Article 81. Termination of an employment contract at the initiative of the employer

What groups of grounds for dismissal are identified by Article 81 of the Labor Code of the Russian Federation?

The reasons for dismissals given in Article 81 of the Labor Code of the Russian Federation can be divided into the following groups:

Occurring due to changes in the organizational structure of the employer - these are paragraphs. 1 (liquidation of employer), 2 (reduction of staff), 4 (change of owner).
Related to the presence of the employee’s fault – these are paragraphs. 5–6 (not a single or one-time gross violation of labor discipline), 7–7.1 (loss of trust), 8 (immoral act), 9–10 (guilt of the manager), 11 (concealment or distortion of information about oneself).
Others – this is paragraphs. 3 (inconsistency with the position held), 13 (additional grounds for the manager), 14 (other cases of dismissal).

You can also highlight among them those that will correlate:

With all employees – this is paragraphs. 1–3, 5–6, 11.
With employees of certain positions (occupations) – paragraphs. 7 (materially responsible persons), 7.1 (persons who may have a personal interest in the results of their decisions), 8 (teachers), 14 (persons defined in the relevant legislative acts).
Only with managers - this is paragraphs. 4, 9 (making an unjustified decision), 10 (gross misconduct), 13 (additional evidence).

For any case of dismissal under Article 81 of the Labor Code of the Russian Federation, it is necessary to have a documentary justification for its application and to comply with certain procedures prior to the termination of the employment agreement. It is prohibited to dismiss an employee who is absent for good reasons (vacation of any kind, sick leave).

The inadequacy of the position and the guilt of the employee must always be proven and first considered taking into account mitigating circumstances. If the staff is reduced and the position is recognized as unsuitable, the employer must try to employ him before dismissing the employee.

What distinguishes the dismissal processes during liquidation and reduction (clauses 1 and 2 of Article 81 of the Labor Code of the Russian Federation)?

A complete picture of the procedure for dismissal due to the liquidation of an employer or in connection with a reduction in its staff, reflecting the whole variety of possible situations, emerges only as a result of an analysis of several articles of the Labor Code of the Russian Federation. Since there is no fault of the employee in the upcoming dismissal, conditions must be created that maximally mitigate its consequences for the employee. The employer incurs significant material costs.

The fact that the employee will be dismissed due to liquidation or reduction, he is notified in writing and in advance, no less than:

2 months in advance if the employee is an ordinary full-time employee (Article 180 of the Labor Code of the Russian Federation);
1 week if the employee was hired for a season (Article 296 of the Labor Code of the Russian Federation).

An employee facing redundancy is offered in writing the vacant positions available to the employer and is fired only if he refuses them.

Dismissal for both of these reasons is accompanied by the payment of severance pay, the purpose of which is to pay the dismissed employee for the time that, according to the law, is considered sufficient to find a new job:

up to 3 months for an employee who is an ordinary full-time employee (Article 178 of the Labor Code of the Russian Federation);
2 weeks for an employee hired for a season (Article 296 of the Labor Code of the Russian Federation);
Up to 6 months for an employee who worked in the Far North (Article 318 of the Labor Code of the Russian Federation).

If a full-time employee agrees to resign before the end of the 2-month warning period about the upcoming dismissal, then he will have the right to receive not only mandatory severance pay (Article 178 of the Labor Code of the Russian Federation), but also additional (Article 180 of the Labor Code of the Russian Federation). The amount of the additional benefit will be determined from the same average cost per day as the mandatory benefit, but other working days will be paid: those that make up the gap between the date of actual dismissal and the date of completion of the 2-month warning period about the upcoming dismissal. It will be paid on the day of dismissal.

For more information on calculating benefits payable upon liquidation, read the article “Calculating severance pay upon liquidation of an organization .

