Dismissal of an employee due to repeated failure to fulfill his labor duties. Recording in labor. There are two disciplinary actions. What's next

Because Art. 192 of the Labor Code classifies dismissal for violation labor discipline to a measure of disciplinary action, then dismissal for repeated violation job duties possibly subject to the rules established for the imposition of disciplinary sanctions. Dismissal under paragraph 5 of Art. 81 of the Labor Code is lawful when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of the duties imposed by the labor regulations; 2) failure to fulfill these obligations under disrespectful reasons, i.e. committed unlawfully intentionally or by negligence; 3) repeated culpable violation of labor duties, i.e. disciplinary offense it takes place not for the first time, for which a disciplinary measure was applied to the employee earlier (during the last working year); 4) a specific offense before dismissal, from the moment of which more than a month has not passed.

In the resolution of the Plenum Supreme Court RF No. 16 of December 22, 1992 states (paragraph 24) that a violation of labor discipline is a failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of internal labor regulations, job descriptions, regulations, orders of the administration, technical rules etc.).
Such violations, in particular, include;

A) the absence of an employee without good reason at work up to four hours during the working day, finding him not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;

B) the refusal of the employee without good reason to comply with the new labor standards amended in the prescribed manner;

C) refusal or evasion without good reason from the medical examination of the employee, for which it is mandatory, as well as the refusal of the employee to pass work time special education and passing exams in safety and operating rules, for which this is a prerequisite for admission to work.



Dismissal is possible in compliance with the terms and procedure established by Art. 193 of the Labor Code (no later than one month from the date of discovery and no later than six months from the date of the misconduct, and based on the results of an audit or audit financially - economic activity- no later than two years from the date of commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., according to clauses 5, 6, 8, 10 and 11 of article 81 of the Labor Code).

Clause 6. A single gross violation of labor duties by an employee. (Article 81 of the Labor Code).

This basis for dismissal contains five subparagraphs indicating a specific gross disciplinary offense that entails the dismissal of an employee, to which references are made in the order and work book.

BUT) absenteeism (absence from work without good reason for more than four consecutive hours during the working day);

B) appearing at work in a state of alcoholic, narcotic or other toxic intoxication;

IN) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties;

G) committing at the place of work theft (including small) of another's property, its deliberate destruction or damage, embezzlement, established by a court verdict that has entered into legal force or a decision of a body authorized to apply an administrative penalty;

D) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created real threat occurrence of such consequences. This is a new (as well as subparagraph “c”) basis for dismissal, which was not contained in the previous Code of Labor Laws.

Valid reasons for non-attendance at work include circumstances confirmed by documents or testimonies such as illness (even in the absence of a sick leave), illness of a child, transport delays due to accidents, natural disasters, participation of a citizen in saving people and property, passing exams, tests without proper formalization of study leave, refusal of illegal transfer and absenteeism in connection with this new job and etc.

Clause 7. the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer (Article 81 of the Labor Code).

On this basis, a special subject is subject to dismissal, i.e. an employee directly serving monetary or commodity values. The Supreme Court of the Russian Federation in Resolution No. 16 of December 22, 1992 clarified that these include employees who receive, store, transport, distribute and other actions with material values(for example, a cashier, a warehouse manager, a salesperson). Most often in trade organizations under paragraph 7 of Art. 81 of the Labor Code dismiss sellers for deceiving buyers when calculating, underweight, selling goods without cash receipts. It should be borne in mind that the loss of confidence in the employee on the part of the employer must be based on reliable data giving the right to dismissal. In the absence of the employee's fault, dismissal is unacceptable on this basis.

2.8. Clause 8. The commission of an immoral offense by an employee performing educational functions is incompatible with the continuation of this work (Article 81 of the Labor Code). The law does not establish a circle of persons subject to dismissal under paragraph 8 of Art. 81 TK. An approximate list of such persons is given in the resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 of December 22, 1992. These are teachers, teachers of educational institutions, masters of industrial training, educators of children's institutions and other persons performing educational functions. In a broad sense, an immoral offense is an act that violates the moral foundations of society. An immoral offense is a guilty action (inaction) that violates the basic moral standards society and contrary to the content of the service-labor function and thereby discrediting the service-educational, official powers of the relevant circle of persons.

For the dismissal of employees under paragraph 8 of Art. 81 of the Labor Code does not require the repeated commission of immoral offenses. An employment contract can also be terminated for a single immoral offense. Dismissal on the specified grounds (as well as under paragraph 7 of Article 81 of the Labor Code) is now a disciplinary measure, and therefore it complies with specific deadlines (Article 183 of the Labor Code), during which an employee performing educational functions can be dismissed from work . 2.9. Clause 9. Acceptance of the groundlessness of the decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization (Article 81 of the Labor Code). This paragraph concerns three categories of workers; heads of organizations (heads of branches and representative offices), their deputies and chief accountants of organizations. Consequently, a special subject acts on this basis for dismissal, since other employees cannot be dismissed under paragraph 9 of Art. 81 TK. If the adoption of an unreasonable decision did not entail the consequences indicated in paragraph 9, then there are no grounds for the dismissal of the persons listed above. It should be borne in mind that an unreasonable decision must be specific.

2.10. Clause 10. A single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties (Article 81TK).

Heads of branches and representative offices are appointed by the legal entity - the founder and act under his power of attorney. Paragraph 10 of Art. 81 of the Labor Code applies only to the heads of organizations, structural divisions and to their deputies.

Such an increased responsibility of this category of persons is due to their special legal status. They occupy positions in the management of production and labor, associated with power-administrative powers and with a special character. official functions. One gross violation by the head of the organization or his deputy of official duties can cause great harm to the entire organization.

