Dismissal in the event of a single gross violation of labor duties by an employee

On repeated violation of labor obligations

What constitutes a breach of duty?

In the process of work, all sorts of nuances occur. Unfortunately, it also happens when it is necessary to fire an employee from the company.

There are no more options, he repeatedly fails to fulfill his job duties, starts the working day in an inadequate state, or simply does not perform the functions assigned to him.

List of grounds for dismissal:

Absenteeism. Absence from the workplace for more than half of a work shift or more than 4 is considered absenteeism. If the employee does not show up at the workplace at the required time, then the employer can safely prepare an administrative document on his dismissal;
An employee performing duties under an employment contract came to work drunk or under the influence of drugs. He risks being fired from the enterprise, regardless of his work achievements;
If a person with whom an employment contract has been concluded has committed theft, then this case is submitted to the employer for consideration. According to the Labor Code of the Russian Federation, if the amount of theft in monetary terms does not exceed the average monthly salary, then the manager can issue an administrative document to withhold from the employee’s salary an amount in the amount of damage, but if the amount of damage exceeds the average monthly salary, then everything is decided by a court decision;
Disclosure of state secrets or confidential information, the non-disclosure of which he signed in the employer’s documents, can also become a reason for dismissal;
Failure to comply with labor protection requirements, if this resulted in health problems and a threat to the lives of other persons carrying out activities in accordance with the employment contract.

All cases are considered individually and may be grounds for dismissal.

The sequence of dismissal for a single gross violation of labor duties

Important
The entire list of possible gross violations of labor discipline or labor duties, for which dismissal may be applied, is enshrined in clause 6 of Art. 81 Labor Code of the Russian Federation. The list of offenses listed in it that relate to gross violations is closed and exhaustive, not allowing the addition of new items to it (clause 38 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

Thus, when determining the admissibility of using termination of an employment contract as a punitive measure against an employee, it is imperative to compare the offense committed by him with the types of violations given in this article. Termination of employment relations at the request of the employer in cases other than those not included in the list of Art. 81 of the Labor Code of the Russian Federation, the legislation does not allow employee misconduct.

For your information

It is worth remembering that in order to exercise its right to terminate the employment relationship on its own initiative, the company must adhere to the general principles of bringing to punishment for disciplinary omissions (Part 3 of Article 192 of the Labor Code of the Russian Federation).

Before starting the dismissal procedure, it is necessary that there be a basis for this. If a violation is detected, the person who discovered it draws up a report or otherwise informs the manager and the personnel service about it. As a result, the company should receive a document that subsequently serves as evidence of the commission of an offense:

An act of the commission recording the fact of absence - due to truancy;
Medical certificate confirming the fact of intoxication;
An act of the results of an internal investigation following the disclosure of a trade secret or the discovery of a gross violation of safety regulations;
Court verdict in a case of theft or embezzlement.

After receiving these documents, the employer must adhere to the rules for applying disciplinary sanctions contained in Art. 193 Labor Code of the Russian Federation. In case of absenteeism, violation of labor safety requirements or the fact of intoxication, an explanation must be requested from the employee, for which he is given 2 days.

For your information

Lack of explanations is not a basis for refusal to apply punishment.

Based on one of the above documents, the employer issues an order to impose a disciplinary sanction in the form of dismissal. At the same time, some experts, relying on Letter of Rostrud dated June 1, 2011 N 1493-6-1, indicate that the issuance of two orders: on the application of a disciplinary sanction and on dismissal will also not be a violation of the law. The Labor Code of the Russian Federation does not contain any clarification on this issue.

Information

Orders can be issued in a independently developed form or using the T-8 form.

The date of termination of the employment contract specified in the order and work book becomes the employee’s last working day.

For your information

An employment contract cannot be terminated with an employee during a period of incapacity for work or while on vacation. In addition, certain categories of workers are not subject to dismissal at the initiative of the employer, in particular pregnant women, women with children under 3 years of age, and single mothers.