Also, upon dismissal, a mandatory benefit is paid, which to an employee hired for a season will be paid in full (for 2 weeks allocated for job search), and to a former full-time employee - only for 1 upcoming full month. Further receipt of severance pay by a former full-time employee will occur as follows:

For the 2nd month (full if the employee was not employed there, or incomplete if employment occurred this month), benefits can be received upon its expiration upon presentation of evidence of lack of employment (work book) to the former employer. In the same way, benefits for the 3rd month are paid to an employee who worked in the Far North.
For subsequent months (the 3rd for a former regular full-time employee and the 4th–6th for an employee who worked in the Far North), benefits are paid in the same manner, but with the obligatory presentation of a certificate from the employment service confirming that the person immediately after dismissal ( no later than 2 weeks for a former regular full-time employee and 1 month for an employee who worked in the Far North) registered with it.

Features of payments upon dismissal of a pensioner

There are no differences in legislation when dismissing employees. If the employee is a pensioner or is on a well-deserved vacation, payments are made on a general basis.
The pensioner is paid compensation for vacation and severance pay. If within 60 days he does not find work in another organization, the average salary for this time is paid.
The pensioner cannot count on the third month according to Art. 127 Labor Code of the Russian Federation. Since citizens do not register with the employment service, and cannot be recognized as unemployed, due to the fact that they already have long service or old age benefits. But they can use the right to work with the help of an employment center.
A pensioner may also receive additional payments upon retirement. With the condition that they are reflected in the collective agreement of the enterprise. The amount of such benefits is not established by law - this is the right of the employer.
Pensioners in the Far North receive payments for three months.

Who fires the only employee?

It can be quite realistic that a participant (founder) of a liquidated legal entity is at the same time its director and remains the only employee. The procedure for his actions in organizing his own dismissal should be as follows:

As a participant (founder), he decides to liquidate the legal entity, appointing himself as the liquidator, to whom all functions for managing the legal entity are transferred.
He, as a participant (founder), decides to resign as a manager in connection with the liquidation of the legal entity and the appointment of a liquidator.
As the head of a legal entity, based on the decision of the participant (founder), he issues an order to resign as a manager due to liquidation. On this basis (clause 1 of Article 81 of the Labor Code of the Russian Federation), he dismisses himself, making an appropriate entry in the work book, which he has every right to do (clause 45 of the rules for maintaining work books, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225).
As a participant (founder), no later than 3 calendar days from the date of the decision on liquidation, he informs the registering Federal Tax Service about this in a special notification. The appointment of a liquidator is also reported there using a special form.
As a liquidator, he publishes information about liquidation in the press, then conducts an inventory, the data of which will form the basis of the interim liquidation balance sheet.
As a liquidator, before the date of exclusion of a legal entity from the Unified State Register of Legal Entities, it performs all necessary actions to terminate its existence, including submitting reports to the Federal Tax Service and paying taxes.

Read more about the composition and procedure for drawing up a balance sheet in the material “Balance Sheet (Assets and Liabilities, Sections, Types)” .

Procedure for dismissal for unexplained absence from work

Article 81 of the Labor Code of the Russian Federation gives the right to dismiss for absenteeism. If the employer decides to punish for absenteeism in this way, he must follow Article 193 of the Labor Code of the Russian Federation. The dismissal sequence in this case is as follows:

It is necessary to record the fact that you missed work. An act is drawn up indicating the period of time during which the citizen was absent.
The employee must be required to provide a written explanation. It must indicate the reason for absence.
If he refuses to explain his action, an act of refusal is drawn up.
A specially appointed commission or official of the enterprise prepares a conclusion in which it acknowledges the fact of absenteeism (or refutes it) and submits its proposals to the head of the organization.
An order to terminate the contract is issued, which the employee is introduced to under his signature.
An entry with the following wording is made in the work book and in the citizen’s personal card: dismissal for absenteeism, Article 81 of the Labor Code of the Russian Federation, subparagraph “a” of paragraph 6 of part one.

For absenteeism at work, the Labor Code of the Russian Federation provides for punishment not only in the form of dismissal. Much depends on the employer. For example, if a valuable employee skipped work, instead of terminating the contract, the manager can use other methods of influence: a reprimand, a warning, or deprivation of a bonus. If the situation repeats, dismissal cannot be avoided.

How to fire an employee who is not appropriate for the position (clause 3 of Article 81 of the Labor Code of the Russian Federation)?

An employee may not be able to cope with the work assigned to him for several reasons, for example:

His qualifications were overestimated by the employer upon appointment to the position.
The working conditions in which the employee is placed do not allow him to perform work at the proper level.

