How can an employer fire an employee?
LC RF Article 81. Termination of Employment Contract by the Employer’s Initiative
Guides to Personnel Matters and Labour Disputes. Issues in the application of Article 81 of the Labor Code
A guide to personnel issues:
A Guide to Labor Disputes:
An employment contract may be terminated by the employer in cases of:
1) liquidation of the organization or termination of activities by an individual entrepreneur;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
2) a reduction in the number of employees or staff of an organization or an individual entrepreneur;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
3) non-compliance of the employee with the position held or work performed due to insufficient qualification, confirmed by the results of certification;
(clause 3 as amended by Federal law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
4) change of the owner of the property of the organization (with regard to the head of the organization, his deputies and the chief accountant);
5) repeated failure by the employee to perform his/her job duties without a valid reason, if the employee has a disciplinary penalty
6) one-time gross violation by the employee of his job duties:
(a) absenteeism, i.e. absence from the workplace without valid reasons during the entire working day (shift), regardless of its (its) duration, as well as in case of absence from the workplace without valid reasons for more than four consecutive hours during the working day (shift);
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
b) when the employee appears at work (at his/her workplace or on the territory of the employer organization or facility where the employee has to perform the work function on behalf of the employer) in a state of alcohol, drug or other toxic intoxication;
(item “b” in edition of the Federal law from 30.06.2006 N 90-FZ)
(as revised in the preceding version)
c) Disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with performance of his job duties, including disclosure of personal data of another employee;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
d) theft (including petty theft) of property, embezzlement, deliberate destruction or damage established by a court verdict or resolution of a judge, body or official empowered to consider administrative offenses, which came into force at the place of work;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
e) a breach of occupational safety and health requirements established by the occupational safety and health commission or a commissioner for occupational safety and health, if such a breach resulted in severe consequences (industrial accident, accident, catastrophe) or was known to create a real threat of such consequences;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
7) the employee who directly services monetary or commodity valuables commits culpable actions, if these actions give rise to loss of confidence in him/her by the employer;
7.1) the employee’s failure to take measures to prevent or resolve a conflict of interest to which he/she is a party, the failure to submit or submission of incomplete or inaccurate information about his/her income, expenses, property and property obligations or the failure to submit or submission of deliberately incomplete or inaccurate information about income, expenses, property and property obligations of his/her spouse and underage children, opening (maintaining) accounts (deposits), holding cash The term “foreign financial instruments” is used in this Code in the meaning defined by the Federal Law N 79-FZ of May 7, 2013 “On the prohibition for certain categories of persons to open and hold accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments”;
(Clause 7.1 is introduced by Federal Law N 231-FZ from 03.12.2012, as amended by Federal Laws N 280-FZ from 29.12.2012, N 102-FZ from 07.05.2013, N 505-FZ from 28.12.2016)
(as revised in the preceding version)
9) taking an unjustified decision by the head of the organization (branch, representative office), its deputies and chief accountant which entailed the violation of safety of property, its unlawful use or other damage to the organization’s property
10) one-time gross violation by the head of the organization (branch, representative office), its deputies of their employment duties;
11) submission by an employee to the employer of false documents at the conclusion of the employment contract;
(as revised by Federal Law dated June 30, 2006 N 90-FZ)
(as revised in the preceding version)
12) no longer in force. – Federal Law dated June 30, 2006 N 90-FZ;
(as revised in the preceding version)
13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases provided for by this Code and other federal laws.
The procedure for conducting an attestation (Paragraph 3 of Part One of this Article) shall be established by labor legislation and other regulatory legal acts containing norms of labor law, by local normative acts adopted with due regard to the opinion of the representative body of employees.
(part two in the edition of the Federal law from 30.06.2006 N 90-FZ)
(as revised in the preceding version)
Dismissal on the grounds stipulated by paragraphs 2 or 3 of part one of this Article is allowed, if it is impossible to transfer the employee with his/her written consent to another job available with the employer (both a vacant position or job corresponding to the employee’s qualifications, and a vacant lower position or a lower-paid job), which the employee can perform given his/her health condition. However, the employer must offer the employee all eligible vacancies available in the area. The employer is obliged to offer vacancies in other locations, if it is stipulated by the collective agreement, agreements, or employment contract.
(part three, as amended by Federal Law dated 30.06.2006 N 90-FZ)
(as revised in the preceding version)
In case of termination of the activity of a branch, representative office or any other separate structural subdivision of the organization located in another location, the termination of the employment contract with the employees of this subdivision shall be made in accordance with the rules provided for the cases of liquidation of the organization.
