10 ways to fire an unwanted employee

General grounds and procedure for dismissal

Russian labor legislation allows a citizen to initiate termination of an employment contract at any time; to do this, it is enough to write a corresponding application and work for the next two weeks.
In most cases, a citizen is not obliged to explain the reasons for his decision; dismissal without the consent of the employer is a normal, legal practice. The employer does not have such freedom of action and does not have the right to dismiss employees without reason - he needs legitimate justification to terminate the contract. The list of acceptable reasons for dismissing a citizen is listed in the Labor Code of the Russian Federation, which defines how an employee can be dismissed without his consent and what procedure must be followed. The legitimate reasons include the following:

inconsistency of the employee with the position held - clause 3, part 1, art. 81 Labor Code of the Russian Federation;
failure by a citizen to fulfill the labor duties assigned to him - clause 5, part 1, art. 81 Labor Code of the Russian Federation;
gross disciplinary violation - clause 6, part 1, art. 81 Labor Code of the Russian Federation;
loss of trust - clause 7, part 1, art. 81 Labor Code of the Russian Federation;
failure to complete the probationary period - Art. 71 Labor Code of the Russian Federation;
liquidation of a company or reduction of staff - clauses 1 and 2 of Part 1 of Art. 81 Labor Code of the Russian Federation;
refusal of a citizen to change the conditions established by the employment contract - clause 7, part 1, art. 77 Labor Code of the Russian Federation.

For each reason for compulsory dismissal, there is a specific procedure, strict compliance with which is the employer’s responsibility. Regardless of the reason for dismissal, the fact of termination of employment relations with a citizen is formalized by an appropriate order.

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Termination of a contract with an employee without his consent

Employers do not always act in good conscience when they try to fire employees they don’t like. But in order to avoid problems with the law, it is necessary to distinguish the arbitrariness of the manager from the legal grounds for dismissal.

The first situation includes termination of an employment contract:

on grounds not specified in the Labor Code of the Russian Federation or other federal laws;
on grounds prohibiting the dismissal of a certain group of employees (on the initiative of the employer, it is impossible to terminate a contract with pregnant women, including on the grounds of her situation, it is impossible to dismiss a pre-retirement person for reaching a certain age);
on fictitious grounds (dismissal “under article” without proper evidence of the employee’s guilt);
with violations of the procedure for terminating an employment contract (missing deadlines during liquidation or layoffs, layoffs of employees with immunity, errors in personnel documents, etc.);
based on forcing an employee to leave of his own free will or to sign a resignation agreement.

The listed actions of the employer are illegal. An employee who has been fired from work in this way or who just wants to terminate his contract has the right to protect his rights by filing a complaint with the labor inspectorate or the prosecutor's office.

Important! Legitimate reasons for dismissal are listed in the norms of labor legislation (Chapter 13 of the Labor Code of the Russian Federation and certain articles regulating the termination of employment relations in certain areas of activity).

A manager can fire an employee in a suitable situation, but only if there is a reason, for example:

a gross violation recorded in writing (a report is drawn up, and the employee writes an explanatory note);
the guilt of the materially responsible employee for the shortage has been proven by the commission;
the employee himself submitted an application of his own free will (“Please dismiss me of my own free will”) without coercion from the employer or signed a dismissal agreement, etc.

The document justifying the dismissal is indicated in the Order of Dismissal. The employer writes down the date and number of the document, according to which an inspection or court can subsequently easily verify the legality of termination of the employment relationship.

Possible grounds under the law

How can you fire an employee if he doesn't want to? An employee can be dismissed from work without his consent only on the grounds listed:

in labor legislation (Chapter 13 of the Labor Code of the Russian Federation, Article 278, Article 332 of the Labor Code of the Russian Federation, etc.);
in the Federal Laws regulating the activities of individual employees (Federal Law No. 342 “On service in internal affairs bodies ...”, Federal Law No. 79 “On the state civil service”, etc.).

An employer may dismiss an employee on its own initiative in accordance with Art. 81 Labor Code of the Russian Federation:

staff reduction (if the employee does not fall into the categories specified in Articles 179 and 261 of the Labor Code of the Russian Federation);
inadequacy for the position held (an unsatisfactory test or certification result will be required);
loss of trust (applies only to employees with full financial responsibility and provided that they committed an action that served as a reason for mistrust);
repeated failure to fulfill official duties, tardiness (must be recorded in an act, disciplinary action will also be required);
a one-time gross violation of labor discipline (absenteeism, appearing drunk at work, etc., recorded in an act).

Another method of dismissal is an unsatisfactory test result , if the employee was provided with an internship under the employment contract. During it, a curator or a whole commission is assigned to the employee, which, during the trial period, checks his skills and abilities and records violations in a special act. On its basis, the employment contract is terminated (Part 2 of Article 71 of the Labor Code of the Russian Federation).

You can part with an employee without being fired “under the article”.

Important! The employer has the right to offer to terminate the contract by agreement of the parties by offering the employee severance pay.

