What happens if you are fired under the article: recommendations and consequences for new employment

Business lawyer > Labor law > Dismissal > What happens if you are fired under an article: entry in the work book

The work activity of citizens is inherently associated with ups and downs. Some people systematically receive promotions, climbing the career ladder, while others are in constant conflict with their superiors, seeing no further prospects. Often, the administration of an enterprise tries to get rid of unwanted employees, offering to resign of their own free will. The alternative offered to the employee - to resign under the article - is nothing more than a threat. However, there is no such thing as “dismissal due to article”.

If an employer terminates relations with a citizen, then he has good reasons for this, and he is ready to prove his accusations by documenting the appropriate grounds for dismissal through commission proceedings and a corresponding entry in the work book.

What entry can be found in your work record when you receive it?

In the current legislation there is no such definition as dismissal under the article. A description of the termination of the employment relationship is given in two paragraphs of the Labor Code. The first article is Article 80, which provides for the employee’s right to work, in particular, its termination on his own initiative. The second article is Article 78, which provides situations when you can part with your job by agreement with the administration.

It is a completely different matter when termination of employment fits the content of paragraph 81, according to which dismissal is the cause of guilty actions on the part of a full-time employee of the organization:

The third paragraph provides for the possibility of terminating the contract between citizens and the administration of the enterprise due to inconsistency with the position held.
This refers to the low level of competence of the employee. In this case, the employer must confirm this quality, for example, with certification results. Dismissal under article
Point five is the most common reason for the dismissal of citizens who evade fulfilling their assigned duties. This action can be proven by logging systematic delays and absences from work (more than 3 hours). Being on the territory of the enterprise during working hours in an inadequate state, for example, under the influence of drugs or alcohol. At modern enterprises and paramilitary institutions, a regime of maintaining the confidentiality of information available by position is often introduced. Disclosure of official information may also result in dismissal under Article 81.
Paragraph six provides for a high level of responsibility for financially responsible persons. Thus, embezzlement, theft and other economic crimes entail a loss of trust on the part of enterprise administrations.
The immoral behavior of citizens engaged in labor activities is described in paragraph 8 of Article 81.
The tenth paragraph of the article provides for the possibility of parting with an employee who has committed a clear failure to comply with the essential terms of the employment contract.
The 11th part of the article describes the guilty actions of an applicant who provided false information about himself during employment. You can also be held accountable under this point during your employment relationship.

There is another article in labor legislation, according to which the dismissal of employees may be caused by circumstances beyond the control of the parties. Such reasons include the conviction of citizens, the imposition of administrative penalties (a certain number or disqualification), as well as a court decision.

According to current practice, the parties to proceedings try to make concessions. If an agreement cannot be reached, an “inconvenient” entry in the work book is inevitable. It is worth remembering that an employer’s offer to resign voluntarily in exchange for leniency is illegal. According to the law, it is impossible to dismiss an employee who conscientiously performs his duties for guilty actions.

Unpleasant consequences

Employers carefully study the work record of a potential employee.
The presence of a record that the contract is terminated due to gross violation of obligations is a negative sign for the employer. The person appears in the eyes of his future superiors as frivolous and unreliable. Those starting their careers do not understand the consequences of being fired under the article in the future, so they do not worry about the consequences. A short phrase in documents turns into a panic button. Not every enterprise will take the risk of employing a problem subject, and the search for a new job will become much more difficult. The applicant is rejected before the interview and does not have the opportunity to explain the reason for dismissal.

Many companies are taking advantage of the desperate situation and hiring employees for low-paid positions.

To confirm your qualifications, you have to start from the bottom. If a person is a professional in a rare specialization, then there is a chance to “bargain” for a position without a salary cut.

https://youtu.be/-WSEiwf_Xog

Trying to negotiate with management

Both parties to the employment relationship are usually always aware of the upcoming dismissal. The employee is obliged to notify in writing of his intention to terminate cooperation with the enterprise. At the same time, the administration reserves the right to assign so-called detention. The management of a legal entity is also responsible for advance warning of its actions in relation to employees - citizens should be notified no later than one month in advance. However, if there is a trial for guilty actions, dismissal can be issued retroactively.

