On what grounds can an employee be dismissed? Legal procedure for dismissing an employee without his desire

How to fire an employee is a question that is always relevant for the HR department, just like hiring new personnel, however, this matter also has its own nuances. The most serious issue is the issue of painless termination of an employment contract for both parties. Unfortunately, this does not always work out - a person can sue the company or go to competitors and deliberately begin to harm your organization.

How employees are fired: reasons and options

According to the law, there are three types of dismissal:

1. at the initiative of the employer;
2. at the initiative of the employee;
3. by agreement of the parties.

The first type is associated with the unilateral dismissal of an employee for failure to comply with certain company rules. This may include permanent absenteeism. Or such a procedure is carried out in the event of liquidation of an enterprise or reduction of staff.

If we talk about the second option, in this case the employee needs to write a resignation letter at will. Moreover, the employer cannot refuse to satisfy it.

The third type is suitable if the manager is dissatisfied with the hired employee, but he refuses to leave the company, without giving specific reasons for dismissal.

Option 1.Dismissal at your own request

This type is the most commonly used ground for termination of activities in certain company. There are only two steps here:

1. The employee submits a letter of resignation indicating the date.
2. The manager must satisfy this request.

Difficulties, if you need to dismiss an employee at your own request, are very rare. Perhaps the only one is the need for work, when within two weeks from the date of filing the application a person continues to perform his functions in the company.

Some groups of employees are given a shorter period of notice to quit. It is important to always remember this, since the unexpected dismissal of such an employee cannot serve as an excuse for the company when it does not have time to calculate and return the work book to the dismissed employee.

Option 2.Dismissal by agreement of the parties

Here, termination of an employment contract takes a minimum of time and is simple. Which employees are fired this way? The law allows termination of an employment contract by agreement of the parties, even with those who are on vacation or sick leave. To do this, the employee submits an application to the manager, and if the employer takes the initiative, he sends the subordinate a proposal to terminate the contract. When the parties have agreed, an agreement is prepared, a dismissal order is issued, and the work book records under what article the employee was fired, that is, clause 1 of Art. 77 of the Labor Code of the Russian Federation.

Option 3.Dismissal at the initiative of the employer

The reasons in this case may be different. So, this could be an attempt by management to reduce the company’s costs, staff reduction, liquidation of the company, a person’s inadequacy for the position held, or the sale of the company to a new owner. However, most often this option is used in cases of violation of discipline: when there is absenteeism, an employee comes to the company in a drunken state, appears in the office later than expected, etc. Since it is now clear why you can fire an employee, let’s talk about how to do this without mistakes.

Option 4. Dismissal due to violation of labor discipline

Before you decide to punish an employee under this clause, check whether his employment contract clearly states the mode, place of work, etc. It may seem incredible, but a number of companies do not include the place of work in the contract, because their activities, that is, their personnel , requires presence at several sites. And they cannot be included in the contract already upon hiring. How to fire an employee for absenteeism if his contract is drawn up this way? This is impossible, because the papers do not record a specific place in which a person must be. But if the conditions are defined, if they are not met, the employer can impose disciplinary punishment on the subordinate. Of course, you can fire a person for just one violation, but then it must be quite serious.

The reason for such a tough decision by the manager may be showing up at work drunk (or under the influence of drugs), theft, embezzlement, damage (accidental/intentional) to someone else's property, disclosure of commercial or state secrets. You can also be fired for absenteeism or absence from work for four hours. But before doing this, we advise you to make sure that there is no certificate of incapacity for work. For minor violations, such as being late, disciplinary action is permitted. In this situation, the employer does the following:

• finds a misdemeanor(this is done within the established time frame in accordance with Article 193 of the Labor Code of the Russian Federation);
• records this violation;
• receives from the employee a handwritten statement of the reasons for the misconduct– the employee must provide an explanatory note on this fact;
• issues an order to impose disciplinary liability(announcement of warning, remark, reprimand);
• brings this information to the attention of the employee.

If discipline is repeatedly violated, a severe reprimand is usually issued, accompanied by deprivation of bonuses, and only after the third offense can the manager decide how to fire the employee.

Option 5. Dismissal due to staff reduction

The law clearly establishes the procedure and rules for terminating an employment contract in such a situation. So, if one of the equivalent positions is cut, you should retain a more qualified employee (provided that the people working here have equal social status). With the same level of qualifications, but different life circumstances, it is prohibited to fire: single mothers, the sole breadwinner, a person injured at work, disabled people, veterans of the Second World War, labor and combat, women with children under 3 years of age, pregnant women, participants in the resolution of collective disputes, employees undergoing on-the-job training. Remember, if a person is fired due to staff reduction, he must be notified two months in advance and, if possible, offered a different post. If he agrees, an internal transfer is processed; if not, it is necessary to obtain an application from him with a request to relieve him of his position due to staff reduction. After which the employee leaves the company, having received all the necessary payments to the dismissed employee.

Option 6. Dismissal upon liquidation of the enterprise

Obviously, if the company ceases to exist, all employees must receive a paycheck. How to properly fire employees in such a situation? It is necessary to notify all personnel in writing two months in advance in accordance with Art. 180 (part 2) of the Labor Code of the Russian Federation. This rule applies to main employees and part-time workers. Each of your subordinates should receive the notification, and attach the second copy with the signature of the person being dismissed to the order. After two months, the administration of the organization prepares an order for the dismissal of personnel in the T-8 form, pays severance pay, compensation for unused vacation, salary for time worked. The calculation is carried out on the last working day, an entry is made in the work book. We also note that people whose employment contract was terminated due to the liquidation of the company have the right to expect payment of average monthly earnings while searching for a new job, but for a maximum of three months. This rule does not affect part-time workers, seasonal staff, as well as those who carry out urgent work. employment contract(for a period of up to two months).

Option 7. Inconsistency with the position held

This issue can only be resolved by the organization’s certification commission. Let's imagine that an assessment was carried out to check the professional suitability and qualifications of staff, and one of the employees received a bad assessment. Then he may be offered to take a different position. If the specialist does not agree, the manager has the opportunity to refuse his services, since the employee is not suitable for the position. The manager has a fixed period of time for this after the certification, which is 2 months. Further, the order and work book include the wording “due to inadequacy of the position held and refusal to transfer to another position.”

When can you fire an employee?

It will not be possible to fire an employee while he is on vacation, whatever it may be: annual paid, childcare, educational or without pay. wages. Violation of this norm is permissible only during the liquidation of the company. In addition, you cannot fire a person who is on sick leave. This applies to key staff, part-time workers and even homeworkers.

There are also some groups of people whose dismissal, in principle, cannot be initiated by the employer, or it will be quite difficult.

How to properly fire an employee: procedure

If you want to avoid unpleasant consequences, it is important to understand how to competently fire an employee in the legal field. A preliminary consultation with a lawyer will help you here; it will be especially useful when your case is related to individual characteristics. It is very important to strictly follow the sequence of actions:

1. Determining the legal grounds for releasing a person from office. Specific reasons will do, or you can fire an employee at your own request.
2. A personal conversation with the employee or a written warning about termination of the contract.
3. Collection of necessary documents(including confirming the legitimacy of the action).
4. Drawing up a dismissal order in form T-8 or T-8a.

5. Entry into the work book.

It is important to use correct wording in the work book. Therefore, we advise you to create a cheat sheet to avoid corrections in the document.

1. Payment of compensation.

Compensation to a dismissed employee is mandatory and is issued regardless of the article of the Labor Code under which the employee leaves. This also applies to dismissal from a position for absenteeism, ignoring production duties and other actions containing elements of guilt. Compensation is not due only to persons hired under civil contracts.

This payment is issued for those days of vacation that the employee did not have time to take off. Also, with the written consent of the person, he may be granted release from work for all unused rest days, replacing material compensation for the dismissed employee. However, when the person leaving in advance was already on vacation, the CCW is withheld in favor of the enterprise.

Expert opinion

How to reduce compensation upon dismissal

Elena Kozhemyakina,

Managing partner of BLS company, Moscow

I think many have heard about “golden parachutes,” that is, severance pay, the amount of which seriously exceeds state guaranteed minimum. Only specialists holding certain positions (general, commercial, financial director, development or advertising director, chief accountant, etc.) have the right to receive this kind of compensation in the event of dismissal initiated by the employer. The amount of the compensation payment is initially fixed in the employment contract, in other words, it is quite difficult to challenge it. The task of the personnel officer preparing the contract is to avoid inconsistency with local regulations and other company documents.

