Fired for non-fulfilment of duties. The practice of successful reinstatement of those dismissed for repeated violations of discipline. Punishment for non-fulfilment of labor duties

Dismissing an employee for repeated non-performance job duties(clause 5, part 1, article 81 of the Labor Code of the Russian Federation): approximate step by step procedure

DISMISSAL FOR REPEATED DEFAULT OF LABOR DUTIES:

EXAMPLE STEP-BY-STEP PROCEDURE

If the employee refuses to read the termination order employment contract in this case, it is necessary to draw up an act (part 6 of article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration log.

10. Registration of a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).

11. Settlement with the employee.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).

After the employer becomes aware of the employee's failure to perform labor duties, it will be necessary to establish the fact of this violation. In particular, whether unfulfilled duties were included in the employment contract, job description and other local regulations. Also, the employer must prove why an extreme disciplinary sanction will be applied for the specified violation, and not another, easier one.

Note: it is possible to dismiss an employee on the specified basis only if at the time of the commission of the specified misconduct, an outstanding disciplinary sanction hangs on him. If the employee does not have a disciplinary sanction, then the dismissal on this basis will be considered illegal.

3. Obtaining explanations from the employee on the fact of violation (non-fulfillment) of labor duties.

After the employer establishes the fact of violation of labor duties, he will have to ask the employee for an explanation of the reasons for committing this misconduct. An explanation by the employee is drawn up in writing in the form of an explanatory note.

Sample explanatory note of an employee regarding the reasons for the violation of labor duties (download sample).

4. Drawing up an act on violation of labor discipline

After the fact and reasons for the violation by the employee of his official duties are established, it is necessary to draw up an act on a disciplinary offense. The document is drawn up in the presence of two witnesses.

Sample act on disciplinary offense (download sample).

5. Preparation of an order to terminate an employment contract with an employee due to his repeated failure to fulfill his labor duties

Dismissal, in accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, is a disciplinary measure, in connection with which the issuance of an order to terminate an employment contract on the specified basis is subject to appropriate requirements regarding the time frame for its preparation. In accordance with Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction against an employee must be applied no later than a month from the date of its detection, while the specified period does not include the time of illness and vacation of the employee. Maximum term, during which the order must be drawn up, is 6 months.

The day when the misconduct was discovered is the day when the head of the organization found out about it, regardless of whether he is empowered to impose a disciplinary sanction.

On the basis of the dismissal order, an entry is made in work book and the employee is calculated. The order is drawn up according to the unified form T-8.

Note: the employer has the right to independently develop the form of the order, taking into account the requirements imposed by law. The period of storage of this document is 75 years.

Form and sample of drawing up an order to terminate an employment contract

Form of order to terminate the employment contract

A sample order to terminate an employment contract with an employee due to his repeated failure to fulfill his labor duties without good reason (download sample).

5. Registration of the dismissal order in the relevant journal

The drafted and signed order to terminate the employment contract is subject to registration in the register of orders for personnel. This journal registers orders for all employees of the organization (IE), in particular, for admission, transfer, bonuses, business trips, dismissal, etc.

note that orders for the first persons of the organization (head, chief accountant and other persons, information about which is reflected in the charter) are recorded in another journal - the journal for registering orders for core activities.

The specified document does not have a strictly established form and is developed by the employer independently.

The period of storage of the register of orders for personnel - 75 years old.

Journal of registration of orders for personnel (download the journal).

6. Familiarization of the employee with the dismissal order

With the order to terminate the employment contract, the employee must be familiarized against signature no later than three days from the date of its publication, not counting the time the employee was absent from work. In the event that he evades or refuses to familiarize and sign, a corresponding note is made in the order, or an act is drawn up on refusal to familiarize with the order. The employee has the right to appeal the disciplinary sanction to the state labor inspectorate or the permit commission labor disputes.

7. Drawing up a note-calculation

A note-calculation is drawn up after the issuance of an order for dismissal for the final settlement with the employee for wages and other payments. The document is filled out by an employee of the personnel department, and the calculation of payments is made directly by the accountant.

Form, sample and procedure for filling out a note-calculation

Form of note-calculation

The note-calculation consists of the front side, filled in by an employee of the personnel department and the back side, filled out by an accountant. The note is drawn up according to the unified form T-61 (download the form).

How to fill out a note-calculation

On the front side the following mandatory information must be provided:

• The name of the employer.
• OKPO code.
• Document number and date of issue.
• Number and date of the employment contract.
• Full name, name structural unit and position of the employee.
• The date of termination of the employment contract.
• Grounds for dismissal.
• Date and number of the order of dismissal.
• The number of unused vacation days, as well as days used in advance.
• The date of preparation of the document and the signature of the employee of the personnel department.

On the reverse side the accountant calculates the vacation and other payments provided to the employee.

When writing a note, keep the following in mind:

• In column 2 it is necessary to indicate the 12 months preceding the dismissal, and in column 1 the year (s) corresponding to them.
• In column 3 reflects the total amount paid to the employee in the corresponding month.