He may hint at leaving of his own free will, but in no case should you insist or try to “squeeze” the employee out of the team: the manager will be held accountable for this.

Another type of dismissal is termination of a contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation):

illness of an employee (if he is a disabled person of group 1 or 2, and the medical commission has established a 3rd degree of disability);
his conviction to imprisonment or other punishment that prevents him from going to work;
loss of a special permit for more than 2 months (loss of a driver’s license, weapons permit), etc.

A separate issue is the dismissal of temporary workers and external part-time workers.

In the first case, you can fire:

due to the expiration of the contract (Article 79 of the Labor Code of the Russian Federation);
in connection with the return to work of the main employee.

In accordance with Art. 288 of the Labor Code of the Russian Federation, a part-time worker can be dismissed in connection with the hiring of an employee for whom the part-time position will become the main one.

Why can you part with someone you don’t want?

Thus, an undesirable employee can indeed be fired , but the employer must carefully consider certain points.

Availability of foundation.

Without a document confirming the reason for dismissal, an employee cannot be removed.

Deadlines.

In some situations, an employee must be notified of dismissal in advance:

3 days in advance - in case of dismissal due to the expiration of a fixed-term contract, in case of inadequacy for the position held or unsatisfactory test results;
2 weeks in advance - if a part-time worker is dismissed due to the hiring of a main employee;
2 months in advance - in case of liquidation of the organization or reduction.

In other cases, the employee is presented with a fait accompli.

Offer of other positions.

Offering a transfer to another vacant position is the direct responsibility of the employer:

in case of layoffs (must be proposed in a notification letter, and if new positions become available - before the end of the two-month period);
upon dismissal of a temporary pregnant employee who was replacing another employee;
upon dismissal for health reasons (it is necessary to offer a position that corresponds to the employee’s degree of ability to work).

Correct design.

The Order, work book and other personnel documents must correctly reflect references to the grounds for dismissal (a norm of the Labor Code of the Russian Federation or other Federal Law). The employee must be familiarized with the Order by signature. You must also sign the notification documents.

Calculation.

Upon dismissal at the initiative of the employer or at one’s own request, only the remaining salary is paid and unused vacation is compensated (Articles 127, 140 of the Labor Code of the Russian Federation).

Important! If an employee is fired due to reduction or liquidation, he is paid severance pay for the duration of employment (average monthly salary for 2, less often 3 months).

Severance pay can also be paid upon dismissal due to reduction in headcount or staffing. The size is determined by agreement.

Failure to pay a settlement is another violation, as a result of which the manager may be held accountable.

Position mismatch

Inconsistency with a position should be understood as the employee’s lack of competencies, knowledge, and experience necessary for his position. Is it possible to dismiss an employee without his consent if he does not suit the employer professionally? It is described in parts 2 and 3 of Art. 81 Labor Code of the Russian Federation. To formalize dismissal on this basis, a simple opinion of the manager about the employee’s competencies is not enough. Before terminating the contract, you must:

Conduct a commission certification of a citizen and, with its help, make an objective verdict on the suitability or non-compliance of his position. Certification is carried out with the participation of the company's trade union body.
If an employee is found not to be suitable for the position, he should be offered another position available in the company for which he is suitable.
Only if there are no vacant suitable positions in the organization or if the employee has officially refused the employer’s offer, dismissal for lack of suitability is allowed.

Read more: How to fire an employee who does not meet qualification requirements

On the way out, or How to fire an employee without his desire according to the law

Victoria Mitina Updated: May 31, 2020 411 Font AA No time to read?

Send article by email Add to favorites The Labor Code allows the dismissal of employees without their consent, if there are good reasons for doing so. Literally every employee - both the president of the company and an ordinary driver - can be dismissed from their position.

The editors, having studied the main tricks, decided to tell you how to fire an employee without his desire according to the law. Contents In any company, a situation may arise when an employee is asked to leave. The reason for this may be an insufficiently high level of work performed, complaints from superiors, or a desire to update the staff.

It is necessary to consider the dismissal procedure in more detail.

The boss has many levers of pressure on a careless employee to force him to leave “in an amicable way.” Realizing that tense relations with management will not allow him to successfully build a career, the employee leaves on his own. It is better to leave than to be relieved of your position “under the article”. A negative entry in the work book can ruin the future.

Dismissal by agreement of the parties is regulated by Article 78 of the Labor Code. The parties sign an agreement in which they indicate the date of termination of the contract and compensation for the employee. After signing, the terms can only be changed by mutual agreement of the parties.

The management plots intrigues against the conflicting employee and tries to get rid of him in various ways.

They may simply not give him assignments or set him impossible tasks, create unbearable working conditions, or reduce his salary. Or they will try to catch you at the slightest mistakes in work or violations of discipline. As a result, the employee will still be fired.

Without consent, you can quickly fire an employee who is on a probationary period if the results of his work do not satisfy his superiors. To do this, it is enough to record in writing the discrepancy in the quality of the work performed in the form of acts, commission minutes, and reports. The manager reduces the position of the employee he wants to get rid of.

