Proper registration of employee dismissal in 2021 - grounds, procedure, nuances

The dismissal process can be easy or long, depending on the type of dismissal chosen, the presence of court proceedings or agreements between the employer and the quitter.

Dismissal from work can be of the following types: at the initiative of the employer or the employee himself, as well as by agreement of the parties.

In our article we will describe in detail the differences between different types of dismissals from enterprises and firms or organizations, as well as the dismissal procedure itself.

Legislative standards for dismissal

As Article No. 77 of the Labor Code of the Russian Federation states, the interruption of working relationships can take place either at the initiative of the employer or at the will of the employee. The parties can reach an agreement and end the working relationship by mutual consent. At the same time, the legislative act provides for a number of grounds for the annulment of the parties’ contractual obligations.

14 basic grounds for dismissing an employee

To approach the procedure for terminating a contract with an employee, we will first understand: what legal methods exist for dismissing a person from service, what are the pros and cons for both parties in these episodes.

Thus, there are objective and subjective justifications for dismissal at the initiative of the employer. External grounds independent of a person include the following options, specified in Article No. 81 of the Labor Code of the Russian Federation.

The first reason is the liquidation of the enterprise, closure, bankruptcy of the individual entrepreneur, and, as a consequence, the dissolution of all company employees. In this case, the enterprise is deprived of its legal status and completely ceases to exist without the prospect of continuing its activities. This process of terminating contractual obligations is regulated by Article No. 81 of the Labor Code of the Russian Federation (clause No. 1 of the first part).

In this scenario, hired employees must be notified in advance (at least 2 months in advance) of the termination of their employment relationship. An employer closing its business must pay each team member severance pay; employees receive additional preferences from the employment service.

Please know: it is impossible to legally terminate a contract with an employee who is on vacation or sick leave (even due to the liquidation of the company).

Secondly, staff reduction is a hot topic when, while optimizing the production process, the number of enterprises is reduced, ineffective workers are fired, and additional functions are assigned to the remaining employees. This can also happen when certain areas are closed or business is reorganized. This process is also regulated by Article No. 81 only by Part No. 2 of the Labor Code of the Russian Federation.

Therefore (similar to the first scenario), employees must:

• give 2 months notice about the upcoming layoff;
• pay all due compensation payments and compensation;
• report dismissals to the employment center;
• notify the organization's trade union.

Please note: there are several more pitfalls and legislative provisions that state that before making the final payment, the organization must offer the employee an alternative place on the staff. Moreover, it must be taken into account that there may be employees on staff who cannot be dismissed on this basis, for example, pregnant women.

If during the liquidation of an enterprise with the dismissal of employees everything is clear, then when reducing staff (or numbers) there are nuances

Another serious reason is a change of owner. Dismissal in this case most often concerns management personnel: directors of the company, their deputies, and chief accountant. But, as practice shows, this procedure also affects middle managers: departments, divisions, services.

I also had to face this situation not long ago. The owner of a large manufacturing company where I worked died of cancer, and after six months all powers passed to his two daughters. As soon as they took over the inheritance, a purge of the team began: the general director of the plant was the first to be fired, the head of the security service “left” on the same day, and a little later the chief accountant was fired. Over the next six months, the management team of the enterprise changed by 95%. Some left of their own free will: the situation at the plant was so tense that not everyone had enough stress resistance. Those who did not ask for anything left with nothing, we also had those, including directors, who apparently hoped that for their many years of work, the owners themselves would take the initiative and pay severance pay - but that was not the case. I wrote a statement by agreement of the parties, however, like probably 70% of all those who quit. In this case, there is at least a chance to agree on compensation (and a very good one). Know: if you are a lawyer for an organization, work at the SEB, or hold a position no lower than deputy chief accountant, the compensation increases significantly. I cheapened out by writing an application for compensation of only two salaries, then I only found out that people received half a million. The new general director, appointed by the new owners, wanted to get rid of the old team. After 9 months, there was no one left on the plant’s management team; positions were taken by relatives, an ex-husband who knew nothing about production, and other acquaintances. But a year later, the new “general’s wife” set off on a free voyage, apparently not living up to the owners’ expectations. It should be noted that, as a rule, a change of owner is always a difficult period for the company and the team, because people say: “a new broom sweeps in a new way.”

But let’s finish the lyrics, in addition to objective external reasons, dismissal at the initiative of the employer also has a subjective side. Reasons for terminating mutual obligations in this case include:

• employee inadequacy;
• neglect of labor discipline and interests of the employer;
• committing deliberate criminal steps in the workplace.

The fourth serious reason for breaking a working relationship is the inadequacy (full or partial) of an employee for his position, his incompetence in performing his duties (Article No. 81, paragraph 3). Most often, this is confirmed by the results of the certification commission initiated by the employer. The reason for removing a person from his position may also be his state of health. It is clear that this method is quite slippery for the employer and aggressive towards the person against whom it is directed. You need to be especially careful here.

It should be taken into account that in this case, as in the option of staff reduction (clause 2), the employer is obliged to offer the employee another place, as is usually the case - a lower-ranking and lower-paid position.