In column 4 indicates the total number of calendar days in the reporting period. If an employee has worked a full month, the calculation uses the average monthly number of days worked - 29.3.

Note: if the employee worked fewer days, the calculation is made according to the formula: (29.3: number of calendar days in a month) x number of days worked.

• In column 5 must be filled in only with the summarized accounting of the employee's working time.
• In column 6 it is necessary to reflect the average earnings of the employee (hourly or daily). Calculation of average earnings is made according to the formula: Amount of payments for the year (line Total): Number of calendar days (column 4 or 5).
• In column 7 you must specify the number of vacation days used in advance.
• In column 8 reflects the number of unused vacation days.
• In column 9 calculation of the amount of payment for unused vacation days.

In the table "Calculation of payments" the final calculation is made according to the amount issued to the employee for calculation:

• In column 10 the amount of the accrued salary is indicated.
• In column 11 the amount of vacation pay calculated in column 9 is reflected.
• In column 12 other accruals, if any, are indicated.
• In column 13 the sum of all accruals is reflected (the sum of columns 10, 11 and 12).
• In column 14 the amount of personal income tax calculated from the amount of payments on line 13 is indicated.
• In column 15 the amount of other deductions from the salary of the employee, if any, is reflected.
• In column 16 the total amount of deductions from the employee is indicated (the amount of columns 14 and 15).
• In column 17 reflects the amount of the organization's debt to the employee.
• In column 18 the debt of the employee to the organization, if any, is indicated.
• In column 19 indicates the total amount of funds payable to the employee, less any deductions.

A sample of filling out a note-calculation in the form of T-61

A sample of filling out a note-calculation (download the form).

8. Entering an entry on the termination of the contract in the work book and personal card of the employee

After the order is issued and the employment contract is terminated, it is necessary to make an appropriate note in the employee's personal card and work book.

A sample of entering information about dismissal due to repeated non-fulfillment by an employee without good reason of labor duties in the employee’s personal card (download sample).

A sample of entering information about dismissal in connection with repeated non-fulfillment by an employee without good reason of labor duties in the work book (download sample).

9. Payment of wages and other benefits and compensations in connection with dismissal

On the day of dismissal of the employee, it is necessary to make a full calculation of the amount of wages, compensation for unused vacation and other payments, according to the note-calculation.

10. Issuance of a certificate of income for the last two years and a work book in the hands of an employee

On the day of dismissal, the employee is issued a work book and a certificate confirming earnings for the last two years for submission to a new place of work.

On the first misconduct of an employee

1. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the labor obligation that he violated (did not fulfill). An employee can be held liable for a violation (non-fulfillment) of some kind of labor obligation established by a clause in the job description, the Internal Labor Regulations, an employment contract, etc. Violating legally not

2. On the fact of the first violation, a memorandum is drawn up by those who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, and other document. In the memorandum, references can be made to documents confirming the violation (an audit report, a document on marriage in work, on imposing a fine on the organization for a violation committed by an employee, etc.)

3. It is necessary to establish the absence of valid reasons for the employee’s disciplinary offense, to make sure that the employee will certainly not be able to justify him in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.

For the first violation, a written explanation (explanatory note) is taken from the employee in order to find out its circumstances and reasons. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the task of the management for a good reason, then the explanatory note is registered, placed in the case and cannot be considered as a basis for applying a disciplinary sanction or taken into account upon dismissal under clause 5 of part .1 st. 81 of the Labor Code of the Russian Federation. If it follows from the explanatory note that the employee has no good reason for committing the misconduct (i.e., there are no supporting documents, other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.

If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up (on refusal to give explanations). It is desirable that the act be certified by three employees.

4. It is necessary to find out whether the deadlines for bringing the employee to disciplinary liability have expired. (A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. The specified time does not include the time of proceedings in a criminal case. Article 193 of the Labor Code of the Russian Federation).

5. An order is issued to apply a disciplinary measure to the employee in the form of a remark or reprimand. See an example of filling out an order to bring to disciplinary responsibility. Remark and reprimand according to Art. 192 of the Labor Code of the Russian Federation are penalties. They are not penalties and are not counted upon dismissal under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation deprivation of a bonus, downgrading of a category, category. It is recommended that the order to apply a disciplinary sanction be motivated, justified, with references to the clauses of the contract or instructions that are violated, to documents that confirm this, for example, memorandums, notifications from the Federal Tax Service of the Russian Federation about the delay in filing a declaration by an accountant if the accountant is dismissed.

6. The order is registered in the Register of orders (instructions). The court may also check this journal in the future if it suspects that the order was prepared “backdating”.

7. The order (instruction) of the employer on the application of a disciplinary sanction is announced to the employee against signature within three working days from the date of its issuance, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with the specified order (instruction) against signature, then an appropriate act of refusal to familiarize himself with the order is drawn up. It is desirable that this act be signed by three employees.