On the day of dismissal, the employee is issued a work book, as well as a certificate of average earnings; upon his application, he may be issued other documents about his work activity.

Absenteeism

An employee will be counted as absenteeism if he was not at work during the working day. In the old version of labor legislation there was a different wording of this act. It meant the absence of an employee for 4 hours or more in a row during the whole working day. There was an inaccuracy in this, since not all employees have a working day of four hours.

For example, students who combine work and study, and are between the ages of fourteen and sixteen years, have the right to work only two and a half hours a day. Therefore, in the new version of the law, absence for 4 hours in a row and absence for 4 hours during the working day are considered grounds for dismissal. Thus, the following can be counted as absenteeism:

Absence on site for 4 hours or more without a valid reason, even if the employee is on the territory of the organization;
Leaving the workplace without warning the management about dismissal and failure to comply with the two-week notice period;
Leaving without warning on vacation or time off.

Regarding the last point, we can give an example from legal practice. Citizen N turned to his superiors with an application for time off in order to undergo a technical examination of the car. Having given preliminary consent, the boss noted that this issue was not within his competence and referred N to the head of the service, where employee N’s request was denied in the presence of witnesses.

Since N did not agree with the wording, and went to court with demands for compensation and reinstatement at work. His claim was not accepted, explaining that the reason he indicated was not so important that the employer was obliged to provide him with time off.

From this we can conclude that there are reasons why the management cannot refuse to provide an employee with time off and vacation. An employee, for example, cannot be denied this if he is a donor, since this point is stipulated by Art. 86 and the law on blood donation (a citizen has the right to a day off on the day after donating blood components or blood). Or, for example, leave must be granted to WWII participants (35 days without pay). However, the employer can choose a time convenient for himself.

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Intoxication

If an employee appears at the workplace in a state of intoxication, he must be removed from work. Moreover, according to the law, whether the suspension was carried out or not does not matter. The concept of “intoxication” is interpreted quite broadly, meaning not only alcoholic, but also drug or any toxic intoxication.

However, in relation to the employee, such a condition must be confirmed by medical workers who have the right to do so, either in a special room or outside, but with special equipment. If the incident occurs in a rural area where there are no specialized institutions, the examination can be carried out at a paramedic station.

It should be noted that the mere fact of drinking alcohol does not mean alcohol intoxication. Dismissal occurs only on the basis of intoxication. To be drunk, in the medical sense, is possible only in a state that occurs at a certain concentration of alcohol in the blood (0.5 ppm). This is equivalent to 0.5 liters of beer or 75 g of vodka in the blood of a person weighing 80 kg. An employee cannot be fired unless this standard is exceeded.

An employer cannot force an employee to undergo an examination, but can only invite him to do so. Moreover, the employee’s refusal can be interpreted as confirmation of guilt. Therefore, the employer often, and not always legally, forces the employee to undergo an examination. The most popular method is to call the police or ambulance.

The ambulance, which is also often called in this case, is not the place for the examination. Therefore, the actions of the doctor who agreed to the examination may be recognized by the court as unlawful. All this suggests that it is quite problematic to dismiss employees who abuse alcohol in the workplace, because it is difficult to collect all the necessary documents for dismissal for a one-time gross violation of discipline in this case.

Disclosure of secrets

About 20 state secrets are protected by law under Art. 283 of the Criminal Code of the Russian Federation. If we are talking about state secrets, then such dismissal most often turns out to be associated with imprisonment. In this case, only one question arises - to terminate the contract with the employee before the verdict is passed or after.

The law contains Art. 83, which justifies dismissal due to conviction. And theoretically it can be used. But there is Art. 81, where the reason is directly stated - disclosure of secrets. Therefore, the employer has the right to use a more convenient wording since the use of Art. 81 is not the employer’s obligation, but his right.