Paragraph 10 of Art. 81 of the Labor Code does not apply to employees who are subject to charters and discipline regulations, since the latter provide for specific misconduct for which employees can be dismissed. In such cases, reference is made to the article of the charter on discipline, and not to this paragraph, since it applies only to the heads of organizations (their separate divisions) and their deputies.

2.11. Clause 11. Submission by the employee to the employer of forged documents or knowingly false information at the conclusion employment contract(Article 81 of the Labor Code).

This paragraph filled a gap that existed in the previous Labor Code. The employer is obliged to prove the deliberate falsity of the documents or information submitted by the employee when hiring. It seems that he should also justify that false information may affect the work this person. For example, if a woman, exhausted by unemployment, hid when applying for a job that she had a young daughter, then it would hardly be fair to fire her for this.

2.12. Clause 12. Termination of access to state secrets, if the work performed requires access to state secrets (Article 81 of the Labor Code).
According to the previous legislation (clause 2 of article 33 of the Labor Code), the employment contract in this case was terminated due to the employee’s inconsistency with the position held or the work performed, while maintaining certain guarantees (during transfer, payment of severance pay, etc.), which is not provided for in clause 12 Art. 81 TK.

2.13. Clause 13. Termination of the employment contract in cases provided for by the employment contract with the head of the organization, members of the collegiate executive body organizations (Article 81 of the Labor Code).

The previous Code of Labor Laws (clause 4, article 254) provided for such a basis only for the head of the organization. The Labor Code supplemented it with members of the collegial executive body of the organization. At the same time, this ground for dismissal is called in the order and work book of the head with reference to paragraph 13 of Art. 81 of the Labor Code and the relevant paragraph of his employment contract, indicating the specific reasons for this dismissal.

2.14. Clause 14. (Article 81 of the Labor Code).
Reference - it provides for the termination of the employment contract at the initiative of the employer in other cases established by the Labor Code and other federal laws.

In such cases, these grounds are not indicated with reference to paragraph 14 of Art. 81 of the Labor Code, but on the norm of the Labor Code or a specific law providing for such a basis.

In section
XII
TC for some workers other additional grounds for their dismissal are provided. Yes, Art. 278 of the Labor Code indicates two new additional grounds for terminating an employment contract with the head of the organization;

1) in connection with the dismissal of the head of the organization - the debtor in accordance with the legislation on insolvency (bankruptcy);

2) in connection with the adoption by the authorized body legal entity or by the owner of the property of the organization, or by the person (body) authorized by the owner of the decision on the early termination of the employment contract. With this ground for early dismissal of the manager in the absence of his guilty actions (inaction), he is paid compensation for the early termination of the employment contract with him in the amount determined by the employment contract. (Article 279 of the Labor Code).

The head of the organization himself has the right to terminate the employment contract ahead of schedule by notifying the employer in writing no later than one month in advance. With the head of the organization in accordance with Art. 275 of the Labor Code, an employment contract is always concluded for a period established founding documents organization or by agreement of the parties.

An employee who works for an employer individual and also a homemaker may be dismissed on the grounds provided for in the employment contract (Articles 307, 312 of the Labor Code). The severance pay upon dismissal of these employees and the warning period are established by the employment contract. The same applies to employees. religious organizations(Article 347 of the Labor Code).

A task

When compiling the annual report, the economist Krylova made a gross mistake, for which she was fired by the employer under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation. Krylova appealed the dismissal in court, referring to statement of claim that she has been working in this organization for about 5 years, was repeatedly awarded and had gratitude for Good work, and the mistake was made by her for the first time. Under what conditions is dismissal allowed under paragraph 3 of Art. 81 of the Labor Code of the Russian Federation? What decision will the court make in this case?

According to paragraph 3-b of Art. 81 dismissal is lawful if the employee is found to be inconsistent with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification. At the same time, insufficient qualifications should be established on the basis of objective data obtained as a result of the employee's certification.

Certification is mandatory; for this purpose, a
certifying commission. The procedure and conditions for conducting attestation are determined by the relevant regulation approved by the head of the organization, if a certain procedure and conditions are not established for a particular category of employees by special regulatory legal acts.

Dismissal is allowed, in accordance with part 2 of article 81, if it is impossible to transfer the employee with his consent to another job. Without compliance with this condition, the dismissal cannot be recognized as legal.

For the dismissal on this basis of an employee who is a member of a trade union, a reasoned opinion of the relevant elected trade union body is also required. According to article 82 of the Labor Code: Upon dismissal of employees who are members of a trade union, during certification to the composition of the certification commission in without fail a member of the commission from the relevant elected trade union body is included.

Based on the conditions of the problem, certification was not carried out. In this case, the dismissal will be declared illegal by the court and Krylova will be reinstated at her former place of work. If we assume that Krylova was a member of a trade union, then it was also necessary to obtain a reasoned opinion from the trade union body on her dismissal. This, apparently, was not done either.

On the basis of Article 394 of the Labor Code, Krylova must be reinstated in her previous job. Krylova must pay average earnings for the duration of the forced absence. If the incorrect wording of the reason for dismissal prevented Krylova from entering another job, then the court will decide on the payment of Krylova's average earnings for the entire time of forced absenteeism. The court, at the request of Krylova, may also decide on compensation for monetary compensation for moral damage caused by illegal dismissal. According to Krylova's statement, the wording of the grounds for dismissal may be changed to dismissal for own will(if Krylova has no desire to restore her previous job). According to Article 396 of the Labor Code, the decision to reinstate the illegally dismissed Krylova at work is subject to immediate execution. If the employer delays the execution of such a decision, the court will issue a ruling on the payment of Krylova for the entire time of the delay in the execution of the decision of average earnings.

Test : Does an employer have the right to temporarily transfer an employee to a job that requires lower qualifications?

