on vacation or sick leave only at the end of the relevant period (subject to the conditions listed above).
REFERENCE
Non-budgetary sector organizations, as a rule, independently develop and establish the procedure for conducting employee certification (Part 2 of Article of the Labor Code of the Russian Federation). It is also possible to send employees for an independent assessment of qualifications (letter of the Ministry of Labor dated September 18, 2019 No. 14-3/B-742).
The Labor Code does not establish a deadline for the dismissal of an employee who has not passed the certification. But it is in the employer’s interests to do this faster - on the day when the employee refused to be transferred to another job (has read the notice about the absence of a suitable vacancy).
Application rules
The scheme for writing a resignation letter at your own request is simple, but you should pay attention to the last day of work. There is a nuance here:
- if the employee puts the preposition “with” before the date, the last working day is the previous date;
- if the citizen wrote without this pretext, the date of departure or termination of work is the one indicated by the employee.
To avoid misunderstandings, ask employees to use the wording “The last working day, please consider... (date)” in the document.
The employee has the right to agree on the date of the last day of work with the manager if it is necessary to leave the company ahead of schedule. If the director does not object, this information is recorded in the petition.
IMPORTANT!
If you do not indicate the last day of work, the manager will use the general rules and terminate the contract with the employee after two weeks.
Read more: Procedure for voluntary dismissal
Dismissal for loss of confidence
This is a special basis for terminating a contract with an employee who directly services monetary or commodity assets, that is, receives, stores, transports, distributes them (clause 7, part 1, article of the Labor Code of the Russian Federation, clause 45 of the resolution of the Plenum of the Armed Forces of the Russian Federation No. 2) . At the same time, the corresponding responsibilities must be documented - in an employment contract, job description, agreement on full financial responsibility, etc.
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A loss of trust can be indicated by guilty actions (cheating, weighing, fraud, etc.) committed by an employee both at the place of work and outside of it. It does not matter whether these offenses were related to the performance of labor duties or not (clauses 45 and 47 of the resolution of the Plenum of the RF Armed Forces No. 2). However, the employer must have documents that confirm not only the action itself, but also the employee’s guilt. These documents must be referred to in the dismissal order.
The specific procedure for dismissal depends on the circumstances of the case. So, if these actions were committed while performing job duties, then dismissal will be a measure of punishment for a disciplinary offense. This means that the employer must comply with the procedure and deadlines for bringing to responsibility. It is necessary to record the misconduct itself, obtain an explanation, assess the validity of the reason for the misconduct and make a decision taking into account all the circumstances of the case, the personality of the employee and his attitude to work (Articles 192, 193 of the Labor Code of the Russian Federation).
In other cases, dismissal can be carried out without additional procedures - on the basis of documents confirming the employee’s guilt. But here, too, there is a time frame: an order for dismissal for actions that were committed outside the place of work or at the place of work, but not in connection with the performance of job duties, can be issued no later than one year from the day the offense was discovered (clause 47 of the resolution Plenum of the Armed Forces of the Russian Federation No. 2).
Reduction in the number of employees
Dismissal “due to reduction” (Clause 2, Part 1, Article of the Labor Code of the Russian Federation) is currently used quite often. As a rule, the reason for downsizing is a reduction in the volume of work (optimization of the number of employees), and for staff reduction - a change in the type of activity (dismissal of all employees who held the relevant positions). There are no fundamental differences in the procedures for dismissal on these grounds.
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The decision on the need for layoffs is made exclusively by the employer (Part 1 of Article of the Labor Code of the Russian Federation, Clause 10 of Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, determination of the Constitutional Court of the Russian Federation dated July 15, 2008 No. 413-O-O). However, he must be ready to justify the feasibility of this measure (determination of the RF Armed Forces dated December 3, 2007 No. 19-B07-34).
Under no circumstances can you be fired “due to reduction” (Article 261 of the Labor Code of the Russian Federation, Article of the Federal Law of June 12, 2002 No. 67-FZ):
- pregnant women;
- women with a child under three years of age;
- single mothers raising a disabled child under the age of 18 or a child under the age of 14;
- workers raising a motherless child under 14 years of age (disabled child under 18 years of age);
- the sole breadwinners of a disabled child under the age of 18 or a child under the age of three in a family where there are three or more young children, if the second parent (legal representative) does not work;
- an employee who is a voting member of the election commission - until the end of his term of office;
- an employee who is a member of the election commission with the right to an advisory vote - during the election campaign.
Next, you need to determine which of the remaining employees has a priority right to keep their jobs. According to Article 179 of the Labor Code of the Russian Federation, the employer is obliged to retain those who have higher labor productivity and qualifications. And with equal productivity and qualifications, the following persons have protection from reduction:
- family workers with at least two dependents;
- the only breadwinners in the family;
- employees who received work-related injuries and occupational diseases during work;
- employees aimed at improving their skills without interruption from work;
- disabled people of the Second World War and combat operations to defend the Fatherland;
- other employees who are granted such a right by the collective agreement.
Even with a small staff, downsizing involves significant paperwork. First, you will have to determine those who cannot be fired on this basis at all (and for this, you may need to request additional documents from employees). Then, collect data on the productivity and qualifications of other employees. Analyze this information and distribute employees to the appropriate levels. Within each level, select groups of beneficiaries. Then identify those who will remain working and those who will have to say goodbye.
The latter must be given notice of the upcoming dismissal “due to reduction”. The date of termination of the contract indicated therein should not be earlier than 2 months. The notification must also be sent to the employment service authorities.
IMPORTANT
Data about each laid-off employee is transmitted to the employment service, in particular, about his position, profession, specialty and qualification requirements (clause 2 of article 25 of the Law of the Russian Federation of April 19, 1991 No. 1032-1). In 2021, employers were required to post this information in the all-Russian vacancy database “Work in Russia” (clauses 1 and 4 of Decree of the Government of the Russian Federation dated April 12, 2020 No. 486). It is expected that this duty will be extended into 2021. For more information about the “Work in Russia” service, see “The transition to electronic personnel documents and the “Work in Russia” service: what employers need to know.”
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All layoffs must be offered available vacant positions - both those corresponding to their specialties and qualifications, as well as lower-ranking or lower-paid ones. The main thing is that they are suitable for the employee due to health reasons, and the place of work is in the same area (the possibility of transfer to another area must be agreed upon in advance in a collective or employment agreement). If new vacancies become available during the two-month notice period, they must be offered to redundancy candidates first. And only then can you replace them with new people.
Although the Labor Code does not require confirmation that laid-off employees have been offered vacancies, it is better to issue notifications and hand them to employees against signature. And if you refuse to sign, draw up an act.
ATTENTION
Employees who are on sick leave or on vacation can also be fired “due to reduction.” But only after the period of rest or temporary disability ends.
Also see “Payments when laying off an employee in 2021” and “How, according to the new rules, to pay compensation when reducing staff or liquidating a company.”
How to properly fire an employee
The grounds for termination of an employment contract are provided for in the Labor Code.
One of them is the statement of the employee himself. Also, the initiator of dismissal can be the employer (organization or individual entrepreneur), including in a situation where the employee has committed one or another violation or misconduct. In addition, termination of the employment relationship is possible regardless of the wishes of the parties to the contract - for example, if its validity period expires. Prepare a termination agreement for free using a ready-made template
For each reason, there is a list of steps that the employer must take to ensure that separation from the employee is legal. Let's look at the most common reasons for layoffs.
