Police will be able to shoot people without explanation

Author of the article: Anastasia Ivanova Last modified: January 2020 1117

If dismissal is carried out on the initiative of the manager, the employee has the right to know why such a decision was made. How the legal relationship between an employee and an employer is terminated is stated in Articles 77, 80, 81 and 278 of the Labor Code. If rights are violated, a citizen can contact the authorized bodies for protection. In this article we will talk in detail about the grounds on which an employee can be fired and what to do if they are fired without explanation.

List of grounds for dismissing an employee

You can terminate an employment contract (EA) with an employee for one of the following reasons (Article 77 of the Labor Code):

1. By agreement of the parties. Based on this motive, the parties have the right to terminate the employment relationship at a chosen time (Article 78 of the Labor Code).
2. The TD period has expired.
3. The employee took the initiative to terminate the contract (Article 80 of the Labor Code). Dismissal occurs at the employee's own request.
4. TD is terminated at the initiative of the employer. What exactly was the reason for the dismissal is stated in the order.
5. Refusal of an employee to continue working at this enterprise due to:

• change of subordination structure or ownership;
• changes to the requirements of the employment agreement previously determined by the parties;
• the need to transfer to another workplace due to the reasons described in the medical report. In addition, the employer may not have a suitable position.
• transfer of production to another area.

Important! An employer does not have the right to dismiss an employee without reason.

Myth No. 1. We will fire you for inadequacy of the position.

Grounds: clause 3 of Art. 81 of the Labor Code: “Inconsistency of an employee with the position held or the work performed due to insufficient qualifications confirmed by certification results.” How and for what can one be fired from a job with this wording?

How it should happen: It's not that easy to do. A certification commission must be created, which usually includes:

• deputy director of the organization;
• HR representative;
• the subject's immediate supervisor.

A special order is issued to conduct the certification commission. The subject is given a task that does not go beyond the scope of the job description corresponding to his position. Even if the members of the commission somehow agree among themselves and the task may be obviously impossible to complete, for example, in terms of deadlines, you can write a complaint to the labor inspectorate and challenge the results of the certification in court.

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A final report or protocol is drawn up on the results of the certification. But even after certification, dismissing an employee is not so easy. Dismissal is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer: both a vacant position or work that corresponds to the employee’s qualifications, and a vacant lower position or lower-paid work that he can perform taking into account his state of health.

The employer is obliged to offer all vacancies available in the local area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract. And only if the employee refuses in writing all the offers made to him, then the employer can fire him.

Is it legal to dismiss without reason?

The legislation provides an exhaustive list on the basis of which a manager dismisses an employee (Article 81 of the Labor Code):

In addition to those described above, there are some other grounds for dismissal. These include gross violations by the employee:

1. Disclosure of information designated as secret. The employee was warned about the fact of non-disclosure - he signed the relevant documents when hired.
2. Failure to comply with labor safety requirements. This can result in injury and death.
3. Theft of company property, valuable materials entrusted to an employee.

The presence of a list of grounds for termination of employment at the initiative of the employer once again confirms the fact that dismissal without explanation is illegal.

Safety issues in labor disputes

Most workers know where to go if they are fired from work without reason - to the labor inspectorate. At the same time, it is worth trying to neutralize the conflict, as well as insure against possible provocations. This will at least give you time to prepare to leave and find a new place. The main thing is not to give in to emotions and not to aggravate the situation with rash actions.

Here are some ways to stay safe:

• Behave politely, restrainedly, correctly.
• Avoid violations.
• Take a vacation.
• Take sick leave. This reliably protects against dismissal.
• If it comes to applying sanctions, you should require that complaints be submitted in writing, with specific references to the norms that are allegedly violated.
• Accurately follow all work-related requirements and instructions. This applies even to those items that have not been used in practice for a long time, but have not been officially canceled. For example, cleaning the workplace or filling out the accounting journal in a timely manner.
• Study labor legislation and motivate your actions with its provisions. Point them out to your superiors.
• Contact your immediate superior or get a meeting with a senior manager and try to clarify the situation and look for a compromise solution.
• When threats or illegal demands are made, it is better to record them on a voice recorder and make a copy of the recording. In the future, if the relevant authorities and the court have to be involved in the situation, this may play a significant role.
• If there is a trade union at the enterprise, it is necessary to contact it with an official statement. It is possible that he will take the employee’s side.
• Officially declare your intention to contact the supervisory authorities.

By showing an exemplary attitude towards fulfilling his job duties, an employee can convince an employer who is about to part with him. The need to document violations that actually do not exist can reduce the number of complaints from management.

Following simple rules can defuse the situation. If dismissal cannot be avoided, the person will have time to prepare an official basis for appealing to supervisory and other authorities.

What should an employee do upon dismissal - step-by-step instructions

An employee dismissed without explanation should not silently leave the company. He should fight for his rights and take a number of actions:

What are the consequences of dismissal without explanation for a manager, provided that it is declared illegal?