Choose the correct answer: a) yes, he has the right to translate in all cases; b) such a transfer is illegal; c) may, but only with the written consent of the employee.

in) can, but only with the written consent of the employee.
An employee can be transferred to work requiring lower qualifications only with his written consent (according to part 3 of article 74 of the Labor Code). If the work of the employee's qualifications corresponds, his consent to a temporary transfer is not required.

One of the grounds for dismissal at the initiative of the employer is dismissal due to repeated failure to perform labor duties, if the employee has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation). However, when terminating an employment contract on this basis, the employer often makes mistakes, due to which the employee can be reinstated in his previous position. In the article, we will consider in detail the procedure for dismissing a negligent employee, and also focus on its individual points.

Instead of a preface

First of all, it is necessary to determine what constitutes non-fulfillment of labor duties. The main duties of the employee are set Art. 21 Labor Code of the Russian Federation. In more detail, labor functions are prescribed in employment contracts and job descriptions. Note that certain labor functions can also be fixed in other acts of the employer (for example, in orders).

Naturally, the employee must be familiarized with his duties under the signature. In particular, Art. 68 Labor Code of the Russian Federation requires the employee to familiarize himself with the internal labor regulations, other local regulations directly related to the labor activity of the employee, the collective agreement. From this we can conclude that if the employment contract contains only the name of the position or profession (type of work), but the functions are not specified, and the employer forgot to familiarize him with the job description, then bring him to disciplinary responsibility for failure to perform labor duties (and even more so dismiss on Clause 5. Part 1 of Art. 81 of the Labor Code of the Russian Federation) would be very problematic. This conclusion is confirmed and judicial practice. Thus, the Perm Regional Court in Ruling dated 05/14/2014 in case No.  33-4192 declared illegal the orders to impose a penalty and reinstated the employee in his previous position, and also recovered wages for the time of forced absenteeism and compensation for non-pecuniary damage due to the fact that in the absence of job description and official introduction to their official duties it is impossible to establish the scope of the plaintiff's duties and to charge him with failure to fulfill his duties.

Is it possible to consider being late for work as non-fulfillment of labor duties? Yes, you can. The GIT in St. Petersburg explained: since the employee is obliged to comply with the internal labor regulations, being late can be recognized as a violation of labor discipline, for which the employer has the right to bring the employee to disciplinary responsibility, and in case of repeated delay, even dismiss him.

In addition, according to clause 35 of Resolution No.  2 non-performance by an employee without good reason is a failure to perform labor duties or improper performance due to the fault of an employee of labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).P.).

Such violations include, in particular:

a) the absence of an employee without good reason at work or workplace;

b) the refusal of the employee without good reason to perform labor duties in connection with a change in the established procedure of labor standards ( Art. 162 Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function defined by this contract, to comply with the internal labor regulations in force in the organization ( Art. 56 Labor Code of the Russian Federation).

We also note that the dismissal p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation is a measure of disciplinary responsibility, which means that the employer is obliged to comply with the procedure for bringing to such, established Art. 192, 193 Labor Code of the Russian Federation.

So, the Plenum of the Armed Forces of the Russian Federation in Decree No.  2 pointed out: when resolving disputes of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without valid reasons, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment of labor duties by him without valid reasons, it has not been removed and not redeemed.

Note that if the disciplinary sanction is lifted or the employee violated labor discipline for the first time, then dismissal p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation is likely to be declared illegal. For example, the Moscow Regional Court, reinstating the employee at work, indicated that the dismissal procedure was violated, since the employee violated labor duties once, that is, there is no repetition ( Appeal ruling dated 04.06.2014 in case No.  33-12256/2014 ).

According to part 2 p. 33Decrees No.  2 applying a new disciplinary sanction to an employee, including dismissal for p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation, is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction on him.

note

It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee even when, before committing the misconduct, he filed an application for termination of the employment contract on his own initiative, since the employment relationship in this case is terminated only after the notice period for dismissal expires.

Procedure for terminating an employment contract

So, when an employee commits a disciplinary offense (that is, when he fails to fulfill his labor duties) and if he wants to dismiss such an employee, the employer should first check the existence of a valid disciplinary sanction (find out whether it has been removed or extinguished), as well as the legality of its application (established whether the labor duty, for non-fulfillment of which the employee was sanctioned, was properly executed, whether the procedure for bringing to disciplinary responsibility was observed). For example, an employee was reinstated in his previous position and wages were collected from the employer for the time of forced absenteeism, since the disciplinary sanctions previously applied to the plaintiff at the time of his failure to fulfill his labor duties without good reason were removed and repaid ( Appeal ruling of the Murmansk Regional Court dated May 14, 2014 No.  33-1329 ).

For your information

According to Art. 194 Labor Code of the Russian Federation If, within a year from the date of application of the disciplinary sanction, the employee is not subjected to a new disciplinary sanction, he is considered not to have had a disciplinary sanction. The employer, before the expiration of a year from the date of application of a disciplinary sanction, has the right to remove it from the employee on his own initiative, at the request of the employee himself, at the request of his immediate supervisor or the representative body of employees.

1. We fix the non-fulfillment of labor duties by the employee. Usually this is done by an act, service or memorandum. All documents confirming the employee's failure to fulfill his duties must be registered in the manner prescribed by the employer. Let's take an example of such an act.

Society with limited liability"September"

about non-fulfilment of labor duties

I, the head of the marketing department Igor Mikhailovich Dubinin, in the presence of the senior marketer Anna Viktorovna Berezina and the brand manager Oksana Ivanovna Lipova, have drawn up this act on the following.

On August 4, 2014, the head of the marketing department, marketer Oleg Petrovich Ivin, was instructed to collect information from consumers on product satisfaction, claims and complaints about products. The report was due on August 11th. Contrary to the requirements of clauses 2.5 and 2.7 of the job description, Ivin O.P. did not carry out the named actions to study the demand for goods and submit reports, as determined by the job description, and did not submit a report.

