During the workflow, there may be various situations which are sometimes difficult to understand. Therefore, one should always follow legislative documents to resolve conflicts. last resort one that an employer can go to is layoffs. The employee must have committed a serious misconduct for such a decision to be made. Among the reasons that led to such consequences, one can distinguish dismissal due to loss of confidence. In any case, such a step must be documented.
Dismissing an employee
Relationships within a team can take many forms. However, the law equally protects the rights of the employer and the employee. All internal relations regulated by the Labor Code. When hiring, an employment contract must be concluded that defines the rights and obligations of an employee. In the future, its violation may entail administrative, and in some cases, criminal liability.
The dismissal process can be different character. The employee has the opportunity to pay off work by own will and the reasons can be very diverse. The most important thing in this case is that there is no pressure on him. The process of dismissal is not associated with any difficulties.
If the dismissal is initiated by the employer, it is required to have sufficient grounds for making such a decision. In case of unjustified dismissal, the court may reinstate the dismissed person, as well as punish the head administratively. In this connection, having made a decision to dismiss, the employer needs to study the law, as well as prepare the necessary documents.
The main reasons for the rupture by the head of the contract are described in Art. 81 Labor Code RF. They are considered as causes independent of the employee, and associated with his illegal actions. The first group includes such cases:
- Reduction;
- Liquidation of the enterprise;
- Mismatch. In this case, the low qualification of the employee, or health problems, may play a role. As a rule, they can be fired based on the results of certification.
Remember, you can not fire pregnant women, as well as employees on vacation or on sick leave. The only exception relates to the liquidation of an enterprise. Dismissing employees for the above reasons, the employer is obliged to pay them the average monthly salary.
Consider the acceptable reasons for dismissal related to the fault of the employee:
- Violation of discipline in a gross form. This may include absenteeism, being drunk or under the influence of drugs at work, divulging a secret, stealing, or acting in an accident;
- Constant failure to comply. In this case, the employee must already have administrative penalties;
- immoral act;
- Forgery of documents during employment;
- Dismissal due to loss of trust.
Loss of trust
So, any reason for dismissal must be justified, and the whole procedure must take place within the framework of the law. First of all, you need to find out whether the employee has committed actions on the basis of which he can legally be fired. In case of dismissal due to mistrust, the law does not provide clarification of which employee cannot be dismissed. It determines who can be fired on that basis.
The law notes that it is possible to dismiss by mistrust if the employee serving the values entrusted to him is guilty. This is clearly stated in clause 7 of article 81 of the Labor Code of the Russian Federation. The list of these employees is defined in the Ordinance of the Ministry of Labour. It is supposed to conclude a liability agreement with them. This list includes:
- Heads of cash desks, warehouses, pantries;
- Heads of shops and sections;
- household managers;
- Store directors, department heads and merchandisers;
- Cashiers, or employees performing their duties;
- Suppliers;
- Enterprise managers Catering and administrators.
The list is quite large, but the presence of a position in it does not yet give grounds to conclude an agreement. The second condition is the direct connection of the employee with the material values entrusted to him. Dismissal will follow as a result of violation of the contract, in case of material losses. Therefore, it is impossible to attract a chief accountant under this article, although he works with finances, all operations with them take place virtually.
It is also worth noting that the employee is held liable for the damage caused, without having an agreement in the following cases:
- Damage caused in the performance of official duties;
- The damage was caused by actions of a criminal nature;
- The damage was done while under the influence of alcohol or drugs;
- Intentional damage.
Possible reasons
After the conclusion of the liability agreement, the employee services the material or monetary values transferred to him. Trust in him is reflected in the instructions describing his duties and rights. The law does not reflect the actions that caused the dismissal under the article, however, the main cases can be identified:
- Corrupt practices;
- Actions that led to the loss or theft of monetary and material values;
- False information about income and expenses;
- Fictitious write-off;
- Keeping illegal savings in foreign banks.
The seventh paragraph of the article can be used when the misconduct committed is not related to the enterprise. For example, an employee, by a court order, must pay compensation after committing a wrongful act. This may cause the administration to lose confidence in him. At the same time, when dismissing him, it is enough to attach a court decision to the order.
However, with this wording, an employee cannot be fired if the misconduct was committed during a one-time performance of duties related to material values. They must be performed continuously. In this case, it must be proven that the employee deliberately committed unlawful acts. A group of persons who signed the contract is not subject to dismissal - they can be punished financially.
Procedure
Before starting the process, you need to have indisputable evidence employee's fault. Otherwise, such dismissal may be challenged in court. Therefore, it is worth collecting evidence. If you do not resort to the help of the police, you need to create a commission to investigate.
It is created based on a memo, which is compiled by the person who discovered the violation. It is performed in an arbitrary form, contains information about the act itself, as well as the time it was performed. It is no longer necessary if the violation was reported by law enforcement agencies.
The commission conducts an inventory of the existing values, but before that, the employee must give a receipt that everything is safe. He is required to draw up an explanatory note, for which he is given two days. It is better to apply to the Commission in this regard with a written request. It is written in an arbitrary form, with a mention of Article 193 of the Labor Code of the Russian Federation, which serves as its basis. In case of refusal by the employee to write an explanation, it is necessary to record this fact in a memorandum.
All facts collected by a special commission should be reflected in the act. It is drawn up in any form, confirming or denying the misconduct of the employee. When proven guilty, the commission proposes punishment. After that, the head, having familiarized himself with the conclusions of the commission, makes a decision. In case of dismissal, a two-week working off is not required.