Agreement with management

The agreement with management implies agreement on further actions on the issue of dismissal. This option is perfect for cases where the administration of the enterprise does not have sufficient authority to formalize “guilty” dismissals. In this case, a competent employee still has the chance to make a proposal to formalize the agreement.

If an employee has some materials for the organization, they can be presented as an argument. In this case, the situation cannot be called a blackmail background, since the administration of enterprises that violates labor laws is simply warned about possible legal proceedings.

Possible mistakes of employers when dismissing “under article”

Incorrect adherence to design

For example:

The employee was fired with the wording “gross violation of labor discipline” for absenteeism. He filed a claim for wrongful dismissal. The court upheld his complaint, since the audit revealed errors in the recovery procedure: the dismissal order was issued before the employer received an explanatory note from the employee. Since the employment contract had expired at the time of the verdict, the employee was not reinstated, but the wording of the reason for dismissal was changed to “expiration of the employment contract.”

From scratch or replacing the work book with a new form

One of the easiest ways to eliminate the problem with a negative record is to lose the work book. Its absence, of course, can confuse the administration of the enterprise. But be that as it may, the organization remains obligated to issue a new document upon employment. If the citizen is satisfied with the employer, then no problems with hiring will arise. The applicant will only have to pay for a new book, since it is a strict reporting form. But you can always purchase it yourself, since the book is on free sale.

The only thing that will make further work difficult is the inability to confirm your work experience. On the other hand, in modern enterprises the uniform length of service for calculating payments has been abolished. Each organization has its own profile period of work.

When there is an absolute need to confirm your work experience, you can always send a request to the places of work where the citizen had an employment relationship. In this way, you can always restore personal data, for example, before your upcoming retirement. Also, a duplicate work record book can be restored by contacting the employer who hired the citizen before the negligent organization.

Inconsistency with the position held

Dismissal under this point is possible only if the employee has been certified and the commission has revealed his inadequacy for the position held. The mandatory nature and frequency of its implementation must be stipulated by law (for doctors, teachers, prosecutors, etc.) or reflected in local regulations.

Certification confirms the employee’s skill level.

If it is not suitable for the work he performs, the employer is obliged to offer all available vacancies that are suitable for the employee and are located in the given area (in the same locality), and also that his health condition allows him to occupy.

If there are no such vacancies, then the employer has the right to dismiss the employee.

You can go to court

You can protect your civil rights in court. In case of disagreement with your dismissal, the procedure for appeals is applied in accordance with Article 392 of the Civil Code. However, the former employee has 30 days to initiate proceedings.

Going to court

Within a month after the issuance of a work book with an “inconvenient” entry, it is necessary to file a claim against the former organization, in which it is necessary to indicate the demands for reinstatement and even payment of compensation for the period of forced non-fulfillment of labor duties. It is noted that the costs of paying for the proceedings are borne by the legal entity in which the dismissal was formalized.

During the trial, it will be established whether the administration of the enterprise really had grounds to dismiss the employee for guilty actions. If the contract was terminated under pressure from an employee or for other reasons that do not comply with the law, the company faces an administrative fine. In this case, the negligent organization will have to restore the citizen to his previous position and pay wages even if he was not actually engaged in labor activity.

The overwhelming majority of hearings end in a win for citizens, but at the same time, the employee, even if he is a former employee, should not lose his vigilance. HR departments of enterprises extremely rarely respect the rights of employees while protecting the economic interests of the administration.

In any case, each employee must keep with him a copy of the employment contract and all additional agreements. Often, in conversations with employees, personnel services use various tricks, provoking the wrong actions of citizens. This can happen even regardless of how right the employee is.

Solution

Lawyers recommend looking for a way out of the situation only if difficulties arise with employment. Often, enterprises do not pay attention to records and are guided by a track record of merit. The applicant proves competence and gets a job.