In both cases, the employee is not at fault. But if in the second case his unsatisfactory work cannot be considered a non-conformity, then the first one falls under this definition.

An employee can be recognized as unsuitable for a position if he/she simultaneously has:

Documented evidence of unsatisfactory performance.
Conclusions of the certification commission created in accordance with the requirements of the law, to which the employee is invited to carry out his certification. The procedure for conducting certification and the criteria by which qualifications are assessed must comply with those approved by internal regulations.
Participation in the certification commission of a representative of the trade union body (if one exists), of which the employee is a member (Article 82 of the Labor Code of the Russian Federation).

If recognition has taken place, the employee must be offered in writing a vacant position corresponding to his qualifications or a lower one. If the employer does not have one or the employee refuses it, then he can be fired.

This basis cannot be applied to:

a young specialist, since he obviously does not have the necessary qualifications;
to a minor without the consent of the labor inspectorate and the commission for minors (Article 269 of the Labor Code of the Russian Federation);
pregnant woman (Article 261 of the Labor Code of the Russian Federation);
a single mother with a child under 14 years of age or a disabled child under 18 years of age (Article 261 of the Labor Code of the Russian Federation);
a person on vacation or sick leave (Article 81 of the Labor Code of the Russian Federation).

When for some reason the application of this basis turns out to be unacceptable, you can use the dismissal procedure for systematic disciplinary offenses under clause 5 of Art. 81 of the Labor Code of the Russian Federation, consistently applying all types of existing disciplinary sanctions to the employee.

For more information about the existing types of disciplinary penalties, read the article “Types of disciplinary sanctions under the Labor Code of the Russian Federation” .

What threatens

Each employee needs to avoid such a situation for the following reasons:

financial losses. An employee who loses his job will have to look for a new one. This process takes a lot of time, and during this period a person has no cash income;
employers' reluctance. This entry in the work book confirms the employee’s unreliability.

Therefore, employers are extremely reluctant to accept such applicants for positions. Such dismissal does not entail any serious consequences for the employee. However, this situation should still be avoided.

The employee can also be reinstated to the position. To do this, he needs to file a claim in court or with the labor inspectorate.

Reinstatement is possible only if the following conditions are met:

the employee refused to come to work while on sick leave;
the employee refused to work overtime or work on the weekends specified in the schedule;
if the employer offered to change his place of work, for example in another area, and the employee refused;
if the employee has contraindications to his position, confirmed by a medical certificate;
if the employer incorrectly or illiterately filled out the dismissal order.

Thus, the absence of an employee from his workplace for more than 4 hours is counted as absenteeism.

For a single offense, the employer can simply warn the employee or deprive him of his bonus. However, he has every right to terminate the contract with the employee.

To do this, he needs to draw up a special act that confirms the employee’s absence from the workplace. Then fill out the dismissal order, as well as the work book.

After this, the employee is not officially registered with the enterprise. However, he can be restored to his previous position through the court.

What violations of discipline are considered gross and allow immediate dismissal?

Dismissal of an employee if he commits a single gross disciplinary offense related to work is possible immediately, bypassing educational measures (reprimand and reprimand). Such offenses are (Article 192 of the Labor Code of the Russian Federation):