Having all the evidence, the employer can dismiss the employee at any time.
But you have to follow the procedure. First of all, a notice is drawn up warning the employee of the dismissal. He must familiarize himself with it under signature. In case of refusal, an act is written.
After that, an order of the appropriate form is drawn up. The wording in it corresponds to the entry that will be made in the work book. It also notes documents proving the guilt of the dismissed person. Usually this:
- Missing act;
- Reporting note;
- Judgment.
Within three days, the employee must familiarize himself with it. An entry is made in the work book, fixing the reason for the calculation, and a reference to the relevant law. The number and date of the dismissal order is also recorded.
Employee calculation
After completing all the documents, leaving, the employee receives:
- work book;
- Income statement.
He also has a full financial settlement. He receives his due salary and vacation pay if no cash deductions for losses have been accrued. If the required compensation is big sizes must be reported to law enforcement.
Terms of termination of employment
In order for the dismissal to be legal, it is important to comply with all deadlines. It must occur before the expiration of a month from the moment the misconduct was discovered, excluding vacation and sick leave. However, this period should not be more than six months from the moment the act was committed, or two years if the claims were found during the audit. When committing an offense not related to official activities, the manager may dismiss the employee within a year from the moment of receiving information about it.
When carrying out all procedures, the allotted time limits must be strictly observed. Otherwise, if after the date of dismissal, which is in the order, the employee continues to work, the contract is extended.
Illegal dismissal
Once again, I would like to note the need for the correct execution of all documents and evidence of the guilt of an official. Otherwise, he will file a lawsuit in court, and win the case. As a result, the employer will be forced to reinstate the dismissed person, as well as pay him absenteeism and compensate for moral damage.
In addition, when contacting the labor inspectorate, where an employee can complain, a fine will be imposed on the employer. Its amount depends on the form of ownership of the enterprise.
The leader must understand that the decision to dismiss due to loss of confidence must be balanced. First of all, it will cause irreparable harm dismissed employee. Such a punishment is extremely painful and with such an entry in the work book it is extremely difficult to find a job.
Judicial practice shows that the courts objectively consider such cases. Often, employers do not understand the nuances of the wording, and fire people out of distrust who are not related to material values. Sometimes agreements on material liability are not drawn up or legal deadlines are not observed. All this leads to the cancellation of the dismissal.
Therefore, both parties in the event of conflict situation you need to get professional legal advice. This will save you from many mistakes and losses, and an unscrupulous employee will get what he deserves.
Hello. In this article, we will talk about dismissal due to loss of trust.
Today you will learn:
- What is the basis for dismissal for loss of confidence;
- How is the dismissal process carried out?
- What difficulties may arise for an employee after dismissal.
Grounds for dismissal for loss of confidence
Not only the employer, but also the employee must take into account that dismissal due to loss of confidence is possible in the following cases:
- When there is evidence that a subordinate has committed guilty acts as a result of which trust has disappeared. As a rule, this is often the well-known theft or neglect of other material values. It should be borne in mind that dismissal for this reason is possible only after an internal investigation. At the same time, it is absolutely not necessary to involve law enforcement officers, since the head can conduct an inspection on his own. If there is a security officer, then this investigation will be entrusted to him.
- For this reason, materially responsible employees who have been negligent in regard to material values or money may be dismissed. Often, for this reason, cashiers are fired.
- In the event that it turns out that the employee constantly violated the orders of the company, deceived the manager and brought deliberately incorrect information. In addition to the fact that, the employer can apply disciplinary action within the time limits established by law.
It turns out if the head proves theft, embezzlement Money or bribery, then we can talk about dismissal due to loss of confidence.
The main categories of employees for dismissal
You need to know that only those who have access to the company's material values can be fired due to a loss of confidence.
For example:
- A loader who has access to the goods of the company and can easily take them out of the warehouse in order to personally sell and receive money from the sale;
- A store clerk who steals or sells products without paying at the checkout;
- A cashier in a store who specifically charges customers a large fee and puts the difference in his pocket;
- A handyman who uses company equipment to work on the side and get paid for it.
The dismissal of the seller for this reason is the most common, since it is this category of citizens who is trying to earn "in his pocket."
Not impossible:
- , which works exclusively with non-cash payments;
- A commodity manager who has no material values;
- A secretary who disclosed information about the company's activities to competitors.
Dismissal due to loss of trust
In fact, the dismissal procedure is quite simple and includes several main steps.
Consider the order of dismissal:
- Written record of illegal actions of an employee of the company.
It should be borne in mind that there is no special form for fixing a violation. An employee who has identified a violation must write a free-form report addressed to the director.
Please indicate in your report:
- Name of the violator;
- The date and time the violation was discovered;
- The conditions under which it became clear that the employee was committing violations.
- An official investigation.
An investigation will be carried out only on the basis of an order from the head of the company. At the same time, a special commission should be created, at least 3 people who are not interested in the consequences of the investigation.
On the basis of the order, they stipulate exact dates and goals. Typically, the goal is to determine the cause of the damage and identify who was harmed.
The results of the investigation must be submitted to the head in writing. At the same time, the signature of each member of the commission must be present on the document. If, as a result of the audit, it turns out that the employee has violated the rules, then the dismissal occurs due to the loss of trust.
Before making an order and preparing all documents for dismissal, a specialist in the personnel department must request an explanatory note from the employee. If the employee refuses to admit guilt, then he is given a notice against receipt that he is obliged to provide an explanatory note within 2 days.