How can you reduce the amount of payments to a dismissed employee? Of course, top managers who have spent a lot of time on the company have the moral right to demand serious compensation. They can ask for an amount equal to two years' salary. But a manager rarely agrees to spend such significant funds. Therefore, when going to negotiations and thinking about how to fire an employee, I advise you to prepare properly. If you can’t reach an agreement, there is always a second option for the development of events, familiarize your interlocutor with it. This is dismissal due to staff reduction, for failure to perform duties, or for committing guilty actions, if the latter have been identified.

Any negotiations will be successful provided that the meeting is prepared and carried out competently. For this reason, the head of the company should not delegate the discussion of the terms of dismissal to a human resources specialist. I advise you to beware of classic mistakes: do not make accusations without reasoning, do not put pressure, avoid quick emotional conclusions. Remember, if the interlocutors do not want to listen and hear each other, negotiations cannot lead to success.

How to fire an employee and avoid problems with the law

Termination of a contract by decision of the employer is legal and justified if the following rules are met:

1. The Labor Code does indeed fix the chosen conditions for dismissal;
2. All necessary procedures are strictly followed: obtaining explanations, delivering notices, coordination with the trade union body, etc.

The absence or failure to comply with one of these provisions will be the reason for the recognition of the illegality of dismissal if a dispute arises, and will even be the basis for the employee to continue working in this company.

If the staff is being reduced or the company is being liquidated, it is required to announce the planned dismissal at least two months in advance, since it is important to competently dismiss the employee. When delivering the notice, it is necessary to obtain the signature of the employee; if the latter is absent from work for valid reasons, the warning is sent by registered mail to the place of residence.

However, in a situation where an employee refuses to study this document, its text is read aloud and an act of refusal to familiarize is drawn up. Next, it is certified by the signatures of those who notified the specialist.

If low qualifications do not allow a person to work in his position, dismissal is permissible when this fact is established by the certification commission, and solely taking into account the opinion of the trade union organization.

Repeated failure to comply job responsibilities makes it possible to dismiss an employee at the initiative of the employer, but this requires documented facts of comments or reprimands previously announced to the employee. That is, it is required to provide memos, explanatory notes, complaints, etc.

Such dismissal relates to disciplinary sanctions, and therefore can occur in accordance with the standards fixed by the Labor Code of the Russian Federation (Articles 192 and 193). That is, the severity of the offense is considered, and the culprit provides an explanation in writing within up to two working days.

The decision on how to fire an employee cannot be made before the expiration of the period allocated for the person to present his version of what happened. Refusal to provide an explanation, as well as its absence without reason, must be documented in an act.

Please note that it is impossible to apply a disciplinary sanction provided that more than a month has passed since the discovery of the offense, or the violation was committed more than six months ago.

If gross deviation from official duties, such as absenteeism, disclosure of official secrets, violation of labor safety rules, being intoxicated at the workplace, was committed once, dismissal cannot be carried out without taking into account the procedures required by the Labor Code of the Russian Federation (Articles 192 and 193 ).

If, in your opinion as a manager, there has been theft of someone else’s property or falsification of documents provided, you need to obtain a court decision or sentence or a resolution of an administrative body that establishes these circumstances. Since you do not have the right to fire an employee after independently identifying such a fact.

That is, for a manager who has decided to terminate a contract with a negligent employee, it is important to document the established violation, assess the severity of the act, so that the punishment in the form of dismissal from office corresponds to it, and the deadlines must be met.

The state labor inspector can verify the legality of dismissal at the request of the employee himself, at the request of the prosecutor, or during a routine examination. In addition, removal from office is controlled by the prosecutor under prosecutorial supervision and by the court in the case of a civil case regarding a claim challenging this fact.

If it is revealed that a person’s deprivation of work was carried out illegally, he will be reinstated, and the company will also have to pay for the time of absenteeism that did not occur through the fault of the employee. The court may award compensation for moral damage in favor of the dismissed person.

It is also important to understand that the Code of the Russian Federation on Administrative Offenses states that detected inconsistencies with the rules may become a reason for imposing penalties on the manager and the company.

The director is subject to a fine of 1–5 thousand rubles, and the company – 30–50 thousand rubles. If violations are repeatedly detected, the manager, in addition to the application of such sanctions, may be deprived of the right to hold office for a period of one to three years.

Expert opinion

Consequences of dismissal without reason

Alexander Zhbankov,

lawyer, European Law Bureau

If, after you decide to dismiss an employee, all the procedures recorded in the Labor Code of the Russian Federation were not followed, the citizen has the right to apply to the court and, having won, will be reinstated in his position. That is, it is very important for the employer, when refusing to continue cooperation with a specialist, to prepare evidence of violation of labor duties.

When a dismissed person decides to challenge the sanctions imposed on him in court, the manager must prove the fact of committing a disciplinary offense, while justifying the chosen type of penalty. It is important for the court to make sure that the employer took into account the severity of the subordinate’s guilt and its circumstances, as well as the previously noted behavior and the person’s attitude towards his own activities. If the court finds that a violation actually occurred, but the dismissal was carried out without taking into account these provisions, the claim for reinstatement may be satisfied.

If you have a conflict with a person whom you want to fire, prepare evidence in advance that you are right, do not wait to go to court. Collect all reports and memos to support evidence of inappropriate behavior by the employee.

According to Art. 237 of the Labor Code of the Russian Federation, moral damage caused by unlawful actions or inaction of the manager must be compensated to the employee in financial equivalent in amounts determined by agreement of the parties to the trade union. If a dispute arises, the fact of causing moral damage and the amount of compensation for it are determined by the court, regardless of the property damage being compensated.

“Guilty” grounds for termination of an employment contract at the initiative of the employer are provided for in Art. 81 of the Labor Code of the Russian Federation.

How to fire an employee legally: examples of judicial practice

Example 1.Dismissal due to unsatisfactory results of the probationary period

The State Labor Inspectorate in the Krasnodar Territory carried out an inspection into violation of the procedure for dismissing a specialist after a probationary period from Stroy-Investment LLC (Article 71 of the Labor Code of the Russian Federation). In accordance with the results of the audit, the employment contract was terminated on October 28, 2011, but the plaintiff was not notified of this in writing no later than 3 days in advance. Such a document was prepared directly on the day of termination of the contract. It turns out that the employer did not want to comply with the deadlines for the dismissal procedure specified in the legislation (Article 71 of the Labor Code of the Russian Federation). It is also important that this warning was marked that it was not given to the employee, since the latter was absent from the workplace from 10/29/2011 to 11/01/2011. But as the documents showed, it was possible to fire the employee even before this deadline, on October 28, 2011. In other words, as of October 29, 2011, he was no longer one of the company’s personnel. Also, the employer did not take the exhaustive measures necessary to notify the plaintiff of the termination of the TD, that is, he did not send a warning about this fact by registered mail with notification or by telegram. The above violations made it possible to cancel the dismissal order. In addition, the company must reimburse the employee for the wages he lost due to his illegal deprivation of the opportunity to work. The manager was also presented with a mandatory order to eliminate the violations.

Example 2. Dismissal due to the employee’s refusal to continue activities due to a change in the terms of the employment contract determined by the parties

The Volzhsky District Court reinstated the plaintiff in the position of accountant at LLC “222” after she was dismissed under clause 7 of part 1 of art. 77 of the Labor Code of the Russian Federation. The court found that the specialist had been performing the duties of an accountant in the organization since August 29, 2006, with a salary of 15 thousand rubles per month and a monthly bonus of 3 thousand rubles. On March 20, 2008, she was notified of a salary reduction to 10 thousand rubles. due to changes in organizational working conditions and a reduction in the volume of work. However, the employer was unable to provide evidence capable of confirming that the new circumstances were caused by changes in organizational and technological working conditions. The latter include changes in technology and production technology, structural reorganization of the enterprise, as well as other reasons. Let us note that, among other things, while the employer tried to dismiss the employee without his desire, he did not offer the specialist another job in writing, that is, he violated Part 3 of Art. 74 of the Labor Code of the Russian Federation.

Example 3.Reduction in number or staff of employees

The Sovetsky District Court reinstated the plaintiff at work, since during her dismissal the employer did not comply with the requirements of Part 6 of Art. 81 of the Labor Code of the Russian Federation, which prohibits the dismissal of an employee at the initiative of the employer (except for the liquidation of the company) during the period of his temporary incapacity for work and while on vacation. The court found that the laboratory where the plaintiff worked was closed by order of the rector. The employee submitted a written request to be given unused vacation days with subsequent dismissal in accordance with clause 2, part 1, art. 81 of the Labor Code of the Russian Federation. She was given unused vacation days from November 3, 2007 to January 16, 2008, with further dismissal due to staff reduction, but she was dismissed from work by order of November 5, 2008 under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation from January 16, 2008. In addition, it was established that the plaintiff was ill during her vacation (from 01/09/2008 to 01/24/2008). On January 13, 2008, she informed her manager about her incapacity for work and the right to extend her leave in accordance with Art. 124 of the Labor Code of the Russian Federation. However, this was not done, and the employee was illegally dismissed under clause 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation during vacation and temporary disability, that is, in violation of Part 6 of Art. 81 of the Labor Code of the Russian Federation.