Absenteeism, which is equivalent to absence from the place considered working for the employee, for more than 4 hours in a row, as well as during the entire working day or entire shift (subclause a, clause 6, article 81 of the Labor Code of the Russian Federation).
Appearing at work under the influence of any type of intoxicating substance (subparagraph b, paragraph 6, article 81 of the Labor Code of the Russian Federation).
Disclosure of any (personal, state, commercial, official) secrets (subclause 6 of Article 81 of the Labor Code of the Russian Federation).
Causing intentional harm (theft, embezzlement, destruction, damage) to someone else's property (subclause g, clause 6, article 81 of the Labor Code of the Russian Federation).
Actions that resulted in the infliction of severe consequences on people (accident) and property (accident) or the creation of a high probability of such consequences (subparagraph 6 of Article 81 of the Labor Code of the Russian Federation).
Actions that entail loss of trust: in terms of the values being served (clause 7 of Article 81 of the Labor Code of the Russian Federation) or in relation to concealment (distortion) of information about one’s income and property (clause 7.1 of Article 81 of the Labor Code of the Russian Federation).
An act of an immoral nature committed by a teacher (clause 8 of Article 81 of the Labor Code of the Russian Federation).
The adoption by the head of a legal entity, his deputy or the chief accountant of an unfounded decision, the consequence of which was significant material damage to the organization (clause 9 of Article 81 of the Labor Code of the Russian Federation).
Gross violation by the head of a legal entity or his deputy of his direct labor duties (Clause 10, Article 81 of the Labor Code of the Russian Federation).
Commitment by a teacher of a gross violation of the charter of an educational institution for the 2nd time within a year (clause 1 of Article 336 of the Labor Code of the Russian Federation).
Disqualification of an athlete or violation of anti-doping rules (Article 348.11 of the Labor Code of the Russian Federation).

[Labor Code] [Part Three] [Section III] [Chapter 13]
An employment contract can be terminated by the employer in the following cases:

1) liquidation of an organization or termination of activities by an individual entrepreneur;

2) reduction in the number or staff of employees of an organization or individual entrepreneur;

3) the employee’s inconsistency with the position held or the work performed due to insufficient qualifications confirmed by certification results;

4) change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

5) repeated failure by an employee to perform labor duties without good reason, if he has a disciplinary sanction;

6) a single gross violation by an employee of labor duties:

a) absenteeism, that is, absence from the workplace without good reason during the entire working day (shift), regardless of its duration, as well as in the case of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );

b) the appearance of an employee at work (at his workplace or on the territory of an organization - employer or facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcohol, narcotic or other toxic intoxication;

c) disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a decision of a judge, body, official authorized to consider cases of administrative offenses;

e) a violation by an employee of labor safety requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of such consequences;

7) 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 by the employer;

7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he is a party, failure to provide or provide incomplete or unreliable information about his income, expenses, property and property-related liabilities, or failure to provide or provide knowingly incomplete or unreliable information about income, expenses, on the property and obligations of a property nature of their spouse and minor children, opening (availability) of accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, ownership and (or) use of foreign financial instruments an employee, his spouse and minor children in cases provided for by this Code, other federal laws, regulatory legal acts of the President of the Russian Federation and the Government of the Russian Federation, if these actions give rise to a loss of confidence in the employee on the part of the employer. The concept of “foreign financial instruments” is used in this Code in the meaning defined by Federal Law No. 79-FZ of May 7, 2013 “On the prohibition of certain categories of persons from opening and having accounts (deposits), storing cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments”;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

9) making an unjustified decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;

11) the employee submits false documents to the employer when concluding an employment contract;

12) has become invalid;

13) provided for in the employment contract with the head of the organization, members of the collegial executive body of the organization;

14) in other cases established by this Code and other federal laws.

The procedure for certification (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.

Dismissal on the grounds provided for in paragraph 2 or 3 of part one of this article is permitted if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or work corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) which an employee can perform taking into account his state of health. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

In the event of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality, termination of employment contracts with employees of this unit is carried out according to the rules provided for cases of liquidation of the organization.

Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of this article, in cases where guilty actions giving grounds for loss of confidence, or, accordingly, an immoral offense were committed by the employee outside the place of work or at the place of work, but not in connection with the performance of his labor duties, is not allowed later than one year from the date of discovery of the misconduct by the employer.

It is not allowed to dismiss an employee at the initiative of the employer (except in the case of liquidation of an organization or termination of activities by an individual entrepreneur) during the period of his temporary incapacity for work and while on vacation.

Information on the application of a disciplinary sanction to an employee in the form of dismissal due to loss of confidence on the basis of clause 7.1 of part one of this article is included by the employer in the register of persons dismissed due to loss of confidence, provided for in Article 15 of the Federal Law of December 25, 2008 N 273-FZ “On combating corruption.”

What options are there for dismissing the head of a legal entity?