- Registration of documents.
AT without fail the employer needs to prepare an order for disciplinary action against the employee, which details his guilt. Only after that is done because of the loss of confidence.
- Pay.
The employee is entitled to pay for the time worked. Unused vacation days are also compensated.
Difficulties that may arise during dismissal
Dismissal of the director.
The procedure is slightly different from the procedure for terminating the contract with an ordinary employee. It should be borne in mind that a director can be dismissed due to loss of confidence only after the application of a disciplinary sanction, the decision on which is made at a special meeting.
Dismissal of the deputy and the prosecutor.
It is possible in the event that such offenses are committed as:
- Illegal participation in a commercial project for the purpose of making a profit;
- If an account is opened in a foreign bank.
It is extremely difficult to reveal the fact of violation, its proof can last from several days to a month. Main difficulty is to prove involvement in the violation. The public service is no ordinary grocery store, where violations can be detected in a matter of minutes.
Dismissal of a soldier.
As for the military, they can also be fired due to loss of confidence and deprived of numerous benefits. The complexity of the dismissal lies in the fact that before making a decision, a special check must be created as a result of which a decision will be made. The terms of verification are set for each military man individually.
It is also worth considering practice and taking into account cases when an employer fired an employee who did not work with commodity or material values under this article and the employee filed a lawsuit in court. At the same time, the law was on the side of the employee who was reinstated at work.
If this happens, the employer will have to not only return the employee to work and pay the previous one, but also pay moral compensation for the damage caused.
Also, an additional fine of up to 50,000 rubles may be imposed on the employer for the illegal dismissal of an employee under this article. It turns out that before dismissing an employee, it is necessary to prepare legal basis and only then make a decision.
Consequences of dismissal due to loss of confidence
To an employee who has violated the conditions, the employer can apply only those requirements that are permitted at the legislative level:
- Rebuke;
- Disciplinary action for the amount of the loss caused;
- Comment;
- Termination of labor obligations.
Since the employer indicates in the work book the article under which the labor Relations, the employee may face the following difficulties in the future:
- Interruption of seniority, since not every employer will agree to hire such an employee;
- The employee will receive unemployment benefits only in the first 3 months after the dismissal, after which the amount will be reduced to a minimum;
- To a temporary ban on this type of activity.
Therefore, the employee must be prepared for the fact that it will be extremely difficult. You may have to get a contract and do the work for less pay.
The dismissal of employees at the initiative of the employer, even if they caused harm to the organization, is always an extremely “acute” moment. As with any disputes and conflicts, there are two points of view: the employee and the organization. The HR specialist is in a situation where, on the one hand, he needs to take into account the requirements of the employee's manager, and on the other hand, listen to the position of the most guilty employee, and offer the head of the enterprise a reasonable and legal solution. Sofia Povzikova, Head of HR Administration Coleman Services considers a situation related to the theft of property of the employer.
Let's remember the law. In case of theft of property, the employee can be dismissed at the initiative of the employer and the personnel service specialist can use two grounds of the Labor Code Russian Federation:
- Paragraph “d” of paragraph 6 of Article 81 “Theft at the place of work (including small) property of others, embezzlement, deliberate destruction or damage thereof, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases about administrative offenses»;
- Clause 7 of Article 81 "Commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer."
Not all employers are ready to contact the police and seek the initiation of a criminal case or administrative proceedings (long, laborious to collect documents and, as a rule, compensation is unlikely), therefore, when dismissing employees, clause 7 of Art. 81 of the Labor Code of the Russian Federation, colloquially called "loss of confidence".
Loss of trust
The dismissal of an employee due to the loss of confidence in him is not done very often, since the procedure for preparing documents carries many nuances. However, if there is a clear algorithm of actions, it is not difficult to prepare a package of documents.
Dismissal due to loss of confidence is possible only for employees who directly serve monetary or commodity values (reception, storage, transportation, distribution, etc.). These can be specialists working in the positions of cashiers and accountants, cashiers, forwarding drivers, sellers, as well as almost all logistics positions.
It does not matter whether an agreement on full liability (individual or collective) is concluded with the employee (s) or not. It also does not matter what labor duties (main or additional) include the maintenance of monetary or commodity values.
It is impossible on this basis to dismiss pregnant women, as well as employees on vacation or on sick leave.
Guilty actions
Neither the Labor Code of the Russian Federation, nor any other document establishes a list of guilty actions that may serve as a reason for the loss of confidence. The employer is given the right to independently determine what actions of the employee allow us to talk about the loss of confidence.
The reasons for the loss of trust of employers may be actions (inaction) of the employee, leading to shortage, theft, loss, destruction of the property entrusted to the employee, violation cash discipline, as well as fraudulent actions, expressed in weighting, shortfall, measurement, underweight, unreasonable write-off of goods and valuables, misappropriation of property and / or money, understatement or overstatement of prices for goods, etc.
When preparing a dismissal under paragraph 7 of Art. 81 of the Labor Code of the Russian Federation, it is important to remember that the fault of the employee must be proven, i.e. a simple establishment of a fact, for example, the loss of property or the shooting of a CCTV camera, will not be enough for dismissal under this article.
Dismissal procedure
The actions of the employee, giving grounds for the loss of confidence in him, must be considered as disciplinary offense. Therefore, the dismissal must be made on time and taking into account the requirements of Art. 193 of the Labor Code (attention to the deadlines!).