Example 4.Dismissal due to non-compliance

The employee filed a lawsuit against the Municipal Unitary Enterprise for Housing and Communal Services for reinstatement at work and payment for absenteeism, which was not his fault. The employee held the position of electrician and was dismissed under clause 3, part 1, art. 81 of the Labor Code of the Russian Federation for non-compliance with the position held. The reason for this step by the employer was the lack of documents allowing this person to hold the post of electrician on duty.

The court found that before being hired, the employee was tested for knowledge of the Labor Code of the Russian Federation, PB of electrical installations, traffic rules, PPB 01-03, POTRRM, as a result of which he was assigned Group III in electrical safety and was issued a document confirming this. The employer neglected the dismissal procedure: did not create a certification commission, did not conduct certification. As a result, he did not have in his hands confirmation issued by the commission that the plaintiff was not suitable for the position held. The employer did not offer the citizen in writing the vacancies available at this enterprise, since he decided to simply fire the employee, although this in this case is considered a mandatory condition. The court came to the conclusion that the dismissal from office was illegal, and the claims were fully satisfied (decision of the Uletovsky District Court Trans-Baikal Territory dated April 19, 2011 in case No. 2-79/2011).

Example 5.Repeated failure to fulfill duties

The Sovetsky District Court declared the dismissal of an employee illegal under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation. It was established that management reprimanded him for violating production discipline. But the plaintiff challenged the reprimand order, and the magistrate ruled it illegal. However, the plaintiff was fired due to the employee’s repeated failure to fulfill his job duties without good reason. Since the previously applied disciplinary sanction was declared illegal, there was no repetition factor, which means there were no grounds for dismissing the employee under clause 5 of Part 1 of Art. 81 of the Labor Code of the Russian Federation.

Example 6.Termination of relations with the manager

The Samara District Court considered the case regarding the reinstatement of a dismissed employee as a director. The woman challenged her dismissal from her position, the reason for which was ineffective work on the basis of clause 13 of Part 1 of Art. 81 of the Labor Code of the Russian Federation. It was found that the parties signed an employment contract for a period of one year, which provided for the possibility of early termination under Art. 81 of the Labor Code of the Russian Federation on additional grounds for dismissal, including failure to comply with certain provisions affecting financial indicators companies. After 54 days of work, the plaintiff was fired. The reason was the act of a comprehensive documentary audit and balance sheet, which became evidence of a deterioration in the financial and other indicators of the enterprise. The court indicated that improper fulfillment of the terms of the TD during its validity, and not in the previous period, can be considered grounds for dismissal. The defendant failed to provide evidence of the employee’s violation of the provisions of the contract during the designated period, and therefore she was reinstated in her previous position. Also, her salary for the period of forced absence was collected in her favor.

How to fire an employee without damaging his psyche

Dismissal is an unpleasant matter for both management and the employee. A person who has been asked to leave an enterprise always perceives this as stress, and as a result he experiences negative emotions, even anger and aggression. If, after a company has decided to fire an employee, the employee believes that he was unfairly fired, his actions can lead to serious problems for the company.

A dismissed employee is capable of taking revenge: transfer confidential information to other market representatives (customer databases or data about a product that has not yet been released), disclose it to the tax service financial condition company or sue your former manager for unfair dismissal. All these actions will cause difficulties for the company, caused by a damaged reputation, which will take a long time to restore. But let’s say the dismissed specialist worked with finances and passed the information to the relevant authorities, then more serious problems may arise.

Management mistakes during dismissal can affect the rest of the team: people will fear that they may not be treated better. This kind of atmosphere will negatively affect work productivity, motivation will decrease, and there may be a desire to change jobs.

To avoid all these troubles, every manager should use psychological rules for dismissal employee. The task of a manager when displacing a subordinate is to carry out this procedure with minimal discomfort for the employee. It is important to reduce stress and other negative emotions. Any manager who tells an employee that he will have to leave the company needs to learn how to use the correct termination procedure so that the person does not become angry and decide to harm the company.

It may seem strange, but men are much more sensitive than women to dismissal and are more prone to subsequent revenge. This is due to the fact that the stronger sex is initially focused on career growth, which means that its representatives have greater expectations of social success. Women show themselves to be more flexible in this matter; they adapt more easily to new conditions. Therefore, once you have decided to fire a male employee, it is important to carefully prepare for the conversation and take a more gentle approach.

A manager can give a subordinate certain tasks for a fixed period. If he fails to cope with this work, or only manages part of it, it will be clear to him that this fact may be a reason for dismissal. That is, the employee will be mentally prepared for an unpleasant conversation with management, and the loss of the position itself will no longer be a shock to him.

True, this is the reason nervous condition An employee may become depressed by the fact that the person constantly expects management to call on him in the near future. But leaving the company will turn into an option for getting rid of continuous psychological stress. True, it is difficult to say what reaction awaits you after you decide to fire an employee. For this reason, it is very important that the manager records on paper all the tasks given to the employee and the progress of their implementation. This document will be useful in the event of litigation.

There is another option by which you can prepare a person for dismissal: you need to organize a professional certification and report the receipt of an unsatisfactory assessment.

When removing from work, a fairly important role is assigned to building a conversation with an employee who is fired. Psychology offers a very well-known principle of conversation, which is called “positive - negative - positive”. He is most suitable for such a difficult dialogue. The point here is the following: it is better to start the conversation by talking about the positive qualities of the interlocutor (and they definitely should be), then you need to explain the reason for his removal from his position and, in conclusion, once again emphasize the dignity of the dismissed employee. Now let's discuss this technique in more detail.

First part conversation is positive. Its main goal is to create the most comfortable communication atmosphere possible, free from psychological stress. You must make it clear to your interlocutor that you respect him as an employee and as a person.

Second part conversation is negative. Of course, this stage is more difficult than the others, because this is where you must report the fact of dismissal. All people react to it differently. If a person is emotional, he is capable of losing his temper, starting to scream, accusing you, women may cry.

Many managers make the mistake of suppressing the outburst of emotions of their interlocutor. Let him speak. Do not allow yourself to additionally point out to the employee his lack of professionalism, laziness, non-compliance with the work schedule, or his other mistakes. This will only further ruin the attitude towards you, as a result the person will be ready to start hostilities. But there is no need to console and sympathize either, since it was you who decided to fire the employee. Be polite and calm.

Let's say the interlocutor expressed everything that was boiling over. Now we can return to constructive dialogue. Remember that the emotional outbursts of a fired team member are quite likely to benefit the company. After all, there are usually things that they don’t tell you to your face, they keep silent or try to embellish. In addition, the manager does not always have the opportunity to control all stages of the staff’s work, especially if the company is large. Therefore, listen carefully to what the fired person says, there is a chance that he will point out weaknesses in the organization’s activities.

It is important to understand that people who flare up quickly calm down just as quickly. If you let them cry it out, after a few days they will stop thinking about this unpleasant episode and will make further plans.

With calm and restrained employees, everything is much more complicated. They will not raise their voice at you, but will calmly accept your dismissal. It would seem that this makes me happy. But in fact, it only seems to you that the employee does not experience emotions. Internally, he experiences the loss of his job much more strongly. It happens that such people accumulate negativity for a long time and eventually begin to take revenge on the offender. What can you do to avoid facing the negative consequences of this behavior? It is incredibly important for such workers to adapt and get used to new conditions. This means that as soon as you decide to fire an employee, you need to inform him about it, that is, at least two to three weeks in advance. This will give him time to get used to the idea that he will have to leave his workplace. This step will help you reduce your stress levels and negative consequences after immediate dismissal.

The third part conversation is positive. So, you have informed the specialist about your dismissal, now it is important to allow him to digest the information and come to his senses. But there is no need to end the dialogue on this note. Be sure to indicate strengths interlocutor, assure him that his career will definitely be brilliant in the new company. Tell him about the severance pay he is entitled to.

When touching on the topic of reasons for dismissal, talk about external circumstances, and not about the person’s qualities. You can inform us that the company does not currently have better times, so you have to downsize. Or at this stage you need people with other knowledge and skills. But emphasize that your interlocutor is an excellent specialist in his field. There are managers who like a different method. Thinking about how to politely fire an employee, they explain their decision by saying that the person is too good for the company, his knowledge is much more extensive than what is required for this position. The effectiveness of this approach is debatable, but we can say for sure that this way you will be able to stroke the vanity of the fired person.