Theft

Theft, embezzlement, destruction of property or damage to it are administrative offenses. Any property that did not belong to the thief should be considered as someone else's property. To dismiss an employee on this basis, one must be guided by either a verdict or a resolution of the authorities that have the right to do so, and the place of the theft of property should only be the place of work.

For dismissal for this reason, it is enough that the competent authorities establish only the fact of theft; bringing employees to justice is not required for this. That is, an employee can be dismissed even if, for a number of reasons (repentance, compensation for losses, theft of property worth a penny, cancellation of a decision on administrative liability and other reasons), he does not bear responsibility for what was committed (Article 81, paragraph 6)

Details about the walk

Absence without reason for more than 4 hours.

If an employee was absent without a valid reason for the entire working day at the workplace, then such a circumstance shall be regarded as absenteeism.

In the outdated version of the Labor Code of the Russian Federation, absence from work for 4 hours or more was considered absenteeism, but when considering this provision, a small inaccuracy was made, namely, not all workers had a working day set at 4 hours. As a result of these circumstances, absence from work for 4 hours is considered absenteeism.

The reason for dismissal from the enterprise is:

The employee does not perform his job duties, even if he is present on the territory of the enterprise, and the manager cannot find him at this time;
Unauthorized departure from work without prior warning to the administration;
Late notification to the employer that you need to take time off. Time is given for two weeks so that the manager can correctly navigate and recalculate the workforce;
Going on trade union leave without the appropriate document in which it was necessary to sign;
Using previously worked time for personal needs without an officially completed application.

Disclosure of classified information

Some positions require familiarization with documents containing information about state secrets. Such employees are required to sign a non-disclosure agreement regarding information they learn in the workplace. When a manager suspects that a specialist is violating these requirements, he must initiate an independent audit. If its results confirm the fact of disclosure, then the employer must issue an order to immediately remove the employee from performance of official duties.

In addition to state secret information, there are trade secrets, as well as confidential information. Each specialist who has access to them due to work duties enters into a non-disclosure agreement with the employer on the information received. If the manager has reasons to believe that secret information has become known to third parties, then an investigation into this fact must be conducted.

Upon receipt of evidence of disclosure, the employer must decide whether to punish the employee. The legislation allows both the issuance of a reprimand and the termination of the contract with the entry of a dismissal record into the work book under Article 81, paragraph 6.

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Showing up to work drunk

There is a norm for the presence of alcohol in the blood.

According to labor legislation, intoxication can occur not only as a result of drinking alcoholic beverages, but also as a result of using narcotic and toxic drugs.

To accurately determine whether a person is drunk or not, it is necessary to conduct a medical examination. Based on the results of the examination, a decision is made on admission to work or removal from official duties.

With all this tough approach to resolving the issue, you should know that at the rate of 80 kg of mass if there is 0.5 ppm in a person’s blood, which is about half a liter of beer or 0.75 mg of vodka, the employee cannot be fired. If this dose is exceeded, then you should act in accordance with the letter of the law.

An important nuance: the manager cannot force the employee to undergo this examination, but the employee’s refusal also casts doubt on his condition.

Therefore, in practice it is quite difficult to fire a person for this violation; for this there must be compelling circumstances.

Dismissal for theft at work

This type of penalty can only be applied to persons whose commission of guilty actions in the workplace is confirmed by a court decision that has entered into force. In this case, the employee may be held liable for theft from the employer, another employee or another person who was on the territory of the organization.

Important

To apply such a punishment, the employer has a month from the date of entry into force of the relevant legal court decision. Similar requirements apply to cases of intentional embezzlement committed by an employee.

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Theft of property

It is necessary to prove the fact of theft.

Labor legislation states that theft of property is an administrative type of liability. An employee who is repeatedly caught doing this is subject to dismissal from the enterprise.