- Written explanations of guilty actions must be demanded from the employee. The requirement is best drawn up with a special document and handed over to the guilty employee against signature. If the employee evades receiving the demand or it is not possible to hand over the demand to the employee, the document can be sent to his address by registered mail.
- The employee has two days to provide explanations (Article 193 of the Labor Code of the Russian Federation). If the employee did not provide an explanation within the period established by law or refuses to provide explanations at all, it is necessary to draw up an appropriate act on this. The absence of an explanatory note does not affect the employer's right to dismiss an employee on the basis of loss of confidence.
- It is necessary to request written explanations from the employee who discovered the fact of illegal actions. It can be memo, report, etc. The document must describe in detail the circumstances of the discovery of guilty acts (indicating the time, date, place and other persons present).
- If the guilty actions of the employee are discovered during the inventory or audit of inventory items, then the inventory lists and / or audit reports (with the obligatory indication serial number, date and time of compilation, signatures of persons participating in the inventory (audit)) must also be added to the documents for dismissal.
The employer may initiate an internal investigation, which will have to identify the perpetrators and collect evidence of the guilty actions. To conduct an investigation, the employer issues an order that creates a special commission of employees of the organization (at least three) who are not interested in the final result of the audit; the period of its validity, the powers of the persons who are members of the commission are established. All members of the commission must be familiarized with the order against signature. Also, the members of the commission are obliged to store all materials of the internal investigation.
If a repeated inventory (audit) is necessary to prove the employee’s guilt, an inventory order is issued, an inventory commission is created, inventory lists are formed, the commission enters the territory with financially responsible persons and counts the property.
The presence of financially responsible persons, including the guilty employee, during the inspection is mandatory. The commission ensures “transparency” during the verification and eliminates all sorts of misunderstandings, when, for example, a materially responsible person may declare an incorrect calculation of property by third parties in the territory under their control.
Upon completion of the investigation, the commission draws up an act describing the guilty actions committed by the employee. The commission determines the degree of guilt of the employee and makes proposals on the measure of punishment for the guilty person. The act must contain the date of drawing up, the composition of the commission, a link to the order to create a commission for a specific purpose, a list of evidence collected. The act is signed by all members of the commission.
It is necessary to familiarize the offender with the act - he must be familiarized with the decision of the commission against signature. If the offender refuses or evades signing, then you can read the act aloud. The fact that the employee refused to familiarize himself with the act, as well as the fact that the act was read aloud to the employee, a corresponding entry is made on the act. This entry is certified by the signatures of the persons participating in the commission.
First, an order to apply a disciplinary sanction in the form of dismissal. There is no unified form of such an order, but it must contain:
- Reference to the basis (for example, to the act of conducting an internal investigation);
- Full name, position, division of the employee;
- A brief description of the guilty actions of the employee;
- Items employment contract or job description that were violated;
- type of disciplinary action.
The employee should be familiarized with this order against signature no later than 3 working days from the date of its issuance (this period does not include periods of absence of the employee). If the employee refuses to familiarize himself with the order, then it is necessary to draw up an appropriate act (Article 193 of the Labor Code of the Russian Federation).
Secondly, a dismissal order in the unified form T-8 or in the form established by the organization. If the order cannot be brought to the attention of the employee or the employee refuses to get acquainted with it against signature, a corresponding entry is made directly on the order (Article 84.1 of the Labor Code of the Russian Federation)
An entry is made in the employee's work book about the termination of the employment contract in strict accordance with the wording of the Labor Code.
On the day of termination of the employment contract, the employer is obliged to make a final settlement with the employee: pay the lost wages, as well as compensation for unused vacations and other amounts due to the employee. From the amount of lost wages, you can withhold the amount of damage, but only if the amount of damage does not exceed the average monthly earnings.
Compensation payments are paid in in full. The employer is not entitled to deductions from them. Even to make amends! Damage, the amount of which exceeds the average monthly salary of an employee, is recovered in judicial order.
Employer's right
According to Art. 240 of the Labor Code of the Russian Federation, the recovery of damages from an employee is not the obligation of the employer, but his right. Also, the dismissal of an employee in case of guilty actions is not the obligation of the employer.
Specialists personnel services they know numerous examples when the heads of organizations decide to keep an employee in the team and apply a milder punishment to the employee - a reprimand, a reduction in the size of the bonus, etc. There are also numerous examples where employers keep employees workplace, but agree on a gradual repayment of damage without involving third parties.
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Due to loss of trust from a former employer - legal procedure prescribed by law as effective method get rid of dishonest employee. Cases of dismissal due to loss of trust are now quite common in labor practice. When applying this legal basis, it is important that each stage of the dismissal is properly documented, as any violations made during this procedure may serve as the basis for litigation with the former employee. result litigation it may become the recognition of the actions of the employer as unacceptable and illegal, with consequences in the form of reinstatement at the previous place of work and (or) amendments to the work book of the dismissed employee. How should the procedure for dismissal due to loss of confidence be carried out? Who can and which of the employees cannot be fired on this basis?
Grounds and conditions for dismissal
As a rule, when we are talking due to lost trust, the basis for this is paragraph 7 of Article 81 of the Labor Code of the Russian Federation. You should know that dismissal of an employee due to loss of trust is permissible under the following conditions:
Available irrefutable evidence the fact that the employee committed guilty actions that served as a reason for the loss of trust. Such actions may include theft, proven facts of corruption, neglect of the material values entrusted to the employee, concealment of information about income or a conviction for economic crimes, and so on. General list acts contains the Labor Code of the Russian Federation (see clause 7.1 and clause 7, article 81). Dismissal due to loss of confidence must be proven in the course of an internal investigation. At the same time, there is no need to involve an employee in the framework of an administrative (criminal) case.