According to the second misconduct of the employee

8. Within 1 year from the moment of imposing a disciplinary sanction on the employee, the first disciplinary offense is followed by a second violation (non-fulfillment) of some kind of labor duty. It is necessary to check whether there is a document according to which the employee is obliged to fulfill the labor obligation that he violated (did not fulfill). An employee can be held liable for a violation (non-fulfillment) of some kind of labor obligation established by a clause in the job description, the Internal Labor Regulations, an employment contract, etc. Violating legally not assigned duty does not count.

9. On the fact of the second violation, a memorandum is drawn up by those who discovered the violation. The note makes references to the violated clauses of the job description, employment contract, and other document. In the memorandum, references can be made to documents confirming the violation (an audit report, a document on marriage in work, on imposing a fine on the organization for a violation committed by an employee, etc.)

10. It is necessary to establish the absence of valid reasons for the second disciplinary offense of the employee, to make sure that the employee will certainly not be able to justify him in the future with his illnesses, illnesses of relatives, weather conditions, accidents, etc.

For the second violation, a written explanation (explanatory note) is taken from the employee in order to find out its causes. If it follows from the explanatory note that the employee, for example, was late for work or did not complete the task of the management for a good reason, then the explanatory note is registered, placed in the case and cannot be considered as a basis for applying a disciplinary sanction or taken into account upon dismissal under clause 5 of part .1 st. 81 of the Labor Code of the Russian Federation. If it follows from the explanatory note that the employee has no good reason for committing the misconduct (i.e., there are no supporting documents, other evidence), then the employee’s explanatory note becomes the basis for issuing an order to apply a disciplinary sanction.

If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up (an act of refusal to give explanations). It is desirable that the act be certified by three employees.

11. It is necessary to find out if the deadlines for bringing the employee to disciplinary responsibility have expired, because. the type of dismissal in question is a disciplinary sanction, therefore, the provisions of Art. 193 of the Labor Code of the Russian Federation. (A disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, he was on vacation, as well as the time required to take into account the opinion of the representative body of employees. A disciplinary sanction cannot be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit - later than two years from the date of its commission. The specified time does not include the time of proceedings in a criminal case. Article 193 of the Labor Code of the Russian Federation).

12. Further, a dismissal order is issued (on the application of a disciplinary sanction in the form of dismissal for the second violation). used unified form T-8, approved by the Decree of the State Statistics Committee of the Russian Federation on 05.01.2004. See an example of filling out an order.

13. The order is registered in the Register of orders (instructions).

14. The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. In the event that the order (instruction) to terminate the employment contract cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, an appropriate entry is made on the order (instruction). This is stated in Art. 84.1 of the Labor Code of the Russian Federation. If the employee refuses to familiarize himself with the order to terminate the employment contract, it is also recommended to act (an act on the refusal to familiarize yourself with the order), which is certified by the signatures of the originator and two employees. This document may be useful in court as additional evidence of the correctness of the employer.

15. After that, a full settlement is made with the employee, monetary compensation is paid for unused vacation, wages and other payments due.

16. Make a record of the termination of the employment contract in the work book and personal card. A resignation letter might look like this:

“Dismissed for repeated failure to perform labor duties without good reason, paragraph 5 of the first part of Article 81 Labor Code Russian Federation". Or: “The employment contract was terminated at the initiative of the employer due to the employee’s repeated failure to fulfill his labor duties without good reason, paragraph 5 of the first part of Article 81 of the Labor Code of the Russian Federation.”

The employee certifies with his signature the entries in the work book and the entry in the personal card about the dismissal.

17. A copy of the work book of the dismissed employee is made for the archive of the enterprise. The work book is issued to the employee on the day of dismissal. Make an entry about this in the Book of accounting for the movement of work books and inserts to them. In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail. Notifications are registered in the Notification Log.

Keep in mind:

In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail. From the date of sending the said notification, the employer is released from liability for the delay in issuing a work book. At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

Electronic database "Package of personnel officer". Consulting company"Strategy"

In accordance with paragraph. 5 h.1 Article. 81 of the Labor Code of the Russian Federation, an employment contract can be terminated by the employer in the event repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction.

This basis is quite often used in practice by many employers, regardless of the form of ownership and the scope of the enterprise.

Analysis judicial practice shows that in most cases, employees do not agree with the very grounds used by the employer for parting with them, nor with the employer's qualification of their actions / inaction as "failure to perform their job duties".

In this article, we suggest that you familiarize yourself with the state of judicial practice that has developed in the field of labor disputes arising precisely from dismissals on the named basis - clause 5, part 1, art. 81 of the Labor Code of the Russian Federation. At the same time, based on the analysis of cases in which the employee SUCCESSFULLY managed to challenge his dismissal, declare it illegal and obtain a court decision on reinstatement (or changing the wording and date of dismissal), we will identify the mistakes of the employer that served as the basis for such a turn of events not in favor of the employer.