List of reasons for dismissal:

material damage amounted to an amount not exceeding the employee’s average monthly earnings. This circumstance was clarified after an independent examination. As a result, according to the issued administrative document, the amount determined by the commission is withheld from the employee’s salary;
the employee caused material damage to the employer in an amount exceeding his average monthly earnings. After an expert assessment, this fact was confirmed. According to the audit, the employer must go to court, where a decision will be made to withhold a certain amount from the employee’s salary;
the employee, as a result of his incompetence, allowed the loss of the employer’s property, which affected the cost of production. For example, he did not take measures to shut off the shut-off valves, and water flowed out of the tap in a large volume. This case needs to be proven, but it also relates to the loss of material assets.

Repeated theft or failure to comply with basic requirements that caused damage to the employer's property are grounds for dismissal, but only the employer can make this a reality; in this case, he resolves many issues, including those related to dismissal.

What violations serve as sufficient grounds for dismissal?

The list of personnel actions that the Labor Code of the Russian Federation classifies as gross misconduct includes:

Absenteeism;
Being drunk or under the influence of drugs at work;
Failure to comply with state or commercial secrets;
Theft on the premises of the tenant;
Failure to follow labor safety rules, which led to negative consequences;
Facts of immoral behavior of an employee engaged in educational work.

All of these facts may become sufficient grounds for termination of the employment contract with an employee at the initiative of the employer.

Violation of labor protection requirements

The employee must comply with occupational safety requirements.

Today, special attention is paid to occupational health and safety. The instructions clearly state what the employee must do and where he must not interfere.

In large organizational structures, additional standards for occupational safety and health can be developed, in which special attention is paid to violations of occupational safety. The system of labor protection conditions can work as follows:

The employee is reprimanded for failure to comply with basic requirements. This remark can be included in the list of comments at the first stage of control, and the employee must be familiarized with the specified defect against signature;
If the violation is repeated, the next step will be deprivation of bonuses. Everything is reflected in the administrative document for the enterprise, which also states that if further comments of the same nature are made, the employee will be dismissed;
If the remark is issued a third time, then documents for the dismissal of the employee are prepared and an Order is prepared.

For gross violations of labor safety requirements, both site managers and shop supervisors who issued an assignment that resulted in injury to an employee or death are fired.

An entire investigation is conducted and based on the results the manager is fired. In this case, an order for the enterprise is mandatory, after which all employees are familiarized with this document in order to prevent this situation from happening in the future.

Filling out a work book upon dismissal for violation

Prosecution for non-compliance with safety regulations and labor protection requirements is possible only if this fact led to an accident, injury at work, or created a real danger for such events at the enterprise.

In this case, the employee is obliged to adhere to labor protection rules on the basis of Art. 217 Labor Code of the Russian Federation. The violation must be recorded by the commission and confirmed by an act or an expert opinion signed by all members of the commission.

Reflection of the fact of termination of the employment contract in the book will depend on the grounds that served as the reason for parting with the employee. In column 1 the serial number of the entry is entered, in column 2 the date of its entry is indicated. The general scheme for entering information about dismissal in column 3 can be presented as follows:

“Dismissed for “reason stated” subp. “subparagraph” of clause 6 of Art. is indicated. 81 Labor Code of the Russian Federation"
“The employment contract was terminated for “reason given” subclause “reference to subclause” of clause 6 of Art. 81 Labor Code of the Russian Federation."

Both options will be correct and not contrary to current legislation. Column 4 provides the number and date of the order on the basis of which the entry was made. The person who entered the information about the dismissal in the work book also signs and deciphers it.

List of payments to a dismissed person for guilty actions

Upon termination of an employment contract, the employer is obliged to make a full settlement with the employee on his last working day (Article 140 of the Labor Code of the Russian Federation). In the event of termination of employment, the employee is entitled to:

Payment for the period actually worked in the month of dismissal;
Cash compensation for vacation days not taken by the dismissed person (Article 127 of the Labor Code of the Russian Federation).

If the employee did not go to work on the day of dismissal, the company is obliged to make a payment no later than the next day after the date of the employee’s request. If a dispute arises over the amount of payment, the organization is obliged to pay out the undisputed part of the amount.