One of the easiest reasons for dismissal for an employer is serious violations of labor discipline by an employee, even one-time violations. There is a whole block of justifications for the decision to part with an employee. Legislatively established procedures are prescribed in Article No. 81 of the Labor Code of the Russian Federation, paragraph No. 6:

• Absenteeism - if an employee is absent from the workplace without a valid reason for more than four hours, he can be immediately dismissed “under the article” (clause 6, subclause “a”). At the same time, the period given to the employer for dismissal under this article is 1 month from the date of its commission.
• Being at work while intoxicated or under the influence of drugs or other substances. In this situation, dismissal takes place in accordance with subparagraph “b”: if possible, a medical examination is carried out, a report is drawn up and endorsed, etc.
• In the case when an employee deliberately ignores the rules and regulations of labor protection, which can lead to serious consequences both for the organization and for the lives of colleagues (such offenses are recorded by a special commission on labor protection, which should be in every enterprise with 10 or more people).
• An employee can be fired if he discloses a trade secret that he learned while performing his official duties, especially if it caused financial harm to the organization.
• Failure by an employee to fulfill his job functions if his record already includes disciplinary sanctions.
• There are special cases, for example, when a teacher, educator or coach, working with children, commits immoral offenses that are incompatible with his status.

The next block, when the employer is forced to fire employees , is the commission of intentional criminal acts by the hired employee against the employer:

• waste of funds, damage to the property of the enterprise and theft at the company are those actions that entail damage to the company.
• Loss of trust (clause 7 of the first part of Article No. 81) - this point concerns persons who caused or could cause damage to the employer while in certain positions that imply material liability.
• Another point on which to terminate a contract with an employee is providing false information about yourself or fictitious documents during employment.

Popularly, the above subjective variations of dismissal are called “under article”, which during subsequent employment can greatly affect both salary and job responsibilities. And often people with similar marks on their employment records are simply not hired.

Dismissal due to non-compliance and under the article is usually difficult not only for the employee, but also for the employer

There is another way to cancel obligations between an employer and an employee, which stands apart in the list of grounds for leaving - this is termination of the contract on the grounds provided for in clause No. 5 of part 1 of Article No. 77 of the Labor Code of the Russian Federation. The so-called dismissal of an employee by transfer, when a tripartite agreement is concluded between the previous and new employer and employee on his guaranteed employment. In this case, there are 2 scenarios:

• Transfer from one employer to another at the initiative of the employee. When a person finds new, more interesting working conditions and wages, and employers who are loyal to a good employee meet him halfway and simply re-register the documents.
• Transfer at the request of both employers, when, for example, one of the employers is reducing staffing and wants to employ good employees, including for reasons of its own savings (no need to pay severance pay). Or the second case is the owner of an enterprise to open a new one, but at the same time he wants to keep the employees.

Video: termination at the initiative of the organization - legal advice

Dismissal at the initiative of the employee - what does Art. 80 of the Criminal Code of the Russian Federation

There can be many reasons for dismissal; the legislation classifies these grounds as follows:

• impossibility of carrying out labor activities in the workplace: admission to a university or other educational institution;
• conscription into the army;
• approaching retirement age;
• physiological disability of the employee;
• death or absence of an employee for unknown reasons;

In the above cases, the employer is obliged to terminate the employment contract within the period specified in the employee’s application.

Issues of termination of labor relations between an enterprise and an employee at the will of the employee are regulated by Article No. 80 of the Labor Code of the Russian Federation, the key points of this legislative act are as follows:

• The first thing that this document regulates is that every person has the right to terminate a contract with an employer after a written warning to the employer no later than 14 calendar days. The countdown of the working period begins the next day after submitting the application for dismissal. This can also be done while on vacation, sick leave, etc.
• To leave before the deadline, you need to negotiate with the employer. If the employee’s immediate supervisor and the director of the organization consider it possible to release the employee without work, this can be done the very next day.
• The second requirement of the law is that until 14 days have passed when a person transfers cases, the employee has the right to withdraw his application at any time. Termination of the employment contract in this case does not apply. But there is an important point in this case: an employee can be left at work only when another employee is not invited to his position, and this fact must be confirmed by documents.
• You can refuse to quit your job without withdrawing your application. To do this, it is enough to go to your workplace on the fifteenth day after providing the paper to the employer. If after 14 days the order to terminate the employment contract has not been endorsed by both parties and the employee does not demand dismissal, then the employment agreement continues.

The fundamental point for an employer when dismissing an employee, regardless of the reason, is that on the last day of the person’s presence at the workplace, the employer is obliged to issue him a work book and pay him in full.

An employee, when filing a resignation letter, is not required to indicate the reason for leaving.