But what to do if you have nothing to praise your interlocutor for? Use the same “positive – negative – positive” method, but in a slightly different way. When you need to talk about good things, emphasize not professional qualities, but the characteristics of the employee as an individual.

Let's look at a conditional example of such a speech from a leader: “Dear Ivan Ivanovich! You are decent, kind, and I respect you very much as a person. But if you don't improve your efficiency soon, we'll have to say goodbye to you. I give you two weeks to improve your performance. If you manage to achieve higher quality within this period, you will continue to work with us. Otherwise you will have to start looking for another place. In the meantime, I will always be happy to help you and advise you if any difficulties arise during the work process. You can contact me at any time."

Now you need to keep your promise and support the employee in certain situations. If after the expiration of the period specified to you, no changes have occurred, then you will do as planned - you can fire the employee.

Expert opinion

What to do if fired employees take revenge on the company

Victor Nechiporenko,

General Director of OOO Information Service “Red Telephone”, Moscow

• Dissemination of information that spoils the reputation of the company. Through the press and the Internet, laid-off workers can tell you that things are going extremely badly for you. As soon as you see this kind of publication, immediately issue an official refutation (it is better to support it with arguments, facts, and figures).
• Compromise of leading specialists to the CEO. Always check the information received from former employees; there is no need to immediately make decisions based on them. For you, a complaint is neither true nor false until you get the exact facts and gather all the information on the issue. The data distributor is waiting for your emotional perception of the news.
• Luring colleagues away to another company. We have encountered such situations. A quitting employee opened a company and took over his former colleagues. The possibility of such transitions negatively affects the climate in the team, working conditions, and the level of interest of specialists in their work. You are required to structure personnel activities in such a way that no area depends on just one person. Useful to have on hand ready plan actions in case half of the team leaves you at once.
• Theft of customer database. You need to develop confidence in customers that not only one employee in the company can help them. I advise you to divide all interaction with the client into three or four successive stages so that they are held accountable for them different people, as this is important if you fire one of your employees. That is, the customer will communicate with several representatives of the company.
• Disclosure of commercial information. Through the fired person, information about orders, suppliers, and company plans can leak to competitors. A number of companies sign agreements under which the employee is responsible for disclosing trade secrets. In fact, it's not the best option, because you will have to prove that it was this person who disclosed the data. The best defense is to limit the amount of information available to each employee.
• Damage to software, introduction of viruses. To protect your software, install anti-virus programs and prepare backups all important files. Information that employees often use in the process of work is best duplicated on paper. Once our company was forced to work without electricity for several days, that is, all computers were turned off. But we were ready: operators answered customer questions using pre-made printouts from the database with a minimum amount of information. Most customers did not notice any problems in their work at that time.
• Hacker attack on the site. Often such an attack is carried out by people responsible for the development and support of the portal. If your site is run by individuals, choose them in such a way that they have increased responsibility to you. Sign an agreement with an organization that will be responsible for any failures.
• Sabotage. There is only one rule here: always be prepared for such behavior as soon as you decide to fire an employee. When our communication line was damaged, we decided to disguise it by drawing additional false lines. The pests did not stop cutting the wires, but they could no longer find the real one.
• Initiation of inspections by relevant authorities. Regulatory authorities usually detect a number of violations. The solution is simple: monitor the accuracy of paperwork and changes in legislation.
• Complaints, lawsuits. A lawyer should deal with these types of problems. It would be great if he can resolve them out of court.

Expert opinion

Rules for constructing a conversation during dismissal

Marina Melia,

General Director of the company "MM-Class", Moscow; professor of psychology

Rule 1.Nothing personal

Firing and hiring are normal processes in professional life. No company provides lifetime employment to its staff, and few people want to devote their entire life to a particular company. Immediately after hiring a person, the manager must imagine how to fire an employee, for example in 2017, from a legal and psychological point of view. This mindset will help you approach the conversation about leaving your position more easily.

Rule 2.Doubts away

Before you start a difficult conversation, think carefully about the current situation, make sure that this is justified and the only possible way out. Eliminate doubts and clearly articulate why you made this decision.

Rule 3.Ready for any reaction

Think ahead about the person's first reaction. If your specialist is so able to control his emotions that it is unclear whether he heard you, ask additional questions. Another is capable of showing aggression - remain calm, be emphatically businesslike, do not argue. Another one will wilt or even cry - show sympathy. The latter will try to bargain, demand compensation - provide a clear calculation.

Rule 4.Ready calculation

Even before starting a difficult conversation, decide what compensation you are willing to give. Prepare your arguments for the amount of payments in advance. If an employee sees how the amount is formed, and the manager can justify it, no one will bargain.

Rule 5.Right moment

Set aside a time in your schedule when no one will disturb you, since it is important for you to fire an employee as painlessly as possible. Performing this procedure on the go or between your conversations on the phone, with incoming colleagues, etc. can really hurt the former employee.

Rule 6.Conversation plan

The key in a conversation about dismissal are the first five phrases (I emphasize, not minutes, but phrases!). They are given to you in order to clearly formulate the notice of dismissal and the objective reason. And only after this can one remember pleasant episodes of cooperation and positive traits interlocutor. Pause to allow the person to speak. Listen carefully, calmly and respectfully. The more specific the conversation, the less negative consequences there will be for the person being fired and those with whom you will still have to cooperate.

Rule 7.Farewell form

Anyone wants to leave work with their head held high - help your subordinate. However, it is important to find a middle ground between “come in any time” and coldness. Show respect and be sincere.

Information about the experts

Elena Kozhemyakina, managing partner of BLS, Moscow. Since 1998, the BLS law firm has been protecting the interests of employers in the field of labor law and providing clients with HR services. BLS specializes in Russian labor legislation and acts only in the interests of employers.

Alexander Zhbankov, lawyer, European Law Office. Alexander Zhbankov graduated from the Moscow State Law Academy, graduate school "Rosnow" in the department of theory of state and law, his specialization is judicial protection of organizations in labor conflicts and personnel security. Teacher at the Russian School of Management, Candidate of Legal Sciences, member of the Association of Legal Education. European Law Bureau - Moscow Bar Association, registered by the Ministry of Justice Russian Federation and included in the register of the Moscow Chamber of Lawyers. Created in 2003, when a sustainable creative Group lawyers and journalists who have focused their efforts on providing legal assistance to citizens and legal entities, as well as on their legal education. The team included lawyers from different parts of the country and journalists from such publications as Economics and Life, EZh-Lawyer and the Labor Disputes magazine.

Victor Nechiporenko, General Director of OOO Information Service “Red Telephone”, Moscow. "Red phone" Field of activity: organization of call centers; information and registration services for exhibitions; conducting marketing research, seminars and trainings on telephone communication, telephone sales; consulting activities on organizing business processes of call centers and marketing services, product promotion. Form of organization: LLC. Location: Moscow. Number of staff: 10. Number of exhibitions organized annually: 50–60. General Director's length of service: since 1996 (since the company was founded). Participation of the CEO in the business: co-owner.

Marina Melia, General Director of the company "MM-Class", Moscow; professor of psychology. Graduated from the 2nd Moscow Order of Lenin State Medical Institute named after. N. I. Pirogova. Engaged in coaching consulting for top officials of Russian business. Previously, she worked as a psychologist in national sports teams of the USSR, and headed the laboratory of psychology of elite sports at the All-Union Scientific Research Institute of Physical Culture. Author of the best-selling books “Business is Psychology”, “How to Strengthen Your Strength? Coaching", "Success is a personal matter" and " Main secret first year of life." LLC "MM-Class" Field of activity: coaching. Number of employees: 23.

Dismissal of a director (Sample form P14001 when changing director).docx

When a person is fired from work on the initiative of higher management, for him this almost always means psychological stress, painful experiences, and a wounded sense of pride. Irritation and resentment can have serious consequences for the organization - from creating a negative image in professional circles to lengthy legal proceedings. An angry employee often takes revenge on the company by leaking its customer base to competitors or by reporting tax authorities confidential financial information. In addition, dismissal carried out in a rough, “clumsy” style causes stress for the rest of the staff. The remaining employees understand that sooner or later they will be treated in exactly the same way. In the team, work motivation decreases, loyalty to management disappears, and a secret search for a new job begins.

Hence the importance of psychological support for the dismissal of an employee. The dismissal process itself, if possible, should be made as gentle as possible in relation to the employee leaving the organization. It is necessary to minimize negative psychological consequences. There are several ways for both parties to avoid excessive stress upon dismissal, so that the employee does not leave embittered and does not plot further intrigues against the former employer.