O. P. Ivin, a marketer, failed to fulfill his official duties, which led to a decrease in the number of buyers, which led to a decrease in sales.

Ivin O.P. was asked to give written explanation what happened.

We confirm the above facts with our signatures:

Dubinin I. M. Dubinin

Berezina A.V. Berezina

Lipova O. I. Lipova

Ivin O.P. refused to sign this act, motivating his refusal by the absence of guilt.

2. Asking for an explanation about non-fulfilment of duties. This is best done in writing, although there is no such requirement. We recommend that you request these explanations in writing so that later, in the event of a labor dispute, the employer can prove that the disciplinary procedure was followed.

So, the notice of the need to provide explanations must be prepared in two copies: the employer hands one copy of the notice to the employee, and on the second copy (employer's copy), the employee writes that he has read the notice, received one copy, puts the date of receipt and signature.

If the employee provides a written explanation, it is considered by the employer and registered in the appropriate register in accordance with the procedure established by him. If, after two working days, the specified explanation is not provided by the employee, an appropriate act is drawn up ( Part 1 Art. 193 Labor Code of the Russian Federation). Note that if the employee did not provide an explanation, this is not an obstacle to the application of the penalty.

If an explanatory note is nevertheless provided, it is necessary to check the validity of the reason for the employee's failure to fulfill his labor duties.

In addition, it is necessary to take into account all the circumstances of a disciplinary offense: the fault of the employee, the severity of the offense, the circumstances of its commission, the previous behavior of the employee and his attitude to work. For example, in Determination of the St. Petersburg City Court dated 04.07.2013 No.  33-9355/2013 employee dismissal order P.5 hours 1 art. 81 of the Labor Code of the Russian Federation was declared illegal because the employer did not provide evidence that the employee’s repeated lateness had adverse consequences for the organization, that is, when deciding on dismissal, the severity of the misconduct, as well as the employee’s previous behavior, were not taken into account.

If, after considering all the circumstances of the misconduct, the employer decides to simply punish the employee, an order is issued for disciplinary action (reprimand or remark).

The case when the decision to dismiss the employee is made, we will consider further.

3. We check the deadlines set for the application of a disciplinary sanction. According to part 3,4 tbsp. 193 Labor Code of the Russian Federation a disciplinary sanction is applied no later than one month from the date of detection of the misconduct, not counting the time of the employee's illness, his stay on vacation, as well as the time necessary to take into account the opinion of the representative body of employees. Recall that due to paragraph 34 of Resolution No.  2 the day when the misdemeanor is discovered, from which the monthly period begins, is the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions.

Within a month for the application of a disciplinary sanction, the following shall not be counted:

  1. the time of illness of the employee and his stay on vacation;
  2. the time required to comply with the procedure for taking into account the opinion of the representative body of employees.
The absence of an employee for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational work method), does not interrupt the specified period.

One more point must be remembered: a penalty cannot be applied later than six months from the date the employee committed a misconduct, and based on the results of an audit, audit of financial and economic activities or an audit, later than two years from the date of its commission. The above time limits do not include the time of criminal proceedings.

Compliance with the deadlines for the application of punishment is very important: if they are violated, the restoration of the employee will be inevitable, even if he really does not fulfill his labor duties. Thus, the employee’s claim to recognize the dismissal as illegal was satisfied due to a violation of the procedure for bringing to disciplinary responsibility: the penalty was imposed by the employer after one month from the date of discovery of the disciplinary offense ( Appeal ruling of the Supreme Court of the Komi Republic dated June 26, 2014 in case No.  33-3047/2014 ).

4. We check whether the employee belongs to the category of workers who cannot be fired at the initiative of the employer. Recall that according to Part 6 Art. 81 of the Labor Code of the Russian Federation it is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of the organization or termination of activities individual entrepreneur) during the period of his temporary disability and during the period of the employee's vacation.

By virtue of Part 1 Art. 261 of the Labor Code of the Russian Federation termination of an employment contract at the initiative of the employer with a pregnant woman is not allowed, except in cases of liquidation of the organization or termination of activity by an individual entrepreneur.

So, the employee was reinstated at work, since his dismissal was made during his temporary disability ( The appeal ruling of the Krasnoyarsk Regional Court dated May 21, 2014 in case No.  33-4103А-09).

5. We issue a dismissal order. The termination of an employment contract is formalized by an order (instruction) of the employer ( Part 1 Art. 84.1 of the Labor Code of the Russian Federation). With such an order, the employee must be familiarized with the signature. If this is not possible (the employee is absent or refuses to get acquainted with the order), a corresponding entry is made on the order.

In addition, according to Part 6 Art. 193 Labor Code of the Russian Federation if the employee refuses to get acquainted with the order, it is necessary to draw up an appropriate act.

As a basis for dismissal, the order must indicate the details of the previous order on the application of disciplinary measures to the employee, as well as documents confirming his next failure to fulfill his labor duties (memos, acts, etc.).

6. We make an entry in work book. According to clause 5.3 Instructions for filling out work books approved Decree of the Ministry of Labor of the Russian Federation dated 10.10.2003 No.  69 , upon termination of the employment contract at the initiative of the employer, an entry is made in the work book about the dismissal (termination of the employment contract) with reference to the relevant paragraph Art. 81 of the Labor Code of the Russian Federation. Let's take an example.

record number date of Information about hiring, transfer to another permanent job, qualifications, dismissals (indicating the reasons and referring to the article, paragraph of the law)Name, date and number of the document on the basis of which the entry was made
number month year
6 15 08 2014 The employment contract was terminated due toOrder
with repeated failuredated 15.08.2014 No. 5-u
without valid reasons
duties, paragraph 5 of the first part of Article 81
Labor Code Russian Federation
Morozov's secretary
M.P.