A package of documents issued to the employee

A detailed list of the set of documents to be issued upon dismissal is as follows:

• a dismissal order is the main basis for terminating an employment contract;
• work book with the correct entry, which indicates the reason for dismissal with reference to the relevant articles of the Labor Code of the Russian Federation;
• certificate in form 2-NDFL for the period worked (the number of copies is not limited, within reason, of course);
• certificate of salary and days of incapacity for work 3 months before dismissal for the employment service (this is a separate certificate, 2-NDFL is not suitable for the exchange);
• salary certificate in form 182N;
• if, upon hiring, an employee handed over a medical book to the employer, it will need to be returned;
• a person has the right to request from the employer extracts from the reporting on insurance premiums (SZV-experience, SZV-M);
• data on vacations granted;
• a copy of the order for employment and internal transfers (if any);
• other documents related to work issues, for example, if the employer has original certificates of training, etc. in the employee’s personal file;
• a person can request letters of recommendation from a manager to present at an interview.

Please know: salary certificates and other documents related to the performance of job duties must be provided upon the employee’s written request within three working days.

When terminating the contract, it is better for the employee to request the most complete package of certificates and documents; who knows which of them may be needed when applying for a pension or confirming work experience

What entry is made in the labor record?

The dismissal of an employee is accompanied by an entry in his work book. As a rule, filling out this document does not cause difficulties. A correct entry will not raise additional questions from either the tax or labor inspectorates.

Filling out the book when leaving at your own request occurs according to the following algorithm:

1. The serial number of the record is indicated.
2. The date of dismissal is indicated.
3. The basis for dismissal is written, referring to the legislation (clause 3 of Article 77 of the Labor Code of the Russian Federation or Article 80 of the Labor Code of the Russian Federation).
4. The details of the issued order to terminate the employment contract are recorded.
5. The signature of the personnel service employee (the head of the organization), as well as the dismissed employee, is affixed upon receipt of the book, which indicates that the entry made is recognized as correct.

Important

It is unacceptable to make abbreviations in the work book. For example, writing paragraph 3 of Art. 77 of the Labor Code will be considered incorrect. All words should be written in full: paragraph 3 of Article 77 of the Labor Code of the Russian Federation.

Sample entry in the work book:

How should an employee transfer matters?

As a rule, all resigning employees sign a leave form on their last working day. The list of employees who must endorse this form is established depending on their job responsibilities, for example, if a manager constantly works at a computer, the list, in addition to the immediate supervisor, will include the head of the IT service, if the employee was provided with special clothing - a storekeeper, etc.

Usually, all the details of the transfer of affairs when a person leaves a permanent place of work are regulated in internal regulations and company instructions.

The main documents here could be:

• regulations on the procedure for accepting and transferring cases upon dismissal;
• instructions for conducting an inventory.

When dismissing materially responsible persons, the employer has the right to take over the cases after conducting an inventory, checking the reporting and safety of property.

If another employee is not hired for the position, everything is transferred to the immediate supervisor or an authorized person.

Please know: the employer does not have the right to call the dismissed person to transfer affairs after the termination of the employment relationship.

Normative base

The basic document regulating the issues of employment and its termination is the Labor Code of the Russian Federation. On its basis, government decrees and orders of other authorities are issued. They do not have separate legal norms, but only take into account the specifics of a particular area of ​​work within the framework of general labor legislation.

It should be noted that certain labor relations standards may be regulated by special laws. For example, activities related to public service issues, military service, and law enforcement activities. They all have certain specifics.

Some documents, such as the internal regulations of the enterprise, are regulated by the company's collective agreement. Moreover, even when considered in court, this document has legal force.

Special attention should be paid to local documents signed directly by the employer and employee. This is an order of appointment to a position, an employment contract, a job description. They also directly determine the future scope of the worker’s activities and must be carried out in full.

Remember, at the legislative level, the basic document regulating labor relations is the Labor Code of the Russian Federation (for law enforcement agencies and civil servants - their special laws). In addition, you must carefully read all the documents that you sign together with your employer.

Archiving an employee’s personal file upon dismissal

Maintaining personal files of employees is not a mandatory procedure for business; it is the prerogative of government agencies and departments. Therefore, small and medium-sized businesses, most often, do without maintaining this kind of document flow or are limited to opening personal files only for certain employees:

• TOP management;
• middle managers;
• employees burdened with financial liability;
• employees who can expect serious career growth.

Such a dossier is drawn up upon hiring and is supplemented with documents as they are received; after the employee’s dismissal, the personal file is archived.

Each case is placed in a separate folder or file; the employee’s full name, start date and end date are written on the title page.

Only the most important documents with personal data of employees should be stored here, usually this list includes:

• register of personal documents;
• application form according to the enterprise form, which is filled out upon admission;
• photocopy of passport (main page and stamp with registration at place of residence);
• copy of TIN;
• copy of SNILS;
• copy of military ID (for men);
• copy of diploma, other educational documents;
• employee photo;
• if available, a reference from the previous place of service;
• employment application;
• a copy of the employment order;
• a copy of the employment contract and job description;
• a copy of the application and order of dismissal.

Storing employee files is a responsible undertaking, since personal files contain confidential data about a person. Therefore, if it is customary for an organization to maintain a personal archive, it must be organized in accordance with the requirements for archiving personal data: a separate room or a fireproof locker-safe with a key.

Employees' personal files must be kept in the employer's archives for at least 50 years. But in order not to be held responsible for a person’s personal data, upon dismissal, the employer has the right to give all copies to the person, leaving only the originals in the folder.