Psychological studies have found that psychological stress caused by dismissal is more pronounced in men than in women. Men, due to their psychophysiological characteristics and prevailing stereotypes in society, are more inclined towards social success and career achievements. They more often perceive dismissal as the collapse of all their life plans and hopes, and are more often prone to inappropriate reactions. , are also more pronounced in men. Women react more flexibly to stressful situations and adapt to new conditions faster. Therefore, no matter how strange it may seem from a philistine point of view, men need a more attentive and “gentle” approach when leaving a job than women.

There are several psychological rules that are useful to use when dismissing an employee.

The upcoming dismissal procedure can be mitigated by setting specific tasks for each week/month/quarter and discussing their implementation with the employee. An employee who systematically fails to complete assigned tasks is mentally prepared for dismissal. Even before the decision is announced, he understands that he cannot cope and may be separated from him, and he also knows why. Therefore, the notice of dismissal does not come as a surprise to him and does not cause stress. In this case, the stress factor is not the job loss itself, but the constant threat that this is about to happen. And the very fact of losing a job is often perceived with relief - as getting rid of constant uncertainty and discomfort.

In some cases, it is necessary to record in writing all the tasks that are given to the employee, and the result of their completion, in case of future litigation. Preparation for dismissal can also include conducting a performance appraisal and communicating the (negative) results to the employee. They make him understand that it is time to look for another job.

The conversation in which the dismissal is announced must be structured psychologically competently. Best to use psychological technique"PNP". (Positive-Negative-Positive). That is, first you need to list the positive qualities of the dismissed employee, then explain why the person can no longer work in the company, and at the end of the conversation you need to reassure the person and once again emphasize his strengths.

Stage 1, positive. At the first stage, it is important to create a positive emotional background and demonstrate respect for the person and his personality. This will soften upcoming negative experiences.

Stage 2, negative. Notice of dismissal. The reaction to it depends on the temperament and character of the person. For some, the reaction can be very violent - the employee “explodes”, screams (women may cry), accuses the boss of all mortal sins. In this situation, it is important not to interrupt him, but to let him “let off steam.” Listen calmly to him before continuing the conversation. It is not recommended to express active sympathy to an employee - this will only intensify his emotions. It is also inappropriate to respond according to the principle “you are a fool” - emphasizing the negative personal traits of the person being fired, reproaching him for laziness, sloppiness and lack of professionalism. This will make the employee even more angry and may cause a protracted conflict. Stay within the bounds of polite and calm goodwill.

Having “shouted out” all the negativity, the employee will again be able to perceive your arguments. In addition, such an accusatory impulse on the part of an employee who has “nothing to lose” can be very useful for the company. It allows you to find out those negative opinions and moods in the team that are usually kept silent and not expressed out loud to superiors. A smart leader will definitely draw conclusions from the information received.

Anyone who gets excited quickly usually calms down quickly. Such individuals overcome stress quite quickly. Within a few days after dismissal, they return to normal and begin to live not in the past, but in the future.

For calmer, phlegmatic and melancholic individuals, the notice of dismissal will not cause such a sharp external reaction. However, their internal psychological experiences are much stronger than those of the “explosive”. Negative consequences last longer, they tend to accumulate, and can cause chronic depression and loss of meaning in life. There are also known cases of suicide in which fired employees attempted to commit suicide.

In these people, psychological stress tends to develop progressively. Over time, negative experiences do not decrease, but become stronger. The fired person accumulates resentment for several weeks or months, and when it becomes unbearable, he suddenly decides to take revenge on his former employers and begins to develop a sophisticated plan of revenge.

For such individuals, the adaptation period is especially important. They need to be informed about “their own desire” to leave the company in advance and allowed to work in the company for some more time (2-4 weeks) in order to mitigate the period of acute psychological crisis. During this time, the employee will come to terms with the inevitable and get ready to look for a new job.

Stage 3, positive (“rehabilitating”). After the “sentence” is pronounced, it is recommended to take a pause so that the person has time to come to his senses, realize everything that was told to him or to “blow off steam,” and then do a few final “strokes.” For example, express confidence that he will definitely be able to reveal his great potential in another place of work. To sweeten the bitter pill, at this stage it is appropriate to discuss the amount of severance pay (“nth amount of salary”) that the employee will receive upon dismissal.

It is better to emphasize that dismissal is due to external reasons, and not to the personal qualities of the employee. It happens due to objective circumstances, and the employee himself has nothing to do with it. Those. at the third (positive) stage of the conversation, you need to say: “...the company simply finds itself in such a situation that we are forced to cut staff” or “You are a good specialist, but to solve new problems in new conditions we need people with different skills and other approach." You can also play on the ambitions of the dismissed employee, emphasizing his overqualification: “You are too good for us. You have long outgrown the scope of our company, you are capable of more, and for you, dismissal is a good reason to rise even higher and fully realize all your inclinations, which were not put to use at your previous place of work.”

The “PNP” principle also applies in the case when the dismissed employee does not shine with business qualities and, in principle, there is nothing to praise him for. As is known, in accordance with the Labor Code, an employee must be warned about the upcoming dismissal in advance. Therefore, the corresponding conversation between a boss and a careless subordinate can be structured like this:

“Dear name! You are a good person (positive personal qualities are listed). But if you don’t radically change your attitude towards work and your financial results, then we will be forced to part with you. I give you two weeks. If, after the expiration of the two-week period, you show that the work is up to you (and we both know very well that you are up to it), everything will be fine. If after two weeks nothing changes, then write a statement “on your own” and look for another place. Or I myself will officially inform you that you are fired! In the meantime, come to me for help and advice any time you need it! I will behave towards you as if nothing had happened and you had just started work, and I will do everything in my power for you.”

This text must be pronounced in its entirety and in exactly the same sequence to achieve the maximum psychological effect. If the situation has not changed after two weeks, the negligent employee quits.

Large and successful companies can afford the so-called.

Less successful companies may limit themselves to writing a good letter of recommendation for future employers, with which the dismissed employee will go looking for a new job. Of course, only if the employee agrees to resign calmly and without scandal. During the final conversation, it is advisable to give parting words and advice on future employment: where is the best place to apply, where can you get short-term training, improve your classification, etc. It is important to explain to the person that losing a job and looking for a new one is not a tragedy, but a normal stage of any business career. Therefore, we need to be optimistic about the future. Sooner or later, he will definitely find a job that will open up new prospects for professional growth. Show concern for his fate so that the person does not feel like an unnecessary thing that heartless employers squeezed out and threw out into the street without regret.

Many companies have good tradition: in a farewell conversation, one of the company’s managers thanks the employee for his work and hands him “exit” documents. This gives a good psychological effect, but only if the person thanking is a truly important person in the organizational hierarchy, and not a regular clerk from the personnel department.

If a person has worked for a long time and brought significant benefit to the organization, it is advisable to see him off publicly and with honor. For example, arrange a small farewell buffet and present him with a memorable gift in a formal atmosphere. This is especially important if the dismissal occurs due to a person’s retirement. In this case, material costs are more than compensated by the favorable psychological climate in the organization. Not only the dismissed, but also the remaining staff will feel calm and confident. People will know that the company to which they give the best years of their lives will not treat them indifferently, but will show them respect and support. This will have a beneficial effect on work motivation and loyalty to management.

Such behavior on your part will ensure, if not a positive, then at least a non-aggressive attitude towards your company. Employees will be more inclined to view their dismissal as an honest and forced act, rather than as meanness on the part of management. They often continue to speak well of the company and express no desire to sue it for wrongful termination or retaliate against former employers in any other way.

Prepared based on materials from the training seminar:

© Prepared by: Victor Bodalev.
© Psyfactor, 2007

Business owners often come to me for consultations with the question of how to quickly and painlessly and, most importantly, break even for the company to fire a negligent employee. In this article I will not describe in detail the legal subtleties, but will focus on the dismissal algorithm, psychological aspects and tell you how to carry out a dismissal so that you come out of this procedure with minimal negative emotions, and in simple terms - “no offense”, and that who is fired, and the one who fires.

Let's consider a typical situation.

So, after much thought, you, as a director, have come to the conclusion that Ivanova’s sales manager does not suit you at all in terms of his professional and personal qualities. The revenue is decreasing, it is not attracting new clients, and, apparently, it is already receiving kickbacks from the old ones. In addition, she is always dissatisfied with everything, does not say hello, and yesterday she called the accountant a fool. Previously, you wouldn’t see Ivanova at her workplace before half past ten, but at five minutes past six she was already blown away by the wind.

You come to the accounting department (aka the HR department) with the phrase: “Ivanova needs to be fired. First, let’s try... of our own free will.”

Reasons: why are you firing?

To fire an employee, you need to clearly know why you are doing it. Why know clearly? So that the consciousness does not wander. If you set a goal to fire someone, fire them. Next, we determine the reason.