Experts are sure that if you were fired under an article, you can get a new work book. The HR department writes a statement about the loss of the old document, after which they pay the cost of the form. If the employee suits the employer, then there will be no problems with the device. Sometimes the administration is interested in a person’s professional reputation.

If length of service is not important, then it is enough to buy a new document. For people with many years of experience, lawyers recommend restoring personal data before registering with a “problem” enterprise. The occupation is troublesome, but it will protect you from running around offices and authorities before retirement.

When applying for a job in a serious company, you need to prepare for a thorough check. The security service can easily obtain information about the applicant from the pension fund data. For example, dismissal for absenteeism at a former job will become a reason for further severance of relations due to non-compliance with the terms of the contract and concealment of important information.

If there are controversial issues, then they are resolved in court. Article 392 of the Labor Code of the Russian Federation states that within 30 days after receiving the work book, a citizen has the right to challenge the decision of the former manager. If the contract was terminated in violation of the law, then there is a chance to be reinstated, correct the record and receive monetary compensation. After a positive decision, the employee is dismissed by agreement of the parties.

How to deal with a new employer

A conversation as a job seeker at another company aims to sell yourself at a higher price. The realities of modern employment show that enterprises often need the business qualities of employees rather than their education. In this case, the main characteristics are the total length of service and specialized experience. Few people care about the behavior of the former employer towards employees.

When applying for a new job, it is important to prepare for the conversation in accordance with the vacant position. To obtain such information, you can refer to the materials provided by specialized portals, as well as leading experts in the field of recruiting. If, nevertheless, the situation with a description of your separation from your previous employer is inevitable, it is necessary to present the situation as a common misunderstanding.

You need to talk about your former employer, who issued the employment certificate on his own initiative, as little as possible. Also, you should not speak in a negative way, since sabotage or other manifestations of disrespect for the administration are not welcome in any workplace.

At the same time, we must not forget that organizations often use modern recruitment methods. You can find out your labor history using various methods, including requests to the Pension Fund. So, when preparing personalized reports, accounting employees may accidentally find out about their former place of work. In any case, information about relationships with the administration at the previous position need not be disseminated.

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What does Article 81 say?

If the employee has really done something wrong, then when dismissing you should take into account the requirements of Article 81, these include the following circumstances:

If, based on the results of the certification, it is revealed that the employee is not qualified and does not correspond to the position held.
If the employee almost always did not complete the tasks given to him by the manager. This is easy to prove if lateness for work is recorded in the protocol, as well as absence from the workplace without a good reason for 4 hours or more. And also if the employee has been repeatedly noticed in a state that distinguishes him from a sane person, namely, intoxication of an alcoholic, toxic or narcotic nature. Employees whose activities were associated with the leakage of confidential information available to them are subject to dismissal.
If responsibility for material assets was violated during the performance of official duties, that is, unreasonable expenses of funds and theft were made.
If immoral behavior is noticed on the part of employees at work in relation to other persons.
If an employee initially provided information about himself that did not correspond to reality, that is, he hid the true data.

Failure to fulfill labor duties

Reason: Clause 5 Art. 81 of the Labor Code of the Russian Federation “Repeated failure by an employee to fulfill labor duties without good reason, if he has a disciplinary sanction.”

Theoretically, an employer can convict an employee of improper performance of work, which may serve as grounds for terminating the employment relationship. However, in practice it is not so simple:

Failure to fulfill duties must be systematic
and without good reason;
Before the dismissal order is issued, the employee must already be subject to disciplinary action
.

The procedure should be formatted as follows:

after the employer discovers a violation, he must request from the employee a written explanation of his action or inaction, which must be submitted within two days
;
the employer imposes a disciplinary sanction, which must correspond to the severity of the employee’s misconduct, and can be in the following form:

rebuke;
comment;
dismissal;

the employee must be familiarized with the contents of the penalty within three days
from the date of issuance;
the penalty is applied no later than a month
from the moment the violation is recorded;
the recovery must be documented by an appropriate order signed by the manager;

The disciplinary sanction itself can be appealed by the employee to the state labor inspectorate or in court.