1. Errors in the field of execution of orders for punishment and dismissal

Requirement: When issuing an order for punishment (including in the form of dismissal), the order must indicate:
- for what the employee is punished, that is, for what specific act, behavior, action / inaction;
- by what norms the requirement about the algorithm of the employee's behavior is fixed. That is, references should be given to the points of specific local acts, job descriptions, rules, procedures, etc., which the employee violated by his act.
In addition, dismissal should be a proportionate sanction for the employee's blunders.
from Art. 192 of the Labor Code of the Russian Federation, it follows that a disciplinary offense should be understood as a guilty, unlawful failure to perform or improper performance by an employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, etc. .). In the absence of at least one of these conditions, the application of a disciplinary sanction to an employee is unlawful.
According to Art. 192 of the Labor Code of the Russian Federation, the employer has the right to apply the following disciplinary action:
1) remark;
2) reprimand;
3) dismissal on appropriate grounds.
Disciplinary sanctions, in particular, include the dismissal of an employee on the grounds provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The procedure for applying disciplinary sanctions is regulated by Art. 193 of the Labor Code of the Russian Federation.
The Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2) clarified that the employer must comply with such principles as fairness when applying a disciplinary sanction to an employee , equality, proportionality, legality, guilt, humanism. The employer must provide evidence not only that the employee has committed a disciplinary offense, but also that the severity of this offense and the circumstances under which it was committed, as well as the previous behavior of the employee, his attitude to work, were taken into account when imposing a penalty.

Practice :
Bank employee firedp. 5 h. 1 art. 81 of the Labor Code of the Russian Federation (repeated non-fulfillmentby an employee without valid reasons for labor duties, if he has a disciplinary sanction).She considered disciplinary action and dismissal illegal and filed a lawsuit in court. The court recognized both orders (on reprimand and dismissal) as illegal, reinstated the worker at work. The main reason for the recognition of the orders as illegal was that the employer did not bother to indicate in the orders themselves the specific norms of the employer's local acts that were violated by the employee. That is, everything that the employer then indicated in his response to the claim. In addition, the court found that the employee was not familiar with the full text of local acts, the norms of which she actually violated. According to the presented extract from Email the plaintiff, the employer was asked to familiarize the employee only with chapters 17 and 18 of the Order, which she subsequently violated. Despite the fact that the court, during the consideration of the case, established the facts of violation by the employee of the norms and rules in force in the bank, he nevertheless recognized the orders to punish the employee as illegal - due to violation of the rules for processing such documents. (decision of the Kirovsky District Court of Irkutsk dated 04.10.2013; appeal ruling of the Irkutsk regional court dated December 12, 2013 in case No. 10173/2013).

Conclusion: If the dismissal order does not set out the circumstances of the disciplinary offense imputed to the employee, does not indicate the specific provisions of job descriptions, orders, local acts of the employer that were guilty of violation by the employee in the performance of labor duties, and it is impossible to see from the dismissal order what specific violation of labor discipline was committed employee, such orders cannot be recognized as legal.

2. Sequence errors: lack of "repetitiveness"

Requirement: To apply the grounds, there must be at least one more punishment applied and executed in the prescribed manner for the same employee. That is, there must be a valid and not canceled order to punish a previously committed misconduct.
Source and interpretation of the requirement: The requirement follows from the meaning of the very basis for dismissal, that is, paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. In accordance with the explanations contained in paragraph 33 of the Decree of the Plenum of the Supreme Court of the Russian Federation N 2, when resolving disputes of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated failure to perform labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee, and at the time of repeated non-fulfillment by him without good reason of labor duties, it was not removed and not repaid. Within the meaning of the above clarifications, the dismissal of an employee on the above grounds is allowed in cases where the employee, having a disciplinary sanction (s), commits a new disciplinary offense or continues the violation that began before the application of the sanction. Thus, in case of repeated failure to fulfill labor duties, the employer has the right to terminate the employment contract only if he previously applied disciplinary sanctions to the employee that have not been lifted.

Practice:
An employee dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, filed a lawsuit to declare all orders (on punishment and dismissal) illegal. As the court found, the plaintiff worked in the defendant's transport department as a car driver. By the first order, he was brought to disciplinary responsibility in the form of a remark, as indicated in the order, in connection with a negligent attitude to official duties. By the second order of the employer, the plaintiff was brought to disciplinary liability in the form of a reprimand for violating clause 4.1.4 of the employment contract, expressed in refusal to execute the employer's order. By the third order, the plaintiff was subjected to a disciplinary sanction in the form of dismissal. The reason for the application of punishment was the plaintiff's failure to fulfill his official duties, namely the order CEO. The court found that the plaintiff had earlier applied to State Inspectorate labor, which, based on the results of the check of the defendant, an order was made demanding the cancellation of orders No. 1 and 2. In pursuance of the said order, the employer of the plaintiff voluntarily canceled orders No. 1 and 2 (on notice and reprimand). When deciding to refuse to satisfy the claims of the employee to cancel orders No. 1 and 2, the court proceeded from the fact that these orders disputed by the plaintiff at the time of the consideration of the case by the court were voluntarily canceled by the employer. Since, due to the cancellation of these orders labor rights the plaintiff in this part were restored, there were no grounds for re-cancellation of orders by the court. Satisfying the plaintiff's claims to cancel the orders to apply a disciplinary sanction in the form of dismissal and the order to terminate the employment contract with the employee (dismissal) of the plaintiff, the court reasonably concluded that there were no legal grounds for dismissing the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. In connection with the cancellation of orders No. 1 and 2 by the employer, according to the court, there was no sign of repeated non-fulfillment by the employee without a good reason of labor duties and the presence of unresolved disciplinary sanctions, which in turn entails the cancellation of dismissal orders. The employee was reinstated at work in his previous position (decision of the Millerovsky District Court of the Rostov Region dated May 21, 2013; appeal ruling of the Rostov Regional Court dated August 1, 2013 in case No. 33-9646/2013).