Remember that the employee must be familiarized with the dismissal record against the signature in his personal card, in which the entry made in the work book is repeated ( clause 12 of the Rules for maintaining and storing work books approved Decree of the Government of the Russian Federation of April 16, 2003 No.  225 "On work books").

After making an appointment on the last working day of the employee, he needs to issue a work book. The employee must confirm this fact with his signature in the book of accounting for the movement of work books and inserts to them. If it is impossible to issue a work book on the day of dismissal due to the absence of the employee or refusal to receive it, the employer is obliged to send a notice to the employee about the need to appear for the work book or agree to send it by mail. At the written request of an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee's request.

7. We carry out the final settlement. Based Art. 140 of the Labor Code of the Russian Federation upon termination of the employment contract, payment of all amounts due to the employee is made by the employer on the day the employee is dismissed. If the employee did not work on that day, the corresponding amounts must be paid to him no later than the next day after the dismissed employee submits a request for payment.

8. We complete the dismissal. The last step registration of dismissal may be the issuance of duly certified copies of documents related to work. This is done only if the employee asks the employer about it in a written statement.

But it is mandatory to issue a certificate of the amount of earnings for the last two years preceding the dismissal. This is required p. 3 h. 2 art. 4.1 of the Federal Law of December 29, 2006 No.  255-FZ "On mandatory social insurance in case of temporary disability and in connection with motherhood. Recall that the form of the certificate is approved Order of the Ministry of Labor of the Russian Federation dated April 30, 2013 No.  182n .

In addition, if the employee was liable for military service, information about his dismissal must be transferred to the military registration and enlistment office. Such information is submitted in the form given in Appendix 9 to methodological recommendations on maintaining military records in organizations, approved by the General Staff of the Armed Forces of the Russian Federation on April 11, 2008.

Finally

Summing up, we recall the main points, in the presence of which it will be problematic to challenge the dismissal. So, before issuing a dismissal order for p. 5 h. 1 art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment by an employee without good reason of labor duties, the employer should check:
  • whether the employee has outstanding and outstanding disciplinary sanctions, whether they are properly executed;
  • Is the employee familiar with their official duties, internal labor regulations and other documents relating to his labor activity;
  • whether the procedure for bringing an employee to disciplinary responsibility was carried out correctly ( Art. 192,193 Labor Code of the Russian Federation).

Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (Article 81 of the Labor Code)

Because Art. 192 of the Labor Code classifies dismissal for violation of labor discipline as a measure of disciplinary action, then dismissal for repeated violation of labor duties is possible in compliance with the rules established for the imposition of disciplinary sanctions. Dismissal under paragraph 5 of Art. 81 of the Labor Code is lawful when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of the duties imposed by the labor regulations; 2) failure to fulfill these duties for unjustified reasons, i.e. committed unlawfully intentionally or by negligence; 3) repeated culpable violation of labor duties, i.e. disciplinary offense does not take place for the first time, for which the employee was earlier (during the last

working year) a disciplinary measure was applied; 4) a specific offense before dismissal, from the moment of which more than a month has not passed.

The resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 dated December 22, 1992 states (paragraph 24) that a violation of labor discipline is a failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of internal labor regulations, job descriptions, regulations, administration orders, technical regulations, etc.).

Such violations, in particular, include; 8

  • a) the absence of an employee without good reason at work up to four hours during the working day, finding him not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;
  • b) the refusal of the employee without good reason to comply with the new labor standards amended in the prescribed manner;
  • c) refusal or evasion, without good reason, of the medical examination of the employee, for whom it is mandatory, as well as the refusal of the employee to undergo special training during working hours and pass exams on safety and operating rules, for which this is a mandatory condition for admission to work.

Refusal to perform work that is not part of the employee's labor duties (except in cases of mandatory transfer for employees), or from performing a public assignment, as well as incorrect actions of an employee that are not related to labor duties, are not a violation of labor discipline and therefore cannot serve grounds for termination of the employment contract under paragraph 5 of Art. 81 TK.

Therefore, the dismissal will be lawful if, immediately before the dismissal, the employee committed a disciplinary offense, and earlier during the last working year, a disciplinary sanction was imposed on him for violating labor discipline and it has not been lifted.

When taking into account the penalties, their legality is checked, i.e. whether the order of their imposition was followed. A penalty imposed in violation of the established procedure is not taken into account. The deprivation of the bonus is not a disciplinary sanction, so it should be taken into account. If at least one of the four previously indicated conditions is absent, termination of the employment contract under paragraph 5 of Art. 81 of the Labor Code is considered illegal.

Dismissal is possible in compliance with the terms and procedure established by Art. 193 of the Labor Code (no later than one month from the date of discovery and no later than six months from the date of the misconduct, and based on the results of an audit or audit of financial and economic activities - no later than two years from the date of the commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., according to clauses 5, 6, 8, 10 and 11 of article 81 of the Labor Code). At the same time, only the time of the employee's illness or being on vacation is not counted in the monthly period for the application of a disciplinary sanction in the form of dismissal. In other cases, absence from work does not interrupt the course of the specified period. As previously indicated, for this dismissal, the employer must request the opinion of the trade union body on dismissal (Article 373 of the Labor Code).

Termination of an employment contract at the initiative of the employer can be carried out if there is guilt in the actions of the employee

Termination of an employment contract due to repeated non-fulfillment by an employee, without good reason, of labor duties, if he has a disciplinary sanction, is regulated by paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The question arises about the number of disciplinary sanctions necessary for the legality of the application of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The Labor Code of the Russian Federation does not give a sufficiently complete answer to the question of the number of disciplinary sanctions necessary for the legality of the application of clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

According to the instructions of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006, “when resolving disputes of persons dismissed under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on these grounds, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment by him, without good reason, it was not removed and not repaid. Decree of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The procedure for applying disciplinary sanctions is determined by Art. 193 of the Labor Code of the Russian Federation, which states: before applying a disciplinary sanction, an explanation in writing must be requested from the employee. If, after two working days, an explanation is not provided by the employee, an act is drawn up.