I have identified five main reasons for dismissal:

unprofessionalism of the employee. Lack of knowledge, skills and experience. And there is no desire to receive them. The employee lacks motivation. The probationary period has already passed, the person thinks that there is no need to study anymore, and automatically does some kind of work. This does not suit you. Its influence on the team is negative. A person is constantly dissatisfied and infects the entire team with his dissatisfaction and attitude towards work. He is a virus that needs to be localized and neutralized before it paralyzes the entire team. And here I will make you happy, because you have already localized it: you already have doubts about it. All that remains is to neutralize the disrespect for the leader. The employee undermines the authority of the manager. Causes sabotage in work, it infects other people. He shows how to communicate with you in a familiar and sassy way. Are you ready for the fact that soon all your employees will begin to communicate with you in the same way? No - that means make an indicative dismissal. There is a discrepancy between the employee’s mission (goal - what he works for) and the company’s mission. This is seen when applying for a job. If the main goal of the company is development, and the person has different values, then it will be difficult for you to find a common language, and you will still disagree. In theory, you should have noticed this during the interview, but for some reason you didn’t notice it right away... It’s okay - there is always a way out.

Why are you afraid to get fired?

It is always difficult to fire someone, and all managers do their best to delay this unpleasant moment. Even businessmen with a strong authoritarian management style, who may shout, stomp their feet and spray saliva at an offending employee, have difficulty firing employees.

The reasons are usually psychological. From experience, I identify three main ones:

Reason 1. Pity for the careless employee. Because this useless, incompetent, undisciplined employee has a family, and you will leave his innocent household without a livelihood.

Or it often happens like this: work doesn’t work out, but otherwise it’s very good man, everyone in the team loves him.

Solution 1: calculate how much it costs to maintain such an employee and how much income he brings you - the pity will immediately pass.

Pick up a calculator and multiply his monthly salary by twelve (don't forget to add tax and social contributions to it).

For example, how much is pity worth?

25,000 rubles x 12 months = 300,000 rubles per year.

Those who wish can also take into account the cost of the current maintenance of this employee. For an office employee, these are expenses for telephone, Internet connection and e-mail, purchase of components and office supplies, etc. In general, there are enough expenses.

Perhaps, after receiving the final figure, your pity for the person being fired will not only decrease significantly, but will even turn into indignation or, at least, pity for the lost money, which you will certainly find better uses for.

However, if you want to be generous, you can pay the employee severance pay. This will cost you much less than paying him a monthly salary that he has not earned.

Solution 2: Realize that by firing you are giving the person a chance to find a job they like!

Let me give you an example from practice - from the story of a happy fired worker:

“Having realized what kind of business I liked, I prepared for another year to implement it and eventually left my engineering position for the field of “working with people.” When I started doing my own thing, my happiness knew no bounds. The constant stress from the realization that “I’ll go back to work tomorrow” has disappeared; there is no more irritation and negativity in the workplace. There is a desire to tell your family and friends about this and share new things, what you find and learn every day. And even if sometimes I had to work a lot, the fatigue was pleasant.”

Reason 2. Pity for myself and my wasted energy: I taught him so much, but here again I will have to look for another and teach him again. And where and how to look for new employees? Again this staffing headache!

Solution: See solutions under Cause 1.

Reason 3. Fear that the employee will get angry and some problems will arise: he will “harass” the tax service, scratch the car, spread gossip, steal clients, etc.

Solution: the main thing is to part amicably. It is necessary to give the person the opportunity to make this decision himself. If he doesn’t want it himself, then create conditions so that he has no choice. Don't be afraid of anything, you're right.

How to fire?

Your task is to make the employee understand that he cannot cope with the job, or to create such conditions for him that he again decides to leave voluntarily.

Clearly define his motivation and artificially remove it. Example: if the motivation is professional growth, then explain that there will be no growth. If the motivation is proximity to home, say that this product item will move to a warehouse on the other side of the city. If the motivation is communication, “delight” him that soon he will switch to working only with a computer, etc. Give the employee a difficult task, obviously impossible: “Go there - I don’t know where, bring that - I don’t know what...”. He will not cope because he does not have enough professional experience, because the task itself is difficult to complete (if at all).

For example, if the person being fired works as a marketing manager or is responsible for sales, then you have the power to sharply increase the plan, and also demand the speedy conclusion of contracts with the most inaccessible, but desired customers and clients.

If an employee can complete an impossible mission, that's great. Maybe then the need for dismissal will simply disappear.

If a miracle does not happen, then there will be a formal reason to sigh sympathetically: “It’s a pity, of course, but you yourself see that nothing is working out for you and me.”

Ask the employee for money to pay for his training (so that he pays for a year in advance). Say that there will be certification soon - he may be scared. Change the working conditions. Create stricter rules and standards. Many people are afraid of change. Tell us about possible changes in the company.

Emergency insurance

In my practice, there was a case when I had to fire an excellent specialist with excellent performance due to unacceptable behavior at a corporate holiday. He was very drunk when he climbed onto the stage and, sorry to say, took off his pants at the very moment when our general director from London was giving a congratulatory speech. This spectacle was observed by 600 people from different regions of the country. "Fire! – the order immediately followed. - For bad behavior!"

It was difficult for me to explain to a sober employee in the morning why I wanted to fire him, but my safety net (preliminary collection of explanatory notes about minor violations) allowed me to do this.

It is convenient to fire those who are not particularly conscientious for failure to comply with labor discipline: repeated lateness, absenteeism, etc. For this method to “work”, the employee’s employment contract and internal labor regulations must indicate when the working day begins and ends.

Be sure to record late work on your time sheet. When an employee once again fails to show up at the workplace on time, create a commission and draw up a report of lateness. After the employee has redone all his personal affairs and appears in the office, ask him for written explanations (Article 193 of the Labor Code). Refuses to write an explanatory note - create a commission and draw up an act of refusal. The commission should include the head of the department, a personnel department employee, and two or three witnesses (for example, a security guard or secretary).

It’s quite easy to “find fault” over small things - you were two minutes late, you left one and a half minutes early - you prepare a report and, based on it, a written remark. Employees, as a rule, try to challenge the reprimand, but somehow do not pay attention to the comments. Then you update these comments from time to time. As soon as a negligent employee commits the first serious violation, you issue a reprimand. And here is paragraph 5 of Article 81 of the Labor Code - repeated failure to fulfill labor duties in the presence of a disciplinary sanction!

It is better not to rush into ordering dismissal on this basis. Wait until the employee’s personal file contains several reports of lateness, comments and memos: if the case goes to court, this will significantly increase your chances of winning.

How to conduct a conversation with a candidate for dismissal

Preliminary conversation. Give us a second chance? We set plans and tasks. We define minimum deadlines and specific results. We strictly control!

The conversation is basic and decisive. During it, you need to let the person know that he is significant, but your paths have diverged. You are ready to help him with his further arrangement, do not hold a grudge against him, give recommendations if necessary. Use the last conversation with the employee and in order to identify problems and shortcomings in your team, ask him for advice.

After dismissal

Don't give negative references if other companies ask.

On a separate plate at the end:

Advice:
Create a profile of the candidate you need based on a clear example of the employee you don't need!

From my own experience

I fire quickly, without working off, and as compensation pay the salary that the person would receive at the end of the month.

I always share a person’s professionalism and personality. With a person, if there is mutual desire, you can remain on good and even friendly terms.

And I’ll end this article with a statement from Steve Jobs: “Don’t let the views of others drown out your own inner voice. And it is very important to have the courage to follow your heart and intuition. They somehow already know what you really want to do. Everything else is secondary.”

The 3 most common options for dismissing an employee: inadequacy for the position held, violation of labor discipline, being under the influence of alcohol or drugs.

 

Is it possible to fire an employee without his desire?

During a crisis, many enterprises try to reduce their workforce to reduce costs, but it is not always possible to part with them by voluntarily dismissal. If you are fired due to staff reduction, this will entail additional payments, which is disadvantageous for the employer.

Entrepreneurs who do not know how to fire an employee without his or her desire according to the law can familiarize themselves with possible reasons for dismissal according to from Art. 81 Labor Code of the Russian Federation:

• Insufficient qualifications, inadequacy for the position held, failure of subordinates to pass certification.
• Failure to fulfill labor duties established by the contract, repeated disciplinary violations.
• The appearance of an employee in the organization in a state of intoxication.
• Violation of labor protection requirements established by the commission.
• Theft Money.
• Committing an act that is contrary to moral standards, making further work activity impossible.

To avoid litigation, in which the court will definitely side with the employee, it is important to know one detail: you cannot fire an employee while he is on sick leave, pregnant or on vacation.