Conclusion: If the employer voluntarily canceled the orders to bring to disciplinary liability, which in turn created the repeated failure by the employee to fulfill labor duties without a good reason and the presence of unresolved disciplinary sanctions, then the order to dismiss under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

3. Errors of action: violation of the procedure for imposing disciplinary liability

Requirement: Before applying the penalty, the employer is obliged to request an explanation from the employee on the fact of the misconduct, giving him two full days for this.
Source and interpretation of the requirement: In accordance with parts one and two of Article 193 of the Labor Code of the Russian Federation, before applying a disciplinary sanction, the employer must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up. The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.
If the issue of applying a disciplinary sanction to an employee is resolved before the expiration of two working days after requesting a written explanation from him, then the procedure for applying a disciplinary sanction in the form of dismissal is considered violated, and dismissal by virtue of Part 1 of Art. 394 of the Labor Code of the Russian Federation - illegal.
A different interpretation of these norms would mean that the employer does not have to comply with the deadline for the employee to provide an explanation and the employer can ignore the requirements of Part 1 of Art. 193 of the Labor Code of the Russian Federation, and therefore would entail the loss of the meaning of these norms and a significant violation of the employee's right to provide an explanation within the period established by law.

Practice:
The official of the commanding staff of the institution in the field of education was dismissed at the initiative of the employer. The basis for terminating the employment contract with him was the letters of the Ministry of Education and Science, according to which the district administration was ordered to release him from his duties due to violations of the exam in the district. The dismissed employee did not agree with such a dismissal, considering it illegal due to the lack of grounds and violation of the dismissal procedure. The court, after examining the submitted letter from the Ministry of Education and Science, came to the conclusion that the defendant did not provide evidence indicating that there were grounds for imposing a disciplinary sanction in the form of dismissal. The defendant did not provide evidence to the court that the plaintiff did not perform or improperly performed his official duties, and what exactly these official duties were. In addition, the wording in the order - "for numerous violations committed during the USE" - as one of the grounds for the dismissal of the plaintiff, was correctly recognized by the court as unfounded, since it carries general character and is not specifically confirmed by anything, that is, such evidence was not presented to the court by the defendant. In addition, as can be seen from the case file, the employer applied a disciplinary sanction to the plaintiff in the form of dismissal without demanding explanations, which is a violation of the requirements of Art. 193 of the Labor Code of the Russian Federation. In addition, the dismissal order was issued while the plaintiff was on vacation, which indicates a direct violation of the rules labor law(part 6 of article 81 of the Labor Code of the Russian Federation). Based on the foregoing, the court recognized the dismissal as illegal, and reinstated the employee at work (decision of the Kaitag District Court of the Republic of Dagestan dated August 26, 2013; appeal ruling of the Supreme Court of the Republic of Dagestan dated November 19, 2013 in case No. 33-4068 / 2013).

Conclusion: Violation of the procedure for bringing an employee to disciplinary responsibility (for example, failure to demand explanations for a violation of discipline), as well as failure to comply with the requirements of Part 6 of Art. 81 of the Labor Code of the Russian Federation on the prohibition of the dismissal of an employee at the initiative of the employer during his vacation or illness, is the basis for recognizing the dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation illegal.

4. Errors of time: delay in punishment

Requirement: Article 193 of the Labor Code of the Russian Federation establishes preventive deadlines for bringing an employee to disciplinary responsibility, issuing an order for punishment (dismissal), for familiarizing the employee with the order. In addition, a period during which an employee is considered subject to disciplinary action is set - one year.
Source and interpretation of the requirement: According to parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation, a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, and the time required to take into account the opinion of the representative body of employees.
A disciplinary sanction may not be applied later than six months from the day the misconduct was committed, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the day it was committed. The above time limits do not include the time of criminal proceedings.
In accordance with Art. 194 of the Labor Code of the Russian Federation, if within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, then he is considered not to have a disciplinary sanction. The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.
If the employer punished the employee beyond the time limits specified in Art. 193 of the Labor Code of the Russian Federation, or as a basis for the "repeatedness" required for the grounds provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, applied the order on punishment, from the date of which more than one year has passed, then the dismissal on the basis in question is recognized as illegal.