The dismissal of the head of a legal entity at the initiative of the employer is provided for in several paragraphs of Art. 81 Labor Code of the Russian Federation:

When there is a change of owner (clause 4, which also applies to deputies and the chief accountant). Such dismissal does not imply the guilt of these persons, is not mandatory, can be selective and is carried out within the first 3 months after the replacement of the owner (Article 75 of the Labor Code of the Russian Federation). Moreover, it is associated precisely with the transfer of ownership of the property of the entire legal entity to another owner, and not with a change in the composition of shareholders, not with reorganization, not with a change in jurisdiction, and not with a change of owner of one of the divisions.
As a result of negative consequences that occurred when making an unfounded decision (clause 9). This paragraph also applies to deputy managers and chief accountants, as well as similar persons of branches and representative offices. The determining factor here is the presence of guilt in the damage caused to the employer. Accordingly, it must be proven.
In case of a one-time gross violation of labor duties (clause 10) by the head of a legal entity or its branch (representative office) or their deputies. Such a violation could be, for example, failure to take measures to ensure occupational safety, resulting in an accident. This basis also requires evidence of the guilt of a certain person.
As a result of violation of the conditions stipulated by the employment contract (clause 13), for the sole head of the legal entity or persons included in its collegial executive body. Such a condition could be, for example, a ban on a manager working part-time with another employer, which is permitted by Art. 276 Labor Code of the Russian Federation.

Examples of payments upon dismissal of an employee due to redundancy

When leaving an enterprise, an employee receives an average salary of Art. 139 Labor Code of the Russian Federation. Let's say it was 22,300 rubles. This is exactly what the employee should receive.

But in some cases, there is a collective agreement of the enterprise, which specifies the amount of severance pay, for example, 35,000 rubles, then the payment will be exactly that, and not 22,300 rubles.

The collective agreement must include clauses indicating the amount of payments for staff reduction, agreement of the parties, and cancellation of the enterprise. In this case, the average salary is not a priority.

Example 1:

The employee starts working on 01.09.12, and at 24.06. 2014 falls under dismissal, having received notice from the employer. After two months, the employee quits on June 25, 2014. From the previous 12 months, his earnings amounted to 130 thousand rubles. Registration for a new enterprise was recorded on September 6, 2014. We will calculate his average earnings, the amount of compensation and benefits for unused vacation.
Benefit. 130,000: 12: 20 = 541.66 rubles. Where, 12 is the number of months, 20 is working days. As a result of calculations, we received the average salary of one day. Now 541.66 X 30 = 16,249.8 rubles, where 30 are calendar days.
Since the employee did not find a job in the first days, payment is made according to the average earnings of the former enterprise.
Second payment. Amount 541.66 x 31 = 16,791.46 rubles. Where, 31 is the next month of the calendar day.
Third payment. Payments will not be made since the employee is working at a new enterprise.
Unused vacation. In this case it is 10 months. We calculate the number of days that the employee did not take time off: 28 x 10: 12 = 23.33 days. From the calculation it is clear that 10 is the months worked, 12 is the number of months in a year. We get 541.66 x 23.33 = 12,636.93 rubles.

Example 2:

If we consider hypothetically early redundancy payments. Here, one working day is calculated using the same scheme.
Next, it is multiplied by the number of days of severance pay or days of unemployment each month.
The only thing that differs in this calculation is the additional compensation for early care.
Let's say that a person was assigned a certain date on March 30, 2014, after he was warned. If the two parties agreed and the employee left using the early dismissal method 18 days earlier, that is, March 12, 2014.
The employee receives additional compensation for these days. The average earnings of one day should be multiplied by this number. The result will be the final amount.

From here, we can conclude that the person who leaves due to early dismissal wins in receiving payments.

How can you get fired while on vacation?

Art. 81 of the Labor Code of the Russian Federation contains a direct ban on dismissal during the vacation period. However, there are exceptions to this rule, and they are associated with long vacations, which include parental leave. During this leave, dismissal becomes permissible (Article 261 of the Labor Code of the Russian Federation) if:

liquidation of the employer (termination of the activities of the individual entrepreneur);
expiration of a fixed-term employment contract.

Read more about the guarantees contained in Art.
261 of the Labor Code, read the material “Art. 261 Labor Code of the Russian Federation: questions and answers.” You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.