Dismissal if the employee is not suitable for the position held by the employee

To fire an employee due to non-compliance, you need to take several steps:

• Issue an order for the employee to undergo certification, then give him a notification about it.
• Organize certification, including the most difficult tasks for him, which he will not be able to cope with.
• Recognize the employee's inadequacy for the position held.

For a manager, this method is not the most acceptable, because By law, he must offer an uncertified employee a vacant lower-level position, which he can accept while remaining employed by the company.

Dismissal for violations of labor discipline

If an employee has previously been subject to disciplinary action and is subject to a reprimand or reprimand, the employer has the right to dismiss him if he repeats the violation. What the procedure itself looks like:

• The fact of committing a repeated offense is documented by means of a memorandum, act, decision of the commission or by indicating the actual time worked in comparison with general norm man-hours.
• An explanatory note is required from the offending subordinate. If it is absent, the employee will be able to challenge the dismissal in court, referring to Art. 193 of the Labor Code of the Russian Federation, according to which the employer is obliged to request it from the subordinate. If he does not provide it within two working days, a corresponding act is drawn up.
• Orders are issued for disciplinary action for systematic violations of labor discipline, as well as for dismissal for failure to fulfill labor obligations.
• A record of dismissal is made in the work book, indicating the reason - clause 5, part 1 of Art. 81 Labor Code of the Russian Federation.

On the employee’s last day of work, it is necessary to make all payments due to him: wages earned for the period worked, compensation for unused vacation, etc.

Dismissal of an employee due to intoxication

Such cases are extremely rare, and it is easier to get rid of an employee through certification or disciplinary violations, which everyone has. If there is any doubt about his sobriety, you need to do the following:

• Conduct a medical examination. It is advisable for an entrepreneur to attend.
• Draw up a report on whether a subordinate is in the workplace or on the territory of an enterprise in a state of alcohol (drug) intoxication.
• Issue an order for removal from work.
• Request a note of explanation from the employee.
• Draw up a report on the fact that the employee appeared in a drunken state.
• Draw up a dismissal order at the initiative of the employer and register it in the registration journal.
• Make a calculation note in form T-61, familiarize the former subordinate with the order against signature.
• Make an entry in the work book indicating paragraphs. b clause 5 art. 81 Labor Code of the Russian Federation.
• Issue a completed work book and make an entry in the Accounting Book.

As a rule, most employees found drunk at work agree to leave of their own free will, so it is quite possible to avoid the procedures described above by offering to disperse peacefully.

The simplest reasons for dismissal

It’s easiest for employers who hire employees for a certain period under a contract, because after the expiration of this document, it does not have to be renewed. In addition, the most common reason for dismissal among managers is failure to comply with labor discipline, which includes violations common to 90% of subordinates:

• Absenteeism and tardiness.
• Premature leaving work without an agreement with management.
• Ignoring the director's orders.
• Failure to fulfill direct job duties.

Despite the many options for the development of events, the simplest is still voluntary resignation, because only in this case the dismissed employee will not be able to win a claim in court unless he proves that the dismissal was under pressure from the employer. Even in this situation, the chance that the court will side with him is very low.

To bookmarks

Stanislav Sazonov

What is the danger of layoffs?

When you fire an employee, there may be negative consequences for you as an employer.

1. Even if an employee is fired legally, he complains to the labor inspectorate, and when checking the correctness of the dismissal, they find errors in the preparation of employment documents (orders, employment history and so on), a fine will be imposed:

• for you as an individual entrepreneur - from 1000 to 5000 rubles; from 5,000 to 10 thousand rubles for the absence of an employment contract or for errors in it;

• for you as the director of an LLC (PJSC, CJSC, State Unitary Enterprise, Municipal Unitary Enterprise) - from 1000 to 5000 rubles; from 10 thousand to 20 thousand rubles for the absence of an employment contract or for errors in it;

• like you entity- from 30 thousand to 50 thousand rubles for errors in documents; from 50 thousand to 100 thousand rubles for the absence of an employment contract or for errors in it.

Moreover, fines can be imposed on the director of the company and on the company at the same time.

That is, for example, an LLC can receive a fine of up to 120 thousand rubles for the lack of an employment contract: a 20 thousand fine for the director and 100 thousand rubles for the LLC.

2. If an employee is fired illegally, there may be a demand to reinstate him at work, pay wages for the period of forced absence, pay legal expenses and, as a rule, compensate for moral damages. Reinstatement is carried out only by court decision.

3. If the salary was paid “in an envelope” or the employee was not officially registered, he can file a complaint. If the information is confirmed and sent to the tax service, the Pension Fund and the Social Insurance Fund, then you will be assessed additional taxes, insurance premiums and will also be fined.

Let's look at how to avoid the second situation.

Dismissal: 80% psychology and 20% law

How to gently push an employee to voluntarily terminate an employment contract? In addition to legal nuances, dismissal also includes psychological ones. And sometimes psychological ones even take priority.

Due to various circumstances, a person may begin to do his job poorly. You can give him a warning, talk to him, but if nothing changes, then you need to fire him.

As practice shows, if your employment contract clearly states the responsibilities of an employee, but he clearly cannot cope with them (for example, a sales manager does not fulfill the plan, violates the technology of working with clients - he takes a long time to approve invoices, violates sales stages, negotiates with the wrong those persons), then there are no disputes and conflicts.

The most important thing here is that everything is clearly spelled out in the employment contract and that you discuss everything in advance before signing it.

It is understatement and unrealistic expectations that are the main causes of conflicts.

The employer thinks: “It seemed to me that everything was great, he understood everything, he will work the way I need. But he ruins deals, doesn’t know how to communicate with clients, doesn’t remember who called, doesn’t write down contacts, says “Hello” on the phone, but should say: “ABV Company, Ivan Ivanov, good afternoon”... Well, my goodness!”

The employee thinks: “I dreamed that I would earn a million dollars in cash in a month, that I would work 24 hours a day, four hours a day, but in reality I only got 30 thousand rubles, and I had to work seven days a week and 10 hours a day...”.

The conditions must be stated without embellishment, but as they are. Many employers like to embellish or say on controversial issues: “Start working, then we’ll figure it out.” And then it’s too late to figure it out.

If there are no differences in expectations, then there is no conflict, which means there are no problems with dismissal.

How can you discuss the terms with the employee before signing the contract?

“I’m taking you to work. The conditions are as follows: in the first month, while you are an intern, you must sell 200 thousand rubles. In the second – for 350 thousand rubles. In the third - by 400 thousand rubles.

If you can’t reach 400 thousand by the third month, then both you and I will earn little, and neither you nor I need that. Do you agree? If you agree, then let's go."

These are examples from real practice. As a rule, in such cases, a person admits that he cannot cope, and, albeit with regret, leaves. And then he doesn’t do any mischief, doesn’t run around to labor inspectorates and courts demanding to check you and force you to pay extra wages or reinstate him at work.

However, there are also workers who are always offended and believe that they are still owed money. Yes, and those who left on good terms may be “overwhelmed” because, for example, at home the husband or wife will psychologically provoke them to demand something from you.

In an attempt to “grab” at least something, they often try to challenge the dismissal in court, so it is vital for you to know how to dismiss an employee as painlessly as possible and without further consequences in the case of the courts.

Since the court most often sides with the employee (in Russia, for government agencies the employer is always a greedy bourgeois oppressor who is obviously wrong), the most win-win and safest option would be dismissal on the initiative of the employee, since here either no dispute can arise at all, or he himself will have to prove that he did not want to quit.

If the employer decides to fire, he himself will have to prove in court the legality of the dismissal.

This is directly stated in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation, which explains that when considering the case of reinstatement of an employee whose employment contract was terminated at the initiative of the employer, the obligation to prove the existence of a legal basis for dismissal and compliance with the established procedure for dismissal rests with the employer .

I would conditionally divide all practical examples of dismissal into two groups.

1. Dismissal of an employee on his own initiative or with his consent. This:

• dismissal by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation);

• dismissal at will (clause 3, part 1, article 77 of the Labor Code of the Russian Federation).

2. Dismissal of an employee if he disagrees (we will consider only those grounds that are a measure of disciplinary liability, that is, punishment for the employee’s incompetence). This:

• dismissal in the event of repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation);

• dismissal in the event of a one-time gross violation of labor duties by an employee (absenteeism, appearance in a state of intoxication, disclosure of secrets protected by law, theft at the place of work, violation of labor protection requirements) (Clause 6, Part 1, Article 81 of the Labor Code of the Russian Federation);

• This also includes dismissal during a probationary period if the test result is unsatisfactory (Article 71 of the Labor Code of the Russian Federation).

Termination of an employment contract (dismissal) is recognized as legal only if two conditions are met:

• the grounds for dismissal are expressly provided for by the Labor Code;

• the procedure for dismissal on this basis has been followed.