Such a basis as the article “Dismissal due to loss of confidence” can be applied exclusively to employees personally serving (performing the functions of storing, transporting, receiving, issuing, and so on) material values, especially cash. This condition must be documented for the employee, on the basis of specific clauses of the labor contract (agreement), job descriptions, agreements on full (collective or individual) liability, and so on. This principle, which applies to cases of dismissal on the grounds discussed in this article, is perhaps the most violated. An example is the dismissal "on the seventh point" of employees holding positions such as Chief Accountant, economist accountant. Experienced lawyers recommend using the “loss of confidence” in relation to this category of employees with extreme caution, focusing on whether the employee is responsible for direct contact with funds, the functionality of a cashier or accountant, for example. The absence of such duties for a dismissed "accounting worker" often leads to the fact that in court the former employee is easily and quickly reinstated by the employer in his position or receives the required compensation.
If the loss of the employer's trust occurred as a result of actions related to the performance of labor duties, in connection with the loss of trust will also be considered as a disciplinary measure. For this reason, an indispensable condition for the termination of employment relations on this basis will be strict compliance with all stages of the disciplinary sanction procedure within the time limits established for this.
Dismissal from public or military service
You should be aware that dismissal due to loss of confidence can be made not only on the basis of the above article, but using the norms of federal legislation related to a particular profession. For example, this applies to persons employed in the public service, law enforcement or professional military.
If we consider the dismissal of a serviceman in connection with the loss of confidence, then when issuing an order in this case, one should be guided by the Regulations on the procedure for performing military service, namely the clause on the procedure for dismissing a serviceman. On the basis of paragraphs. d. 1, 2 of part 3, a serviceman may be dismissed with the wording "due to loss of confidence" if:
Intentionally not provided (or provided incompletely, unreliably) information about the income and property of the employee himself, his wife and minor children.
A soldier carries out any entrepreneurial activity.
A soldier participates in the management of a commercial organization, receiving for this cash payment, as well as in the case of activities in the field of management bodies or other bodies of non-profit foreign organizations. There are a number of exceptions to these grounds for dismissal, all of which are defined by the Federal Law (this edition) “On military duty and military service”.
There is a case of failure to take measures to resolve (prevent) a conflict of interest, one of the parties in which is the serviceman himself. A commander who was aware of the fact of the personal interest of a subordinate who did not take action may also be dismissed.
Similar provisions governing the grounds for dismissal due to loss of confidence are found in the federal laws "On the Prosecutor's Office", "On the Police", "On the State Civil Service" and so on. At the same time, the need to prove the guilt of the dismissed employee and strict adherence to the terms and procedures for dismissal remains common.
When can't you get fired?
Even in the presence of fully proven guilty actions, dismissal due to loss of trust is not permissible:
In relation to a pregnant woman.
During the period of temporary absence of the employee (vacation or sick leave). In this case, you will need to wait until the employee returns to his work duties.
There is also a restriction for the dismissal of a minor: dismissal due to loss of confidence will need to be agreed with the local labor inspectorate department and a representative of the commission on minors.
Stages of the dismissal procedure
As mentioned above, dismissal due to loss of confidence for misconduct committed as part of the execution of direct official duties, the Labor Code refers to disciplinary sanctions (Article 192). In this regard, the termination of labor relations on the basis under consideration must be carried out in the manner prescribed by Article 193 of the Labor Code of the Russian Federation. This means that due to the loss of trust:
Detection and fixation of the guilty actions of the employee.
Conducting an official investigation.
Obtaining a written explanation from the employee (drawing up an act of refusal of explanations).
Act on the results (results, conclusions) of the official investigation.
Issuance of orders.
Dismissal.
Deadlines for dismissal based on loss of trust
An important condition for observing the legality of the dismissal procedure will be the termination of the employment contract within the time limits established for this by labor legislation.
It is permissible to apply dismissal due to loss of confidence within one month, starting from the moment when the employee's misconduct was discovered. This period does not include:
The time required to coordinate the decision to dismiss with the trade union organization (if there is this representative body).
Periods of absence of the guilty employee at the workplace (sick days and vacations).
It should be remembered that it is impossible to apply disciplinary action (in this case dismissal) later than six months from the date on which the wrongful acts were committed. The exception is misconduct revealed as a result of an audit or financial and economic inspection: in this case - no later than a two-year period.
Internal investigation: basis, documentation
The actions of an employee that caused damage or created a risk of causing damage to the material assets of the employer must be recorded in an official document: an inventory act, a memorandum (official) note from the immediate supervisor, an act of identified shortage, etc. Such a document is the basis for starting an official investigation, the purpose of which is either to confirm the guilt of the employee, or to establish his innocence.
The authority to conduct an internal investigation is vested in a specially created commission. The commission for the investigation is created by an order for the organization, which contains the reasons for the work on the internal investigation, information about the members of the commission (full name, position, list of powers), validity period, etc. The commission should include employees who are not personally interested in the results of the investigation, but who have sufficient competence to understand the circumstances of the misconduct committed.
The commission is obliged, if necessary, to conduct an inventory within the established time limits, as well as to request and prepare documentation that will serve as confirmation of the employee's guilt. Any action taken in the course of an official investigation must be recorded in the relevant acts, official or certificates, protocols. In addition, the duty of the commission is to obtain an explanation from the employee himself.