(part four in the wording of the Federal law dated 30.06.2006 N 90-FZ)
(as revised in the preceding version)
Dismissal of an employee on the grounds stipulated by clauses 7 or 8 of part one of this article in cases where culpable actions giving rise to the loss of confidence or amoral misconduct was committed by the employee outside the place of employment or at the place of work, but not in connection with performance of their job duties, shall not be allowed later than one year after the employer discovered the misconduct.
(Paragraph five is introduced by the Federal Law dated 30.06.2006 No. 90-FZ)
An employee may not be dismissed by the employer (with the exception of liquidation of the organization or termination of individual entrepreneur’s activity) during his temporary disability and while on vacation.
(Paragraph six is introduced by the Federal Law dated 30.06.2006 No. 90-FZ)
The information about the disciplinary punishment in the form of dismissal in connection with the loss of confidence pursuant to Clause 7.1, Part One of this Article shall be included by the employer into the register of the persons dismissed in connection with the loss of confidence provided for by Article 15 of Federal Law № 273-FZ dated December 25, 2008 “On Counteracting Corruption”.
How do you dismiss an employee if he doesn’t want to leave “amicably” and find a new one for free?
How to dismiss an employee without compensation, what to prepare for in case of a labour dispute, and why dismissal under the article does not always work – the lawyer of GorodRabot.ru, Yuriy Kozhinov, described his personal experience and the subtleties of Russian labour legislation.
How to dismiss an employee at the employer’s initiative
Termination of employment at the employer’s initiative is very important and is regulated in detail in Article 81 of the Russian Labor Code.
Conditionally they can be divided into three groups.
Dismissal for objective reasons (Article 81 of the Labour Code).
For misconduct, disciplinary offence and incompatibility with the position held.
Objective reasons, in addition, include:
- liquidation of the organization, termination of IE;
- redundancy;
- change of ownership of the property of the organization (if we are talking about employees who occupy managerial positions).
In these cases, the dismissal of an employee is possible without his consent, but it is necessary to comply with the procedural actions stipulated by law. The legality of the dismissal may have to be proven in court.
Dismissal for disciplinary action
For failure to perform duties without a valid reason, gross violation of labor discipline.
An employee can be dismissed for failure to perform his/her duties without a valid reason only if he/she has already been disciplined under Article 81.5 of the Russian Labor Code.
Severe violations of labor discipline for which the principle of repetition does not apply Article 81.5 of the Russian Labor Code refers to
- absenteeism (absence from the workplace for more than four consecutive hours);
- presence at the work place intoxicated by alcohol;
- document fraud;
- Disclosure of commercial, state, official and other legally protected secrets;
- theft at the workplace;
- violation of occupational safety requirements (if this led to serious consequences – for example: an accident, an accident);
- other cases provided for by the law in force.
In this case, the rules of proper labor behavior (labor discipline) must be brought to the employee in an appropriate form, included in the employment contract and instructions, with which the employee is familiarized against signature.
In the case of labor misconduct, the employer must still comply with the procedure for termination – establish and fix the fact of the violation, get an explanation from the employee, draw up an order of dismissal, familiarize the employee with the order of dismissal against his signature.
Dismissal for inconsistency with the position
The most painless way to dismissal for the employer. Non-compliance with the position is easy to prove in court.
The employer can terminate the contract, even if the employee has not committed misconduct.
The reasons for such termination are:
- failure to pass the probationary period;
- Lack of knowledge that is necessary to perform the duties (clause 3 of Article 81 of the Labor Code of the Russian Federation) – proven after the certification of all employees of the company. It is not possible to send only this employee for certification;
- health problems that prevent the performance of the job (Article 77.8 of the Russian Labour Code).
In order to dismiss an employee for the above reasons the employer must:
- Provide for a probationary period in the employment contract;
- Establish qualification requirements in the employment contract or job description (it is desirable that the requirements exist objectively, and not before the dismissal).
If a situation arises where an employee has to be terminated, we recommend negotiating and parting by mutual agreement of the parties with a small compensation. In 95% of cases, a severance pay of 1-2 months is sufficient incentive for the employee to go along. The cost of processing the dismissal and legal costs may exceed the amount of compensation, so “it is easier to pay”.
The employer will avoid legal and reputational risks, and the employee will not spoil his employment record with an “ugly” dismissal.
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