5 safe ways to fire a negligent employee

The first and best way: dismissal by agreement of the parties

Firstly, unlike voluntary dismissal, in which an employee can withdraw his resignation letter, an employee who has signed a document terminating the employment contract by agreement of the parties has no way back.

The agreement cannot be terminated and cannot be challenged.

Secondly, by agreement of the parties, you can terminate any employment contract (fixed-term or for an indefinite period) with any persons and at any time (there is no obligation to warn in advance).

Despite the fact that the contract is terminated by mutual consent, either the employee or the employer must take the initiative. If the dismissal occurs at the request of the employee, he can write something like the following statement: “I ask you to terminate the employment contract on the basis of clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties from October 15, 2017”. Date and signature.

The article and the basis itself must be clarified, otherwise this can be interpreted as a statement of one’s own free will, and it has its own “surprises” (more on them below).

If you take the initiative to terminate the employment contract, you can write this:

LLC ABC, represented by General Director Ivanov I.I., invites you to enter into an agreement to terminate the employment contract on May 15, 2016 on the basis of clause 1 of part 1 of Article 77 of the Labor Code of the Russian Federation by agreement of the parties. I ask you to notify us of your consent or refusal to accept this proposal in writing within two days. Date of. Signature. Seal".

The agreement must be drawn up in writing. The Labor Code does not provide for any forms of such an agreement. So you can take this example:

The second method is also good: voluntary dismissal

Article 80 of the Labor Code of the Russian Federation: “An employee has the right to terminate an employment contract by notifying the employer in writing no later than two weeks in advance, unless a different period is established by this Code or other federal law. The specified period begins the next day after the employer receives the employee’s resignation letter.”

Everything is simple here - the employee writes you a statement that he wants to resign of his own free will.

Main disadvantage:

Article 80 of the Labor Code of the Russian Federation: “Before the expiration of the notice period for dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out unless another employee is invited in his place in writing, who, in accordance with this Code and other federal laws the conclusion of an employment contract cannot be refused.”

However, you can conclude an agreement on dismissal “on your own” even before the expiration of two weeks.

Also, sometimes, for better motivation when leaving at your own request, they offer to write a good reference.

If suddenly an employee says that he was forced to write a statement “on his own,” then he must prove this in court (subparagraph “a”, paragraph 22 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

It's nice that a non-entrepreneur will have to justify himself. This is important in such matters.

Third method: dismissal of an employee who fails the test

The possibility of dismissal if the test result is unsatisfactory is provided for in Art. 71 Labor Code of the Russian Federation. In this case, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, warning him about this in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test.

Basic rules of probation:

• if the test result is unsatisfactory, you can dismiss the employee before the expiration of the test period by warning in writing, no later than three days in advance, indicating the reasons;
• The test cannot be administered to all employees. So, according to Art. 70 of the Labor Code of the Russian Federation, employment testing is not established for: pregnant women and women with children under the age of one and a half years; persons under the age of eighteen; persons who graduated from state accredited educational institutions of primary, secondary and higher education vocational education and those entering work for the first time in their specialty within one year from the date of graduation educational institution;
• if the employment contract does not contain a probationary clause, it means that the employee was hired without a trial;
• the probationary period cannot exceed three months;
• If the test period has expired and the employee continues to work, then he is considered to have passed the test, and he will have to be dismissed on general grounds.

How to properly fire someone

1. Non-standard option.

It is possible to replace dismissal on the basis of an unsatisfactory result of the test for dismissal of the employee at his own request, if he makes such a decision after receiving the notification specified in paragraph 5 of Article 71 of the Labor Code of the Russian Federation. After all, the article states that if during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

In most cases, such a situation is resolved peacefully: the employee is informed that he is not suitable to perform the work for the position for which he was hired, that is, he did not pass the probationary period. He understands this and quits of his own free will. The question is settled: the employer has achieved his goal, and the employee does not have a “bad” entry in the work book.

2. Standard option.

It is necessary to establish a probationary period in the employment contract, including:

• comply with prohibitions regarding probation;
• comply with the testing period.

This issue was written above in the basic rules of the probationary period.

During the test, it is necessary to draw up official (report) notes on the work, as well as other documents indicating that the employee does not pass the test. Or document the test procedure and show that it was violated.

Make a written decision stating that the employee failed the test. Correctly calculate the period for warning the employee about an unsatisfactory test result.

Warn the employee in writing about the unsatisfactory test result no later than three days in advance, indicating the reasons (Part 1, Article 71 of the Labor Code of the Russian Federation). Dismiss upon expiration of the warning period under Art. 71 of the Labor Code of the Russian Federation in the prescribed manner (Article 84.1 and Article 140 of the Labor Code of the Russian Federation).

Fourth method: dismissal in the event of a one-time gross violation of labor duties by an employee

You can dismiss for the following one-time gross violation of labor duties by an employee (clause 6, part 1, article 81 of the Labor Code of the Russian Federation):

• absenteeism;
• showing up at work while intoxicated;
• disclosure of secrets protected by law that became known to the employee in connection with the performance of his job duties;
• committing theft or embezzlement at the place of work, established by a verdict or court order that has entered into legal force;
• violation of labor protection requirements that resulted in serious consequences (industrial accident, accident, catastrophe) or created a real threat of such consequences;
• the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him on the part of the employer (clause 7, part 1, article 81 of the Labor Code of the Russian Federation);
• the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work (clause 8, part 1, article 81 of the Labor Code of the Russian Federation).

As is obvious from the word “one-time”, you can be fired if these actions are performed at least once.

Since in these cases the basis for dismissal is disciplinary violations, when applying dismissal as a disciplinary measure, it is necessary to thoroughly follow the procedure for imposing a disciplinary sanction established by Art. 193 Labor Code of the Russian Federation.

How to properly fire someone

The procedure for imposing a penalty is specified in Article 193.

It is necessary to record the offense either in documents, or in the form of a memo, or in the form of an act (preferably with witnesses). You will have to prove it later, so try your best.

Before imposing disciplinary action, the employer must request a written explanation from the employee. Explanations are provided in the corresponding note.

The explanatory note must have a title starting with the preposition “o” (“about”), followed by the subject of the explanation.

An explanatory note is written on a regular sheet of paper indicating:

• employer's name;
• type of document;
• dates;
• signature of the compiler.

If the employee refuses to write an explanatory note, then an act of refusal to give explanations is drawn up. It is better to sign the act by several persons (the more, the better).

The employee is asked to sign the document. If he refuses to sign the act, an entry about this is made in the act - and everyone signs under it again. By the way, no one forbids capturing the fact of refusal on a mobile phone camera.

No later than one month from the moment the offense was committed, an order to impose disciplinary sanctions and dismissal is issued.

Dismissal on these grounds is permitted no later than one month from the date of discovery of the misconduct, not counting the time the employee was ill, on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the employee’s representative body (Part 3 of Article 193 of the Labor Code of the Russian Federation).

Fifth method: dismissal in the event of repeated failure by an employee to fulfill work duties without good reason, if he has a disciplinary sanction

As is obvious from the word “repeated”, you can be fired if these actions are performed more than once.

Such violations, in particular, include:

• absence of an employee from work or workplace without good reason;
• refusal by an employee, without good reason, to perform labor duties in connection with a change in labor standards in accordance with the established procedure (Article 162 of the Labor Code of the Russian Federation), since by virtue of an employment contract, the employee is obliged to perform the labor function determined by this agreement, to comply with the internal labor regulations in force in the organization (Article 56 Labor Code of the Russian Federation);
• refusal or avoidance without good reason from a medical examination of workers in certain professions, as well as the employee’s refusal to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, if this is a mandatory condition for admission to work.

When using this basis for parting with an employee, it is necessary to pay attention to the explanations given in paragraphs 33–35 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.”

Thus, courts, when considering disputes, must take into account that failure by an employee to fulfill duties without good reason means failure to fulfill labor duties or improper performance through the fault of the employee of assigned labor duties (violation of legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, employer orders, technical rules, etc.).

The employee must be caught failing to fulfill his work duties without good reason, that is, committing a disciplinary offense. In this case, a disciplinary sanction must be imposed on this employee, which should not be lifted by the time a new offense is committed.

How to properly fire someone

1. Apply a penalty for the first violation (or several in a row - to enhance the effect of repetition), following the procedure for bringing to disciplinary liability. The procedure is established in Article 193 of the Labor Code of the Russian Federation and was described above.

2. Identify a new violation. Check the procedure for bringing to disciplinary liability in accordance with the requirements of Art. 193 of the Labor Code of the Russian Federation (recording the fact of a violation, requesting an explanation, drawing up an act of refusal to provide an explanation after a two-day period, and so on).

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