The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.

When using the above grounds for dismissal, the defendant is under an obligation to provide evidence showing that:

1) The violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract.

2) The employer complied with the deadlines for the application of a disciplinary sanction, provided for in parts three and four of Article 193 of the Labor Code of the Russian Federation. Gaidukova L.N. Commentary on changes to the Labor Code of the Russian Federation - M .: Grossmedia, 2007. P. 218.

It should be borne in mind that:

1. The one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered.

2. The day when the misdemeanor is discovered, from which the expiration of the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions.

3. The monthly period for the application of a disciplinary sanction does not include the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation), the absence of the employee at the workplace due to other grounds, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period.

4. Vacation interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with training in educational institutions, unpaid leave.

The employer should justify the legality and validity of previously imposed penalties. At the same time, the timing of the application of a disciplinary sanction does not matter, since, after dismissal under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it becomes the main part of a new disciplinary offense, which, in general, can be appealed in the manner prescribed by law. The legality and validity of a disciplinary sanction previously imposed on an employee is not checked only when there is a court decision that has entered into force on the legality of this sanction.

Often, after bringing an employee to disciplinary responsibility, having written a statement "about dismissal of his own free will", the employee continues not to fulfill or violate his labor duties or the internal labor regulations of the organization. In these cases, the employer has the right to apply a disciplinary sanction to the employee, since the employment relationship, in this case, is terminated only after the expiration of the notice period for dismissal. Decree of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The definition of a disciplinary offense is given in Article 192 of the Labor Code of the Russian Federation, which states that a disciplinary offense is a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him.

Judicial practice details the definition of "disciplinary sanction". The Decree of the Plenum of the Supreme Court of the Russian Federation No. 63 dated December 28, 2006 states (p. 35) that “an employee’s failure to perform, without good reason, labor duties is a failure to perform or improper performance, through the fault of the employee, of the labor duties assigned to him (violation legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include, in particular:

1. The absence of an employee, without good reason, at work or at the workplace. Thus, in an employment contract concluded with an employee, or in a local regulatory act of the employer (order, schedule), a specific workplace this worker. If this is not done, then it should be assumed that, according to Art. 220 of the Labor Code of the Russian Federation, the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

2. Refusal or evasion, without good reason, of a medical examination of workers in certain professions, as well as the refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, whether this is a mandatory condition for admission to work. Decree of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

A.N. Keil proposes the following definition of a labor offense: "Guilty, unlawful act of the subject of an employment relationship, which consists in the failure to perform or improper performance of the obligations of the subject in a labor offense, for the commission of which he can or should be held legally liable with the application of sanctions contained in labor law" . Kyle A.N. New order and conditions for imposing disciplinary sanctions // Labor Law. No. 2. 2007. S. 14-22.

As can be seen from this definition, not any non-performance will be a disciplinary offense. As a mandatory sign of a misconduct, article 192 of the Labor Code of the Russian Federation indicates the presence of the employee's fault.

The Labor Code does not speak about the form of guilt, nor about the types necessary to bring an employee to disciplinary responsibility, therefore, any form of guilt is sufficient to impose a penalty (including dismissal).

In addition to guilt, there are a number of points that an employer should be guided by in order to recognize the committed act as a disciplinary offense. Thus, the refusal of an employee to perform work in the event of a danger to his life and health or from performing heavy work not provided for by the employment contract or work with harmful or hazardous conditions work, does not entail disciplinary liability. It is impossible to dismiss striking workers, as well as for refusing to be recalled from vacation, etc.

To apply a disciplinary sanction from an employee, a written explanation must be requested in order to identify all the circumstances of the misconduct committed, as well as the degree of employee's guilt in it. In an explanation, it is advisable to get an answer to the questions:

Was there a violation?

What is the fault of the violation;

The circumstances of the violation, its causes;

The attitude of the employee to the violation;

The attitude of the employee to further work.

Since dismissal is an extreme measure, the court, in the event that there are all formal grounds for dismissal, may decide to reinstate the person at work, if the violation committed by the employee is not so serious as to recognize leaving him at work incompatible with the interests of production. Kyle A.N. New procedure and conditions for imposing disciplinary sanctions // Labor Law. No. 2. 2007. S. 14-22.

The current legislation provides that for certain categories of employees a special procedure for bringing to disciplinary liability is established.

Thus, there are two types of disciplinary responsibility: general, provided for by the Labor Code of the Russian Federation, and special, which employees bear in accordance with federal laws, charters and regulations on discipline.

Acts on special disciplinary liability may also provide for more severe penalties than those provided for in Article 192 of the Labor Code of the Russian Federation, as well as a special procedure for imposing them, which differs from those that employees bear with general disciplinary liability, although the measures listed in article 192 of the Labor Code of the Russian Federation.

Refusal to continue work due to a change in the terms of the employment contract determined by the parties (in this case, it can be terminated under paragraph 7 of Article 77 of the Labor Code of the Russian Federation), the employee’s refusal to comply with the employer’s order to go to work before the end of the holiday.

Consider a case from judicial practice.

S. appealed to the Zhiguli City Court with a lawsuit against the MSU stadium "K" for reinstatement in part-time work, provision of conditions for safe and efficient work, recovery of earnings for the period of forced absenteeism, compensation for non-pecuniary damage.

S. in the period from June 11, 2010 was in an employment relationship on the terms of an external part-time job with the municipal sports institution of the city of Zhigulevsk "K" as an instructor methodologist. By order of December 30, 2010, she was dismissed from her position on December 31, 2009 on the basis of paragraph 5 of Article 81 of the Labor Code of the Russian Federation for the employee's repeated failure to fulfill labor duties without good reason.