Practice:
Employee fired for repeated non-compliancewithout valid reasons for work duties, went to court to challenge his dismissal. In the course of the consideration of the case, it was established that, by order issued in February, he was reprimanded for failure to comply with July Order No. 4. The deadlines for fulfilling the duties assigned to the plaintiff by July Order No. 4 were established by the same order until the end of August. Thus, it was established that the employer already in September knew about the plaintiff's failure to fulfill the duties assigned to him by July order No. 4, but punished him only in February, that is, with a delay in the deadline for imposing a penalty established by Art. 193 of the Labor Code of the Russian Federation (for punishment, a month is set from the date of discovery of the misconduct). In view of the foregoing, the court rightly found it illegal to bring the plaintiff to disciplinary liability in the form of a reprimand. Guided by the provisions of paragraph. 5 h. 1 Article. 81 of the Labor Code of the Russian Federation, clarifications of the Plenum of the Supreme Court of the Russian Federation, the court, having established the illegality of bringing the plaintiff to disciplinary liability in the form of a reprimand by the February order, came to the correct conclusion that under such circumstances, the dismissal of the plaintiff under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-performance by an employee without good reason of labor duties is illegal (decision of the Zheleznodorozhny District Court of Rostov-on-Don dated October 27, 2010; cassation ruling of the Rostov Regional Court dated November 29, 2010 in case No. 33- 14176) .

Conclusion: Punishment orders can also be declared illegal in connection with the delay in bringing the employee to disciplinary responsibility (later than the one-month period established by Article 193 of the Labor Code of the Russian Federation). In this case, the “repetition” is also lost, which is so necessary for terminating the employment contract under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Summing up the analysis of judicial practice of successful reinstatement of employees at work after dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it can be stated with confidence that in most cases recovery becomes possible only “thanks to” the mistakes of the employer.

One of the grounds for dismissal at the initiative of the employer is dismissal due to repeated failure to perform labor duties, if the employee has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). However, when terminating an employment contract on this basis, the employer often makes mistakes, due to which the employee can be reinstated in his previous position. In the article, we will consider in detail the procedure for dismissing a negligent employee, and also focus on its individual points.

Instead of a preface

First of all, it is necessary to determine what constitutes non-fulfillment of labor duties. The main duties of the employee are set Art. 21 Labor Code of the Russian Federation. In more detail, labor functions are prescribed in employment contracts and job descriptions. Note that certain labor functions can also be fixed in other acts of the employer (for example, in orders).

Naturally, the employee must be familiarized with his duties under the signature. In particular, Art. 68 Labor Code of the Russian Federation requires the employee to familiarize himself with the internal labor regulations, other local regulations, directly related to labor activity worker, collective agreement. From this we can conclude that if only the name of the position or profession (type of work) is prescribed in the employment contract, but the functions are not specified, but to acquaint him with job description the employer forgot, then bring to disciplinary responsibility for non-fulfillment of labor duties (and even more so dismiss Clause 5. Part 1 of Art. 81 of the Labor Code of the Russian Federation) would be very problematic. This conclusion is confirmed and judicial practice. Thus, the Perm Regional Court in Ruling dated 05/14/2014 in case No.  33-4192 invalidated the disciplinary orders and reinstated the employee in his previous position, and also collected wages for the time forced absenteeism and compensation for non-pecuniary damage due to the fact that in the absence of a job description and official familiarization with their official duties it is impossible to establish the scope of the plaintiff's duties and to charge him with failure to fulfill his duties.

Is it possible to consider being late for work as non-fulfillment of labor duties? Yes, you can. The GIT in St. Petersburg explained: since the employee is obliged to comply with the internal labor regulations, being late can be recognized as a violation of labor discipline, for which the employer has the right to bring the employee to disciplinary responsibility, and in case of repeated delay, even dismiss him.

In addition, according to clause 35 of Resolution No.  2 non-performance by an employee without good reason is a failure to perform labor duties or improper performance due to the fault of an employee of labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).P.).

Such violations include, in particular:

a) the absence of an employee without good reason at work or workplace;

b) the refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure of labor standards ( Art. 162 Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to fulfill the labor function comply with the internal labor regulations in force in the organization ( Art. 56 Labor Code of the Russian Federation).

We also note that the dismissal p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation is a measure of disciplinary responsibility, which means that the employer is obliged to comply with the procedure for bringing to such, established Art. 192, 193 Labor Code of the Russian Federation.

So, the Plenum of the Armed Forces of the Russian Federation in Decree No.  2 pointed out: when resolving disputes of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without valid reasons, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment of labor duties by him without valid reasons, it has not been removed and not redeemed.

Note that if the disciplinary sanction is lifted or the employee violated for the first time labor discipline, then the dismissal p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation is likely to be declared illegal. For example, the Moscow Regional Court, having reinstated the employee at work, indicated that the dismissal procedure was violated, since the employee violated labor duties once, that is, there is no repetition ( Appeal ruling dated 04.06.2014 in case No.  33-12256/2014 ).