Staff reduction is regulated by paragraph 2 of Article 81 of the Labor Code. The employer issues an order to reduce the number of employees, which must be familiarized to the employee two months before dismissal, as well as the employment service must be notified.

Insufficient qualifications or inadequacy for the position must be proven, for example, by certification (Article 81 of the Labor Code). It should be noted that for this, each position in the company must be described in detail, indicating the required qualifications. By law, before dismissal, an employee is required to be offered another position, and only after refusal to dismiss.

Work discipline violators who regularly show up late or leave work early can cause serious harm to the company. For some professions this is unacceptable: a surgeon in a private clinic, a dispatcher, a driver, a hairdresser, a manager with whom negotiations are scheduled. Employers have the right to fire for such misconduct.

Article 81 contains a list of gross violations due to which the employer will have the right to immediately dismiss the employee.

These include:

absenteeism;
appearing in a state of intoxication or under the influence of drugs in the workplace;
disclosure of secrets;
theft or intentional damage to property;
violation of labor safety standards that caused serious consequences.

The employer also has the right, at its discretion, to change the terms of the employment contract and introduce impossible conditions into it, for example, knowledge of the Chinese language.

In judicial practice, there are cases of reinstatement due to violation of the dismissal procedure, errors in the employment contract or its absence. The employee will be returned to his position by a court decision.

The smartest thing to do would be to receive all the payments and compensation due and quit, since, most likely, the situation in the workplace will become unbearable. There are categories of workers who are prohibited from being fired. These include pregnant women and women with children under three years of age, single mothers with children under 14 years of age, and employees on maternity leave.

Now people of pre-retirement age are also protected by law. For violating the dismissal procedure, the employer may be fined in accordance with the Code of Administrative Offences.

The employee will be required to provide the court with undeniable evidence of his innocence. The presence of witnesses will also be useful.

A properly executed dismissal of an unwanted employee will protect the employer from problems with the labor inspectorate. Both the employer and the employee who find themselves in such a situation should not forget about human rights and the need to follow the letter of the law when formalizing labor relations.

Failure to fulfill duties

The procedure for dismissal without the consent of an employee due to his failure to fulfill his duties is described in paragraphs 33 and 35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

The document specifies that failure to fulfill duties should be established if a citizen violates:

legal requirements;
obligations under the employment contract;
internal labor regulations;
job description;
regulations, orders or other official documents of the employer.

An important condition for the application of this ground for dismissal is the repeated failure to fulfill duties: in the event of primary failure, termination of the employment contract is unacceptable, and the violator should be subject to disciplinary action. But if a citizen repeatedly fails to fulfill his duties before the expiration of the disciplinary sanction, the employer has grounds for dismissal.

Even in this case, dismissal is preceded by an internal investigation designed to establish the degree of guilt of the employee. As part of such an investigation, written explanations must be taken from the employee.

Read more: Procedure for applying disciplinary sanctions

Dismissal due to health reasons

mainly refer to employees of online stores specializing in the delivery of food and groceries . These often have a kitchen, whose employees are required to have medical records and undergo annual medical examinations, taking a bunch of tests.

It must be said that the medical examinations are strict, and the doctors are picky. Therefore, sometimes it happens that an employee does not pass the test for some reason. And no matter how sorry it is, you will have to part with such a person.

The same thing, for example, with courier drivers. All of them undergo periodic medical examinations to obtain and renew a driver’s license, pass a technical inspection, and so on. If at some point the coveted certificate cannot be obtained, the person is deprived of the right to drive vehicles and cannot continue to work. He will also have to be fired.

Technically, everything is done very simply. There is a reason for dismissal - health status. This is confirmed by the corresponding conclusion of the medical institution. All you have to do is issue a dismissal order and attach this certificate to it. The wording of the order and the entry in the work book will be “Dismissed for health reasons.”

In this case, we are not talking about any kind of work - the person quits, as they say, in one day. True, you can offer the person being fired another position in your organization.

One-time gross violation

Separately, the Labor Code of the Russian Federation identifies a list of offenses, the single commission of which is sufficient to dismiss an employee:

absenteeism;
showing up at work under the influence of alcohol or drugs;
disclosure of state, commercial or official secrets, if the employee gained access to it in connection with his official duties, the list of protected information also includes personal data of other employees;
theft;
violation of labor protection requirements, if it resulted in serious consequences, for example, an accident, breakdown or catastrophe.

Before formalizing the dismissal of an employee without his consent, the company administration is obliged to take preliminary measures, including:

Request an explanation from the employee.
Obtain a medical report on the employee’s condition if we are talking about appearing under the influence.
Obtain a conclusion from the labor protection commission about the fact of violation.

Read more: How to file for dismissal for absenteeism

Disclosure of professional secrets (sub-clause “c” of paragraph 6 of Article 81)

Disclosure of secrets protected by law (state, commercial, official and other) that became known to an employee in connection with the performance of his job duties, including disclosure of personal data of another employee, is a serious violation of job duties. At the same time, the concept of personal data is very broad, and theoretically you can be fired even for telling someone your colleague’s home phone number.