Moreover, if the employer tries to fire under clause 5 of Article 81

an employee who does not have disciplinary sanctions, that is, there is a good chance of challenging the dismissal in court.

Practice shows that with sufficient desire and the presence of a qualified representative from the employee, it is not as easy for the employer to apply this article as it might seem at first glance.

What to do when terminating a contract: recommendations

The dismissal procedure can have a negative impact on both the employee and his management. If an employee understands that he has committed an offense, then it is in his interests to translate the reason for dismissal into his own desire. This is the best option for management because... this action cannot be challenged in court. When entering the wording of Article 81, the personnel employee must be confident in the correctness of the document flow:

Drawing up acts and memos in the prescribed form;
Compliance in terms of notification, drawing up orders, etc.;
Availability of documentation confirming the disciplinary violation.

This is also important to know:
Dismissal due to staff reduction: payments and compensation

In case of theft and theft, the entry in the book is legal when making a court decision.

And if the employee does not agree with the dismissal, he must study the procedure for writing an order and his contract. If there is a violation of labor legislation, then there is no need to succumb to pressure from the manager and write a statement of your own free will.

Contacting the labor inspectorate within a month will not only cancel the dismissal record, but will also reinstate the employee in his position. In addition, the company risks paying a fine and compensating for employee absenteeism due to litigation.

Paperwork

If the dismissal is carried out voluntarily for health reasons, then the employee must complete all the necessary documents.

The first step is to undergo a medical examination, during which the employee will be given contraindications or even the employee will receive one of the categories of disability.

It is necessary to collect a list of medical information in order to document your disability.

After collecting evidence, you need to contact your boss with a letter of resignation, in which you describe the reason for the dismissal.

The structure of the document should include the following data:

About the head of the organization.
About a resigning employee.
Heading in the form of the word “STATEMENT”.
The main text containing the request for dismissal and the reason for leaving work.
Date of document creation.
Signature of the resigning employee.

After submitting this document, the manager is obliged to issue an order with which the employee must be familiarized. The employee must confirm his knowledge with his signature. After which it is necessary to register a record of leaving in the work book. All documents are issued to the employee on the last working day, which he indicated in his resignation letter.

When an employer can offer a new job, he needs to draw up a transfer document and carry out an internal transfer. In such a situation, the employee only needs consent and signature. The rest of the documentation is handled by the supervisor and the head of the department to which the employee is transferred.

Possible payments

If an employee is fired under Article 81 under the first paragraph, then payments are possible in the form of compensation for vacations not taken, sick leave and other funds that are due to the dismissed person as a result of recalculation made in the accounting department of the organization.

The same thing happens when an employee resigns voluntarily or due to health reasons. In cases where an injury or illness was sustained in the course of production, such employee is entitled to separate sick pay.

There is a special formula that determines the vacation period that is paid.

In this formula:

A – actual salary;
B – average number of days in one month (29.3);
C – average salary.

The formula itself is represented by the following sequence of actions: C = A/12*29.3

To independently calculate the vacation compensation due to a dismissed or resigning employee, you must follow several steps in succession:

Calculate the amount of payments made for the last working year. If the employee worked for less than a year, then it is necessary to calculate payment for the entire period of work.
After calculation, you need to divide the amount of payments for the year by 12. If the work was carried out for less than a year, then you need to divide by the number of months worked.
Divide the resulting average monthly salary by 29.3.
Multiply the resulting number by the number of vacation days not taken by the employee.

These calculations can be done using an online calculator, but they will not be as accurate as calculating compensation yourself. After all, the calculation takes into account all the conditions under which the employee is dismissed.

If an employee has additional days of vacation (vacation period over 28 days), then he has the right to demand payment for both basic and additional vacation upon dismissal.