According to part 2 p. 33Decrees No.  2 applying a new disciplinary sanction to an employee, including dismissal for p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation, is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction on him.

note

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since labor Relations in this case, they are terminated only after the expiration of the notice period for dismissal.

Procedure for terminating an employment contract

So, when an employee commits a disciplinary offense (that is, when he fails to perform his job duties) and if he wants to dismiss such an employee, the employer should first check the existence of a valid disciplinary sanction (find out whether it has been removed or extinguished), as well as the legality of its application (established whether the labor obligation for non-fulfillment of which the employee was sanctioned was properly performed, whether the procedure for bringing to disciplinary responsibility was observed). For example, an employee was reinstated in his previous position and wages were collected from the employer for the time of forced absenteeism, since the disciplinary sanctions previously applied to the plaintiff at the time of his failure to fulfill his labor duties without good reason were removed and repaid ( Appeal ruling of the Murmansk Regional Court dated May 14, 2014 No.  33-1329 ).

Note

According to Art. 194 Labor Code of the Russian Federation if, within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, he is considered not to have a disciplinary sanction. The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or a representative body of employees.

1. We fix the non-fulfillment of labor duties by the employee. Usually this is done by an act, service or memorandum. All documents confirming the employee's failure to fulfill his duties must be registered in the manner prescribed by the employer. Let's take an example of such an act.

Society with limited liability"September"

about non-fulfilment of labor duties

I, the head of the marketing department Igor Mikhailovich Dubinin, in the presence of the senior marketer Anna Viktorovna Berezina and the brand manager Oksana Ivanovna Lipova, have drawn up this act on the following.

On August 4, 2014, the head of the marketing department, marketer Oleg Petrovich Ivin, was instructed to collect information from consumers on product satisfaction, claims and complaints about products. The report was due on August 11th. Contrary to the requirements of paragraphs 2.5 and 2.7 of the job description, Ivin O.P. did not carry out the named actions to study the demand for goods and submit reports specified in the job description, and did not submit a report.

O. P. Ivin, a marketer, failed to fulfill his official duties, which led to a decrease in the number of buyers, which led to a decrease in sales.

Ivin O.P. was asked to give a written explanation of what had happened.

We confirm the above facts with our signatures:

Dubinin I. M. Dubinin

Berezina A.V. Berezina

Lipova O. I. Lipova

Ivin O.P. refused to sign this act, motivating his refusal by the absence of guilt.

2. Asking for an explanation about non-fulfilment of duties. This is best done in writing, although there is no such requirement. We recommend that you request these explanations in writing so that later, in the event of a labor dispute, the employer can prove that the disciplinary procedure was followed.

So, the notice of the need to provide explanations must be prepared in two copies: the employer gives one copy of the notice to the employee, and on the second copy (employer's copy), the employee writes that he has read the notice, received one copy, puts the date of receipt and signature.

If the employee provides a written explanation, it is considered by the employer and registered in the appropriate register in accordance with the procedure established by him. If, after two working days, the specified explanation is not provided by the employee, an appropriate act is drawn up ( Part 1 Art. 193 Labor Code of the Russian Federation). Note that if the employee did not provide an explanation, this is not an obstacle to the application of the penalty.

If an explanatory note is nevertheless provided, it is necessary to check the validity of the reason for the employee's failure to fulfill his labor duties.

In addition, it is necessary to take into account all the circumstances of a disciplinary offense: the guilt of the employee, the severity of the misconduct, the circumstances of its commission, the previous behavior of the employee and his attitude to work. For example, in Determination of the St. Petersburg City Court dated 04.07.2013 No.  33-9355/2013 employee dismissal order P.5 hours 1 art. 81 of the Labor Code of the Russian Federation was declared illegal because the employer did not provide evidence that the employee's repeated lateness had adverse consequences for the organization, that is, when deciding on dismissal, the severity of the misconduct, as well as the employee's previous behavior, were not taken into account.

If, after considering all the circumstances of the misconduct, the employer decides to simply punish the employee, an order is issued for a disciplinary sanction (reprimand or remark).

The case when the decision to dismiss the employee is made, we will consider further.

3. We check the deadlines set for the application of a disciplinary sanction. According to part 3,4 tbsp. 193 Labor Code of the Russian Federation a disciplinary sanction is applied no later than one month from the day the misconduct was discovered, not counting the time the employee was ill, on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. Recall that due to paragraph 34 of Resolution No.  2 the day when the misconduct is discovered, from which the monthly period begins, is considered the day when the person to whom the employee is subordinated by work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions.

Within a month for the application of a disciplinary sanction, the following shall not be counted:

1. the time of illness of the employee and his stay on vacation;
2. the time required to comply with the procedure for taking into account the opinion of the representative body of employees.

The absence of an employee for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, when shift method work) does not interrupt the course of the specified period.