Explanation or refusal to explain the employee
The requirement for an employee to provide explanations on the fact of a misconduct is recommended to be drawn up official document by organization and hand over to the employee under signature. AT special occasions, for example, if an employee refuses to sign an acknowledgment of receipt of a request, an act of refusal should be drawn up. In this case, the requirement to the employee can not only be handed in personally, but also sent by mail, by registered mail with notification.
According to the general procedure provided for imposing a disciplinary sanction, the employee must be given two working days to provide explanations. If, after this period, no explanations are received, the corresponding act (on the failure to provide or on the refusal of the employee to give explanations) must be drawn up.
The results of the commission's work
The result of the work of the commission should be an act on the results of the investigation. The document must indicate:
End date of the investigation.
Information about the members of the commission.
Information about the employee involved in the internal investigation.
A statement of the circumstances that gave rise to the official investigation, taking into account the degree of guilt and the severity of the guilt.
Evidence of the employee's guilty actions (or evidence of innocence) in the form of a list with attachments.
Signatures of members of the commission.
Dismissal for actions not related to the implementation of labor functions
Termination of labor relations with an employee, in the event that the reason for the loss of trust was actions not related to the performance of his work duties, does not apply by law to disciplinary sanctions. For this reason, the procedure for terminating an employment relationship is greatly simplified: no internal investigation is required, and the deadlines for making a decision on dismissal are up to one year from the moment when the employer was informed about the employee's misconduct. An argument for dismissal can be a copy of a document confirming the fact that an employee has committed intentional guilty actions, for example, a copy of a court decision.
At the same time, the termination of labor relations must also be carried out in accordance with the procedure established by the labor law.
Orders
If, as a result of the conclusions of the commission, a decision was made to dismiss due to
Dismissal due to loss of confidence is carried out by issuing two orders:
Order on the application of disciplinary action. This document contains not only mandatory information about the employee (full name, position, etc.), but also information about the offense committed, indications of the provisions of the collective and labor agreements and other normative documents organizations violated as a result of the guilty actions of the employee, the circumstances and degree of guilt. Not later than three days, the employee should be familiarized with the order under the signature. If the employee refuses to sign, an act of refusal is drawn up, which is certified by the signatures of the members of the commission.
Filling out a work book
The employer's entry is entered in the work book with the same wording of the reason for dismissal as in the order. Example:
On the day of dismissal of the employee, he is given his issued employment history.
Employee benefits
Despite the fact that we are often talking about actually caused material damage, this circumstance does not relieve the employer from the obligation to make all the due payments. On the day of termination of the employment relationship, the employee must receive the final payment for wages, as well as all bonuses and compensatory allowances. Compensation for what has been caused former employee damage, the employer, of course, has the right to demand exclusively through the courts.
E.V. Shestakova,
CEO
Actual Management LLC,
Ph.D.
Dismissal for loss of confidence has become widespread in recent times, the most high-profile dismissal on this basis can be called the resignation of the mayor of Moscow - Yu.M. Luzhkov. However, in the near future it is planned to amend the legislation, according to which the practice of dismissal for loss of confidence among officials will become widespread, the next stage will be an increase in cases of dismissals for loss of confidence in commercial organizations, for example, cases of dismissals of general directors, heads of branches and representative offices, chief accountants . In this article, we will consider the issue legal regulation amendments to the legislation governing the issue of dismissal on this basis.
Grounds for dismissal for loss of trust
Dismissal due to loss of confidence can be carried out when employees commit such guilty actions that gave the employer reason to lose confidence in them under paragraph 7 of part one of Article 81 of the Labor Code of the Russian Federation. However, if the employer does not have evidence that the employee has committed actions that led to a loss of confidence, dismissal for this reason is recognized as illegal (paragraph 45 of the resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).
Evidence of the legality of dismissal includes:
- a court decision on bringing to responsibility for theft;
- facts of waste based on the results of the inventory;
- evidence of the employee's guilty actions, for which the employer applied a penalty in the form of dismissal.
The difficulty for the employer lies in the fact that the labor code does not contain specific grounds for dismissal for loss of confidence, this concept is not disclosed in the legislation and is subjective.
For example, trust can be lost in the following cases:
- theft and theft;
- bribery;
- fraud;
- Violations of cash discipline, etc.
However, the law does not define the procedure for dismissal and collection of evidence, for example, it is not clear how the employer should act if the criminal case is not opened or terminated due to lack of evidence, if the employee carried out any activity not within the framework of his direct duties or was not financially responsible person. In paragraph 2 of paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2, the court notes that if the fact of embezzlement, bribery and other mercenary offenses is established in the manner prescribed by law, the employee may be dismissed due to loss of confidence in him and in that case , when the specified actions are not related to his work, for example, if an employee servicing inventory items provides customers with a gun store Additional services(on issuance of licenses for firearms, modernization of the weapons sold, etc.). The provision of such intermediary services is a violation of the current legislation, for which criminal liability is provided (Articles 223 and 291 of the Criminal Code of the Russian Federation). Therefore, the employer, having learned about such actions of the employee, may terminate the employment relationship with him due to the loss of trust.
But in practice, employers prefer to use other wording and dismiss in connection with a single or multiple violation of labor duties.
At the same time, it is advisable to consider the algorithm for dismissal due to loss of confidence. The dismissal mechanism is analogous to the mechanism for imposing a disciplinary sanction in the form of dismissal.
1. A commission is created.
2. The facts of violations committed by the employee are established, for example, the facts of theft, evidence of theft, the amount of losses is established.