Example . The sales floor consultant, P.L. Sintsov, was fired immediately after returning from vacation. As soon as he appeared at the workplace, he was called to the personnel department and handed a dismissal order. The document did not indicate the reasons, only the date of termination of the employment relationship. Sintsov received a copy of the order and a work book. On the same day, he contacted the labor inspectorate and filed a lawsuit. The proceedings lasted 5 months. But the result was in favor of the dismissed person. The court ordered the employer:

1. Reinstate P.L. Sintsov at work.
2. Pay all legal costs.
3. Pay Sintsov his salary for all 5 months of forced absence.
4. Pay the employee moral damages in the amount of three average monthly salaries.

The labor inspectorate's inspection of the documentation of the company, the head of which fired Sintsov, found many errors and inaccuracies in personnel records and remuneration. As a result, a fine of 45 thousand rubles was imposed on the legal entity.

Signs of impending dismissal

An employer can terminate relations with an employee only in accordance with the standards prescribed in the Labor Code of the Russian Federation, taking into account the clauses of the collective and individual agreement. In reality, illegal dismissal without explanation is by no means uncommon. This is explained by the organization’s reluctance to lose money or personal reasons for which the employee no longer suits his boss.

determine that they are preparing to break up with a person without legal grounds by the following signs:

• Creating uncomfortable working conditions.
• Far-fetched demands, constant nagging and comments.
• Humiliation and insults, verbal reprimands in raised voices.
• Increased control and endless checks.
• Threats, moral and physical pressure.
• Demands to move to a lower paid job.
• Reduced salaries, delayed payments, lack of bonuses and allowances.
• Increasing responsibility and reducing powers.
• Fines and other penalties for any reason or without it.

All these factors may indicate that a person is being forced to write a letter of resignation of his own free will. They often openly say that they will fire him under an article that will make it impossible to get a job in the future, and the employee’s improper performance of his duties will be easily proven in court.

https://youtu.be/NgvpVnYzOdM

Grounds for dismissal for a manager

For managers heading an enterprise or company, the list of reasons for dismissal is somewhat broader. In addition to those listed above, there are the following reasons:

• decision of the board of directors, shareholders or founders of the company;
• ignoring the accepted ratio between the salary level of the manager and his subordinates;
• suspension due to the fact that the company declared its insolvency (bankruptcy).

Additional grounds are specified in the manager’s contract.

Inconsistency with the position held and loss of confidence

Of this long list, the most dangerous for employees can be considered inconsistency with the position held and loss of trust. Other guilty actions of the employee must have documentary evidence, and most citizens know about this. Therefore, they believe that it will not be possible to simply attribute absenteeism to the employer. But loss of trust is a subjective concept and does not require proof. Such a reason for dismissal in the application form can ruin your career.

In reality, everything is completely different. Loss of trust can only be a consequence of proven guilty actions of the employee. Therefore, the director cannot simply decide that he no longer trusts this person. Likewise, he cannot recognize that a person does not meet the requirements of a professional standard or position.

Features of dismissal of the head of the organization

The management of a company can be dismissed quite legally, without explaining the reasons for such an action (Article 268 of the Labor Code). Such a decision is made by a higher authority or board of directors-owners.

After a meeting of the board of directors or based on an executive document:

1. The head of the organization relinquishes his authority.
2. The dismissal order is issued by the council.

Dismissal is processed in several stages:

Important! You simply need to follow the procedure, which will turn the process of dismissing a manager without reason into a correct and legal action.

Form No. T-8_ Order to terminate an employment contract with an employee

Form No. T-61_ Calculation note upon termination of an employment contract with an employee

Where to contact an employee

When dismissing an employee, the employer must submit a dismissal order and make a corresponding entry in the work book with the exact wording of the reason for dismissal.

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The actual reason may be a “warm place” for his protégé, the employee may not know about it. It is much easier and cheaper to fire without explanation or for a “far-fetched” reason, roughly speaking, made up from thin air.

Why is it cheaper? Yes, because if you are fired due to redundancy, you will still need to pay money to the former employee. But he didn’t indicate a reason or fired for another reason - it turns out that you don’t need to pay anything!

In case of illegal dismissal, you should contact the authorities that regulate labor relations. Practice shows that they quite often take the side of the victim. There are several options for what to do if you are fired without reason:

• Apply to the labor inspectorate. The inspectorate is obliged to conduct an inspection and determine whether the dismissed person’s claims are real and whether the employer’s actions are legal. The organization may not comply with the decision of this authority, but it will be of great help in court.
• Write a statement to the prosecutor's office. The supervisory authority has the power to hold legal entities and their managers seriously liable, and can also act on the side of the victim in court. In addition, if it comes to illegal dismissals, there are probably other violations at the enterprise, and it will be easier for the employer to resolve the issue of payments or reinstatement than to attract unnecessary attention from the prosecutor’s office.
• File a claim in court. Here the employer will have to prove with documents in hand all the violations allegedly committed by the employee and motivate each step.
• Contact a reputable law firm. Here they will help with documents, write claims, draw up a claim and represent the interests of the victim in court.

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If the dismissal was an unreasonable whim due to the personal wishes of the manager, this will almost certainly come out during the proceedings. In this case, the authorities will help the worker in restoring his rights. This process, however, can be long, but it’s not only about money, but also about justice.