One more point must be remembered: a penalty cannot be applied later than six months from the date the employee committed a misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the date of its commission. The above time limits do not include the time of criminal proceedings.

Compliance with the deadlines for the application of punishment is very important: if they are violated, the restoration of the employee will be inevitable, even if he really does not fulfill his labor duties. Thus, the employee’s claim for recognition of the dismissal as illegal was satisfied due to a violation of the procedure for bringing to disciplinary responsibility: the penalty was imposed by the employer after one month from the date of discovery of the disciplinary offense ( Appellate ruling Supreme Court Republic of Komi dated June 26, 2014 in case No.  33-3047/2014 ).

4. We check whether the employee belongs to the category of workers who cannot be fired at the initiative of the employer. Recall that according to Part 6 Art. 81 of the Labor Code of the Russian Federation it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary disability and during the period of the employee's vacation.

By virtue of Part 1 Art. 261 of the Labor Code of the Russian Federation termination of an employment contract at the initiative of the employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

So, the employee was reinstated at work, since his dismissal was made during his temporary disability ( The appeal ruling of the Krasnoyarsk Regional Court dated May 21, 2014 in case No.  33-4103А-09).

5. We issue a dismissal order. The termination of an employment contract is formalized by an order (instruction) of the employer ( Part 1 Art. 84.1 of the Labor Code of the Russian Federation). With such an order, the employee must be familiarized with the signature. If this is not possible (the employee is absent or refuses to get acquainted with the order), a corresponding entry is made on the order.

In addition, according to Part 6 Art. 193 Labor Code of the Russian Federation if the employee refuses to get acquainted with the order, it is necessary to draw up an appropriate act.

As a basis for dismissal, the order must indicate the details of the previous order on the application of disciplinary measures to the employee, as well as documents confirming his next failure to fulfill his labor duties (memos, acts, etc.).

6. We make an entry in the work book. According to clause 5.3 Instructions for filling out work books approved Decree of the Ministry of Labor of the Russian Federation dated 10.10.2003 No.  69 , upon termination of the employment contract at the initiative of the employer, an entry is made in the work book about the dismissal (termination of the employment contract) with reference to the relevant paragraph Art. 81 of the Labor Code of the Russian Federation. Let's take an example.

record number	the date			Information about hiring, transfer to another permanent job, qualifications, dismissals (indicating the reasons and referring to the article, paragraph of the law)	Name, date and number of the document on the basis of which the entry was made
	number	month	year
6	15	08	2014	The employment contract was terminated due to	Order
				with repeated failure	dated 15.08.2014 No. 5-u
				without valid reasons
				duties, paragraph 5 of the first part of Article 81
				Labor Code of the Russian Federation
				Morozov's secretary
				M.P.

Remember that the employee must be familiarized with the dismissal record against the signature in his personal card, in which the entry made in the work book is repeated ( clause 12 of the Rules for maintaining and storing work books approved Decree of the Government of the Russian Federation of April 16, 2003 No.  225 "On work books").

After making an appointment on the last working day of the employee, he needs to issue a work book. The employee must confirm this fact with his signature in the book of accounting for the movement of work books and inserts to them. If it is impossible to issue a work book on the day of dismissal due to the absence of the employee or refusal to receive it, the employer is obliged to send a notice to the employee about the need to appear for the work book or agree to send it by mail. At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

7. We carry out the final settlement. Based Art. 140 of the Labor Code of the Russian Federation upon termination of the employment contract, payment of all amounts due to the employee is made by the employer on the day the employee is dismissed. If the employee did not work on that day, the corresponding amounts must be paid to him no later than the next day after the dismissed employee submits a request for payment.

8. We complete the dismissal. The last step registration of dismissal may be the issuance of duly certified copies of documents related to work. This is done only if the employee asks the employer about it in a written statement.

But it is mandatory to issue a certificate of the amount of earnings for the last two years preceding the dismissal. This is required p. 3 h. 2 art. 4.1 federal law dated 29.12.2006 No.  255-FZ "On mandatory social insurance in case of temporary disability and in connection with motherhood. Recall that the form of the certificate is approved Order of the Ministry of Labor of the Russian Federation dated April 30, 2013 No.  182n .

In addition, if the employee was liable for military service, information about his dismissal must be transferred to the military registration and enlistment office. Such information is submitted in the form given in Appendix 9 to methodological recommendations for the conduct military registration in organizations, approved by the General Staff of the Armed Forces of the Russian Federation on April 11, 2008.

Finally

Summing up, we recall the main points in the presence of which it will be problematic to challenge the dismissal. So, before issuing a dismissal order for p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment by an employee without good reason of labor duties, the employer should check:

• whether the employee has outstanding and outstanding disciplinary sanctions, whether they are properly executed;
• Is the employee familiar with their official duties, internal labor regulations and other documents relating to his labor activity;
• whether the procedure for bringing an employee to disciplinary responsibility was carried out correctly ( Art. 192,193 Labor Code of the Russian Federation).