3. Explanations of the employee are requested, acts are drawn up in case the employee refuses to testify. Prior to the issuance of an order to apply a disciplinary sanction in connection with the loss of trust, a written explanation must be required from the employee.
4. All actions of the members of the commission and the information obtained during the investigation are documented in acts, certificates, memoranda, which are attached to the materials of the investigation.
If a criminal case has been opened, then the materials can be attached as evidence of the employee's guilt.
5. Based on the results of the work of the commission, an act or a decision is prepared. The employee in respect of whom the investigation was carried out must be familiarized with the decision of the commission against signature. In the event of his refusal or evasion of signature, an appropriate act is drawn up.
6. If the guilt of the employee is confirmed, he is dismissed on the basis of an order. In fact, two orders are being issued: on the imposition of a disciplinary sanction and on dismissal in the form No. T-8. Letter No. 1493-6-1 dated June 1, 2011 from Rostrud of the Russian Federation states that the issuance of two orders is not a violation of labor laws.
7. Information about the dismissal is entered in the work book.
At the same time, the difficulty lies in the fact that the commission is not a body authorized to investigate the facts of criminal cases or cases of administrative offenses, so the conclusions of the commission may be incorrect and challengeable in court. Finally, the employee can accuse the employer of defamation.
In addition, dismissal on this basis will lead the employer to court.
Planned changes in legislation
According to the press service of the State Duma, the draft law “On Amendments to Certain legislative acts Russian Federation in connection with the improvement government controlled in the field of combating corruption”, expanding the grounds for dismissal for mornings with corruption and initiated by the Preziate of Trust. The law is recognized as a combatant of the Russian Federation. The deputies adopted an amendment initiated by the President of the Russian Federation, allowing the dismissal of officials at all levels, governors, mayors, as well as law enforcement and intelligence officers due to "loss of confidence." This term is introduced into Russian legislation for the first time. The introduction of the term "loss of trust" will allow it to be used by analogy with law and commercial organizations. The law also provides for the provision of income declarations, reconciliation of income with real figures. Thus, the law establishes the obligation of credit institutions registering and tax authorities provide information on income, property and liabilities of a property nature to authorized bodies and officials. Law enforcement officers are allowed to conduct operational-search activities in order to establish the authenticity of the information provided by applicants.
The amendments stipulate the cases triggering such a dismissal mechanism. The reason for the loss of trust may be: failure to take measures to prevent and resolve conflicts of interest to which he is a party; failure to provide information about their income, property and property obligations, as well as income, property and property obligations of their spouse (spouse) and minor children, or submission of deliberately false or incomplete information; participation on a paid basis in the activities of the management body of a commercial organization, with the exception of cases established by federal law; implementation entrepreneurial activity; being a member of management bodies, boards of trustees or supervisory boards, other bodies of foreign non-profit non-governmental organizations and their structural subdivisions operating in Russia, unless otherwise provided by an international agreement, or Russian legislation. Amendments to the second reading, the rule on dismissal in case of loss of confidence applies, among other things, to employees of internal affairs bodies, prosecutors, investigative committee, customs, tax authorities, military personnel. Thus, the introduced norms regarding officials will affect the development of labor legislation in terms of:
- establishing clear grounds for dismissal due to loss of confidence;
– the possibility of requesting income declarations;
- the possibility of dismissal without a corresponding decision or court verdict.
In general, a broad interpretation of the wording “loss of trust” can negatively affect the parity of relationships between an employee and a subordinate: if earlier cases of dismissal due to loss of trust were exceptional, now such cases can become a system. The conflict of interest is the most point of contention in changes in legislation, since the leader himself may be interested in the conflict. In the future, this mechanism can be transferred to commercial organizations.
A fairly common reason for the dismissal of employees was the reason - the loss of trust. However this procedure exemption from work duties can only be used in individual cases specified in the current legislation. First, the worker must be connected, one way or another, with monetary or commodity values. Secondly, another option may be for the worker to commit acts of a guilty nature that give grounds for his leadership to lose confidence. Such actions must necessarily have an evidence base, otherwise dismissal on the above grounds may be challenged in court and, accordingly, declared illegal.
Grounds for dismissal due to loss of confidence
At the legislative level, the possibility of dismissal of an employee due to loss of confidence is provided for in paragraphs 7 and 7.1 of Part 1 of Article 81 of the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation).
So, paragraph 7 of part 1 of Art. 81 of the Labor Code of the Russian Federation provides for dismissal for the commission of guilty actions by an employee directly servicing monetary or commodity values, if these actions give rise to a loss of confidence in him by the employer.
the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
In accordance with paragraph 7. 1 of part 1 of article 81, the grounds for dismissal due to loss of confidence are the following actions of the employee:
- failure by the employee to take measures to prevent or resolve a conflict of interest to which he is a party,
- non-submission or submission of incomplete or false information about their income, expenses, property and obligations of a property nature, or failure to provide or submission of deliberately incomplete or false information about income, expenses, property and obligations of a property nature of their spouse (wife) and minor children,
- opening (presence) of accounts (deposits), keeping cash and valuables in foreign banks located outside the territory of the Russian Federation,
- possession and (or) use of foreign financial instruments by an employee, his spouse (wife) and minor children
A prerequisite for dismissal for those listed in paragraph 7.1 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, the grounds are that these actions should give rise to a loss of confidence in the employee on the part of the employer.
It is also possible to dismiss a person under such an article, if facts of theft, taking bribes and other violations of such a plan were revealed, but provided that they are in no way connected with their main work.