If you have doubts about the legality of the employer’s actions, you should not follow his lead. At a minimum, you can contact a lawyer - he will tell you what to do if you want to fire you from your job without reason. It is unlikely that it will be comfortable to work in the same place, but the chances of receiving various payments, including compensation for moral damage, are quite high.

Dismissal without explanation is impossible in 2020.

In accordance with Article 81 of the Labor Code of Russia, an employer has the right to dismiss an employee for the following reasons:

1. Upon liquidation of a company or upon termination of the organization's activities. A similar situation occurs during a company reorganization. But the employee may be offered a place to be transferred to another position. If they refuse, they are fired. Dismissal is inevitable only in case of complete liquidation.
2. If necessary, staff reductions. But only upon a written application and announcement of the upcoming action. A reduction does not imply a transfer if this is not a preferential category of citizens.
3. In case of inconsistency with the qualifications of the position held. If an employee does not want to improve his knowledge, he may be fired.
4. When the owner of the company's property changes. The new manager has the right to change the composition of the management position - accountant and deputy. The remaining employees remain guaranteed.
5. In case of violation of official duties. That is, coming to work while intoxicated, absenteeism, disseminating secret information, violating security requirements, theft.
6. When making a decision that resulted in a deterioration in the financial position of the company.
7. when performing inappropriate moral actions.
8. In case of violation of duties by management.

https://youtu.be/gcMocufLFVg

Dismissal without explanation can be applied to the grounds as an addition to which a manager can be dismissed. In other cases this is impossible.

Read about

dismissal of the LLC director on the initiative of the founder

.

How is salary paid upon dismissal? See here.

Head

In accordance with paragraph 2 of Article 278 of the Labor Code of Russia, management has the right to be dismissed without giving reasons only by decision of the authorized bodies or the owner.

But this type of dismissal must be carried out in accordance with all norms. In particular:

1. Termination of the contract is possible only by the body that hired him. That is, first there is a meeting of shareholders, and only then a dismissal order is issued. If it is a JSC or LLC, then a board of directors is additionally held. In a municipal organization, the owner makes the decision.
2. It is necessary to comply with the law regarding the holding of meetings. That is, a day, time and place are set, and all the necessary persons are notified to make a decision. All data is recorded in documents, and the number of those present at the council is indicated. Here it is also possible to consider a new candidate for the position.
3. On the last day, an order is issued, an act of acceptance and transfer, in which the manager and the enterprise sign.
4. Upon completion, a calculation is made in accordance with Article 278 of the Labor Code without giving reasons.

Employee

It is impossible to fire an employee without giving a reason. This is regulated by current legal acts, as well as basic laws.

An employee on a probationary period also cannot be fired without giving reasons. But if this is not provided for in the current employment contract signed by the employee.

You can often find a clause in this document about the company’s ability not to talk about the reasons for dismissal. A citizen simply resigns either of his own free will or under an article.

Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

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Since other grounds are illegal, dismissals are not allowed without explaining the reasons for these actions.

Attention

It is also illegal to dismiss someone from a probationary period without giving reasons.

But sometimes a company's right to fire in this way is established in the employment agreement itself. Acceptable reasons are listed in Article 81 of the Labor Code of the Russian Federation:

• Dissolution of an organization;
• Reduction in staff or numbers;
• Inconsistency of the employee with the position identified by certification;
• Ignoring work responsibilities;
• Absenteeism;
• Performing work duties in an improper condition - in case of intoxication with alcohol and other substances established by a medical worker;
• Other actions from Article 81.

It is obligatory for witnesses to record the listed guilty actions.

Important

Only a person holding a managerial position can be dismissed without explanation by law. This right for the employer is secured in the article

278 Labor Code of the Russian Federation

.

Some questions and answers

Question 1. Radionov P.R. was on a probationary period for 20 days and was dismissed without explanation. Did the employer act correctly?

Answer. Even if the employee is on a probationary period, he cannot be fired without giving reasons. Exception: the contract signed before the start of the probationary period provides for this situation. The document may contain a clause allowing the company management not to indicate the reasons for dismissal.

Question 2. Can an employer fail to comply with a court order obliging him to pay an illegally dismissed employee wages for the entire period of the litigation plus moral damages in the amount of 30% of earnings?

Answer. For such a violation, an administrative fine of 1,000-5,000 rubles is imposed on the manager, and on a legal entity - 30,000-50,000 thousand rubles. (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). After paying the fine, the employer is not exempt from payments ordered by the court.

Myth No. 4. Theft and embezzlement

Grounds: clause 6 of Art. 81 of the Labor Code of the Russian Federation: “Commitment at the place of work of theft (including small) of someone else’s property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses” .

How it should happen: it is already clear from the text of the law that in order to dismiss an employee on this basis, a court decision or a resolution of an authorized official is necessary. That is, an investigation needs to be carried out. In practice, an employee may be asked to leave quietly “of his own free will” so as not to make a fuss, which in various circumstances could affect the reputation of both the employee (even if he is not guilty of anything) and the organization.