S. stated that she had been illegally and unfairly dismissed at the initiative of her employer. She did not violate the terms of the employment contract, while the defendant provided her with a period of time for work that she cannot combine with her main job.

The plaintiff testified that her main work schedule is from 08.00 to 17.00. She is fond of sports - weightlifting, is a European champion among veterans, constantly expressed to the chairman of the sports committee of the city administration about. Zhigulevsk desire to work. In the summer of 2010, the city administration allocated the rates of sports instructors to the defendant to conduct free classes with the population. S. confirmed that at the organizational meeting, the chairman of the sports committee brought to the attention of all those accepted that there should be at least 15 people in the group, while age does not matter. This requirement was not reflected in the documents. The mode of her work was established by the employment contract - 9 hours a week. Initially, she was given to conduct classes with those who wished gym"A" in the period from 17 to 20 hours three times a week. She compiled the schedule of these classes herself and brought it to the attention of the chairman of the sports committee. In fact, her place of work was MUP "A". In September 2010, S. scored very large group, having invested their funds, placed advertisements about training. In mid-September, the director of Municipal Unitary Enterprise "A" issued an order to change the working hours, since the gym began to be provided on a paid basis at the previously occupied time. She was given a period from 14:00 to 17:00, while the employer did not make any changes to the documents relating to her labor activity. Her work was checked by her employer. As a result of inspections, violations were revealed, about which acts were drawn up. On October 30, 2010, S. explained her absence from the workplace by the fact that she finished the training session 15 minutes earlier due to poor health. She also believes that class hours should be counted as academic hours (45 minutes each), so she does not agree that she committed a disciplinary offense. On November 03, 2010, as a result of an inspection by the commission, an insufficient number of students in the group was established. S. S. confirmed that there were 5 people involved, but she believes that this was not her fault. Since the training time was shifted by the employer, she was forced to take time off from her main job at her own expense. Due to the lack of paper, S. could not print the lesson record. Keeping a lesson record, according to her, is not assigned to her by any document. Its pupils are teenagers aged 14-15, who finish their studies at 15.00, therefore, after changing the time of training, the number of students has sharply decreased. She worked to get the kids involved. Admitted that her job description stated that she should control the quantitative composition. However, she understands this in such a way that she must mark the persons attending training in the journal. She did not sign it because there was no pen. I do not agree with all the disciplinary sanctions imposed on her. I do not agree with the wording of the dismissal. The employer, in her opinion, should have set a convenient time for her classes, to provide assistance. The equipment that it requires must comply with the requirements and GOSTs, must be manufactured in factory conditions. She had to bring some equipment from home. The employer had to provide her with stationery: paper and pens.

IN court session after a question from the presiding judge, the plaintiff refused to continue working with the defendant on the proposed conditions - three times a week from 14 to 17 hours, insisted that the defendant provide her with a work time convenient for her: from 18 to 21 hours.

After examining the evidence presented, the court did not find grounds for the full satisfaction of the claim.

In accordance with the protocol No. 2 dated 06/08/2010 of the general meeting of public instructors in the committee for physical culture and sports of the administration of the city of Zhigulevsk, where the plaintiff was also present, issues were discussed, including the acceptance of public instructors on the following conditions: the presence of at least 15 students in the group; hourly workload of at least 9 academic hours per week - by 0.5 rates. In addition, each instructor-methodologist on a monthly basis, upon receipt of wages, must provide a package of reporting documentation, which includes: a weekly schedule of classes, a main list of students with personal data of those involved, a lesson record log.

The circumstances of the employment relationship stated by the parties are confirmed by the order for the admission and dismissal of the plaintiff.

In accordance with the employment contract concluded by MSU "K" with the plaintiff, she was accepted part-time as a sports instructor-methodologist with a working hours: part-time working week 9 hours a week. The place of work is not specified in the contract.

The job description of the instructor-methodologist in sports, approved by the director of the ISU "K" on 05/01/2010, confirms that the duties of the instructor-methodologist include monitoring the quantitative composition of the sections, observing labor discipline, planning their work, compiling reporting documentation.

In accordance with the letter of the director of MUP "A" dated 07.09.2010. head of the committee on physical culture and sports of the department of social. development of the administration of the city of Zhigulevsk, in connection with the beginning of the autumn season and the involvement of those involved on a paid basis from 12.09.2010. time for weightlifting classes from 18.00 to 21.00 is not provided free of charge. S. has the opportunity to train in the gym "A" at a different time convenient for her.

From a written message to the plaintiff of the deputy mayor of the city of Zhigulevsk - head of department social development dated September 29, 2009, it follows that she was given time for classes on weekdays from 14.00 to 17.00, on Saturday from 09.00 to 12.00 in room “A” free of charge.

Thus, the plaintiff, according to the court, was notified of the change in the conditions of her working hours, which she does not deny.

In the future, at the initiative of the body local government checks were carried out on the activities of both the plaintiff and other instructors, based on the results of which acts were drawn up on the violations found, the plaintiff was brought to disciplinary responsibility. In total, three disciplinary sanctions were applied to her by orders of the defendant. These orders were not recognized as illegal by anyone, the plaintiff is not appealed, based on the results of consideration of the prosecutor's protest against one of the orders, the defendant - the employer changed the type of disciplinary punishment,

So, by order No. 64 of 02.11.2010, the plaintiff announced a disciplinary sanction in the form of a warning on the basis of inspection acts of 29.10.2010, 30.10.2010 for absence without good reason at the workplace.

By order No. 64/1 dated 05.11.2010, the director of LSG "K" on disciplinary action, the plaintiff was reprimanded on the basis of an inspection report dated 02.11.2010, from which it follows that at 15.20 5 people were present at the training time as the payroll of the section - 36 people; there is no lesson recording of classes for September, it is recommended to carry out active work to attract students to classes more involved (minimum 15 people).