That's what they exist for job descriptions, which contain all the rights and obligations of the worker, since it is through them that confidence is expressed in him directly by all forms of organizations providing jobs.
In order for the dismissal procedure for such a reason to be recognized as legitimate, the employer must comply with a number of certain rules. First, conduct an internal investigation. Secondly, in the process of investigation, if there is a need to conduct an inventory procedure. Thirdly, in any case, demand an explanatory note from the worker. Fourthly, if necessary, impose a disciplinary sanction on the employee, etc.
Dismissal from public service due to loss of confidence
The grounds for the dismissal of a civil servant in connection with the loss of confidence are established by Art. 59.2 federal law dated July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation”.
Such grounds include the following actions of the employee:
- failure to take measures by a civil servant to prevent and (or) resolve a conflict of interest to which he is a party;
- non-submission by civil servants of information about their income, expenses, property and property obligations, as well as income, expenses, property and property obligations of their spouse and minor children, or submission of deliberately false or incomplete information;
- participation of a civil servant on a paid basis in the activities of the governing body commercial organization, with the exception of cases established by federal law;
- carrying out entrepreneurial activities by civil servants;
- inclusion of a civil servant in the management bodies, trustees or supervisory boards, other bodies of foreign non-profit non-governmental organizations and their structural divisions operating on the territory of the Russian Federation, unless otherwise provided by an international treaty of the Russian Federation or the legislation of the Russian Federation;
- violations by a civil servant, his wife (husband) and minor children of the prohibition to open and have accounts (deposits), keep cash and valuables in foreign banks located outside the territory of the Russian Federation, own and (or) use foreign financial instruments.
Criteria for classifying actions as sufficient to cause loss of confidence
Despite all these reservations, to date, the current labor legislation does not indicate specific actions and violations that can be considered as sufficient grounds for the loss of trust.
This is also related to the fact that the so-called loss of confidence itself is nothing more than an evaluative concept that the employer can classify at his own discretion, taking into account a number of different factors.
As mentioned earlier, one of the reasons may be certain culpable acts. As practice shows, most often they include various damage to values \u200b\u200bof a commodity or material nature, theft of the latter, theft of money, their loss for some reason, and much more. In addition, very often such actions include non-compliance with cash discipline, the sale of goods or services inconsistent with the established prices, writing off something for fictitious reasons, non-compliance with the provisions of regulations of a local nature, as well as other types of fraud. There is also an option when the actions committed by the worker could or have already caused harm to his direct employer and can also be classified as one of the reasons for the loss of confidence and subsequent dismissal for this reason.
Documentation of actions that are the basis for dismissal due to loss of confidence
Due to the fact that today unified form the documentation that is compiled upon detection of the above actions on the part of the employee does not exist, then as a rule they are recorded in the form of a memorandum from the person who directly recorded them or was the one who discovered the result of these actions.
The memorandum must necessarily contain data about the person who submits it, namely his full name, place, time, as well as all the circumstances that influenced the performance of these actions. In cases where this information provided by competent government bodies or third parties who do not have direct relation to this organization, then compiling a note is not a mandatory component of this process. If an inventory procedure was carried out, then one memorandum in this case is not enough, an act must be drawn up that fixes all violations.
These documents serve as the basis for the employer to conduct a legitimate internal investigation in the direction of his employee in order to establish the fact of either his guilt or innocence. In order for everything to take place in accordance with the current legislation, a specialized commission is created, which should include not only people competent in the industry, but at the same time they should act as persons of no interest both on the part of the employee and the employer.
This commission is convened after the issuance of an internal order and must consist of at least three people. The order must necessarily contain information about the members of the commission, which includes the position, full name, authority, duration of the commission's work, and much more.
How to properly draw up an order for loss of trust and dismissal
To begin with, it is necessary to note the fact that before the immediate preparation and subsequent issuance of this order, a disciplinary sanction must be imposed on the worker, the order for which is developed by the organization independently due to the lack of a single form.
Dismissal of an employee due to loss of trust
It must contain data on the full name of the worker, his position, the structural unit where he carried out his labor activity.
As well as general information about the misconduct that violated the provisions of the labor or collective agreement, due instructions and other regulations, with mandatory documentary evidence of these violations. In addition, the recovery order must reflect the circumstances in which the guilty actions were committed, the degree of guilt and the severity of this guilt on the part of the employee.
Only after the issuance of this order, the head has the right to dispose of the issuance of the main order for dismissal, and in this document all the details of the previous order regarding the employee are indicated. This order is subject to familiarization and signature by the worker.
When carrying out this procedure, a record is made in the work book of a person that he was dismissed due to loss of confidence for certain reasons, links to which are in the Labor Code of the Russian Federation. A work book is issued immediately on the day of dismissal.
It should be noted that this type of dismissal implies the full retention by the employee of such payments as wages for all hours worked and not paid, compensation payments, due bonuses and allowances that are issued on the last working day. The employer does not have the right to withhold any amount of material or moral damage, since in this case, dismissal of this is not provided for at the legislative level.
In case of occurrence contentious issues, or by the refusal of the management to pay all the money due to his employee, he has the right to file statement of claim to court. Also, the employer, if he has material claims against his employee, who lost confidence and was fired, can apply to the court with a corresponding application.
Order to terminate the employment contract. Dismissal due to loss of confidence (sample filling)
Unified form N T-8
Approved
Decree of the State Statistics Committee of Russia
dated 05.01.04 N 1
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How to get fired due to loss of trust
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