By order No. 70 dated December 21, 2010, the director of MSU "K" on the basis of an act dated December 8, 2009, which established that at the time of the check at 15.00 o'clock the plaintiff's classes were attended by 3 people with a payroll of 20 people, of required documents there is no detailed record of classes, there is no data from the place of study or work in the list of those involved, there are no personal signatures in the detailed record of classes for August and October, the plaintiff was issued a disciplinary sanction in the form of a severe reprimand.

Any violations in the imposition of these disciplinary sanctions, the court did not establish.

The court considers it necessary to apply the norms of the Labor Code of the Russian Federation to the dispute.

According to Article 60.1 of the Labor Code of the Russian Federation, an employee has the right to conclude employment contracts on the performance, in his spare time from his main job, of another regular paid job with another employer (external part-time job).

Article 2 of the Labor Code of the Russian Federation establishes that the basic principles legal regulation labor relations and other relations directly related to them, the following are recognized: freedom of labor, including the right to work, which everyone freely chooses or freely agrees to.

At the same time, Article 15 of the Labor Code of the Russian Federation determines that labor relations are relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work entrusted to the employee, subordination of the employee to the rules of the internal labor regulations while providing the employer with working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, collective agreement, agreements, local regulations, labor contract.

This norm corresponds to Article 56 of the Labor Code of the Russian Federation, according to which an employment contract is an agreement between an employer and an employee, in accordance with which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, the collective agreement, agreements, local regulations and this agreement, in a timely manner and in full size pay wages to the employee, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations in force at this employer.

Article 21 of the Labor Code of the Russian Federation establishes the right of an employee to provide him with work stipulated by an employment contract; meanwhile, the same norm imposes on the employee the duty to conscientiously fulfill his labor duties assigned to him by the employment contract; observe the rules of internal labor regulations; observe labor discipline; comply with established labor standards.

Article 57 of the Labor Code of the Russian Federation establishes that the conditions on the place of work, labor function, working hours and rest time are mandatory for inclusion in an employment contract (if for this employee it is different from general rules operating for this employer). However, if at the conclusion of the employment contract it did not include any information and (or) conditions from among those provided for in this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it.

By virtue of Article 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative.

According to Article 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Consequently, the emergence of labor relations is based on the employee's consent to personally perform a specific type of work entrusted to him, the employee's subordination to the internal labor regulations, and compliance with the working hours offered to him by the employer. Consequently, the current legislation does not provide for the right of the employee to demand from the employer the establishment of personally suitable working conditions for him, the working hours.

From the foregoing, and also, taking into account the position of the plaintiff, her categorical refusal to continue working on the conditions offered by the employer, the court sees that the plaintiff, after changing the terms of the employment contract determined by the parties, refused to continue working, which, by virtue of paragraph 7 of part 1 Article 77 of the Labor Code of the Russian Federation is the basis for termination of the employment contract.

In accordance with paragraph b, paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it should be borne in mind that the refusal to continue work in connection with a change in the labor conditions determined by the parties of the contract is not a violation of labor discipline, but serves as a basis for terminating the employment contract under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Article 74 of the Code.

On the basis of Article 74 of the Labor Code of the Russian Federation, if the employer has no other job or the employee refuses the offered job, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

At the same time, on the basis of clause 61 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, if, when resolving a dispute on reinstatement at work, the court recognizes that the employer had grounds for terminating the employment contract, but indicated in the order the wording of the grounds and (or) reasons that was incorrect or not in accordance with the law dismissal, the court, by virtue of part five of Article 394 of the Code, is obliged to change it and indicate in the decision the reason and grounds for dismissal in strict accordance with the wording of the Code or other federal law with reference to the relevant article, part of the article, paragraph of the article of the Code or other federal law, based on the actual circumstances that served as the basis for dismissal.

For the above reasons, the court considered it possible to satisfy the claim in part, to change the wording of the dismissal “for repeated failure by the employee without good reason to fulfill labor duties” to “dismissal due to the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties under clause 7 of part 1 article 77 of the Labor Code of the Russian Federation”.

Since the employment relationship between the parties was recognized by the court as terminated on December 31, 2010, satisfaction of the requirements for providing the plaintiff with conditions for efficient and safe work, providing her with a convenient time for training - from 17.00 to 20.00, providing high-quality sports equipment, inventory, stationery and other things, compensation for material compensation for forced absenteeism from 01/11/2011 to the day the court makes a decision is not possible.

The claim for compensation for non-pecuniary damage is also not subject to satisfaction, since, as established by the court, the employer did not allow significant violations of the plaintiff's rights, while on the basis of Article 237 of the Labor Code of the Russian Federation, compensation for moral damage is allowed only if it was caused by unlawful actions (inaction) of the employer. Judgments upon dismissal of employees at the initiative of the employer//http// trudovoikodeks.ru›praktika_iniz_rd.shtml

Dismissal of an employee for repeated non-performance of labor duties (clause 5, part 1, article 81 of the Labor Code of the Russian Federation): approximate step by step procedure

DISMISSAL FOR REPEATED DEFAULT OF LABOR DUTIES:

EXAMPLE STEP-BY-STEP PROCEDURE


If the employee refuses to familiarize himself with the order to terminate the employment contract, in this case it is necessary to draw up an act (part 6 of article 193 of the Labor Code of the Russian Federation). The act is registered in the manner prescribed by the employer in the appropriate registration log.


10. Registration of a note-calculation upon termination (termination) of an employment contract with an employee (dismissal).


11. Settlement with the employee.

Upon termination of the employment contract, payment of all amounts due to the employee from the employer is made on the day the employee is dismissed. If the employee did not work on the day of dismissal, then the corresponding amounts must be paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts due to the employee upon dismissal, the employer is obliged to pay the amount not disputed by him within the period specified in this article (Article 140 of the Labor Code of the Russian Federation).



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