"labor law", 2010, N 2

It must be said that dismissal due to circumstances beyond the control of the parties is not used very often in practice, however, this group of grounds for dismissal is very specific.

As some authors note, an order (instruction) to dismiss an employee on the grounds listed in the named article is issued by the employer upon presentation of documents confirming the circumstances, the proof of which allows the dismissal of the employee to be recognized as legal and justified. Therefore, it should be recognized that the application of those listed in Art. 83 of the Labor Code of the Russian Federation grounds for termination employment contract to a certain extent depends on the volitional actions of its parties<1>. It seems to us that the legislator has invested in the wording of Art. 83 Labor Code somewhat different meaning. So, if, for example, Art. 81 of the Labor Code of the Russian Federation states that an employment contract "may be terminated by the employer" if there are grounds provided for in it, then Art. 83 of the Labor Code of the Russian Federation stipulates that, due to circumstances beyond the control of the parties, an employment contract is subject to termination. In other words, the employer is obliged to dismiss the employee in the presence of the circumstances provided for in this article. IN this case the decision to terminate the employment relationship does not depend on the discretion of the parties. The initiative to terminate the employment contract in this case may come from third parties who are not a party to the contract (primarily from the state represented by authorized bodies). This applies, for example, to dismissal due to conscription for military or alternative civilian service replacing it. The basis for terminating the contract here is the decision (summon) of the military registration and enlistment office on conscription for military service. Upon reinstatement of an employee who previously performed this work, the basis for termination of the contract will be the relevant decision of the state labor inspectorate or court. In addition, in some cases, under Art. 83 of the Labor Code, the termination of an employment contract may be associated not with actions, but with events. For example, termination of the contract in connection with the death of an employee or employer - individual.

<1>

Another feature is the exhaustive nature of the list of those circumstances that serve as the basis for the termination of the employment contract under Art. 83 of the Labor Code. This means, first of all, that the parties to the employment contract are deprived of the right to refer to other circumstances that prevent the continuation of the employment relationship. Moreover, art. 83 of the Labor Code of the Russian Federation does not even contain the traditional wording "and other circumstances provided for by law." In other words, this list cannot be expanded by federal law. In this regard, I would like to note that the new version of Art. 83 of the Labor Code of the Russian Federation significantly expands the grounds for terminating an employment contract with an employee due to circumstances beyond the control of the parties. We consider this to be a serious and well-founded change. labor law precisely because the list of grounds for termination of an employment contract due to circumstances beyond the control of the parties is exhaustive. The previous version of this article did not name, for example, disqualification or expiration of a license (when it is necessary) as grounds for termination of an employment contract due to circumstances beyond the control of the parties. Often in practice, paradoxical situations arose when an employee could not continue to work due to circumstances beyond his control, but could not be dismissed by the employer due to the lack of an appropriate reason for dismissal. For example, the driver in his spare time violated the Rules traffic, as a result of which he was deprived of the right to control vehicle. On the one hand, the employee cannot fulfill his labor duties, and on the other hand, there are no signs of his guilt in non-performance or improper performance of these duties, and the employer cannot dismiss him under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Meanwhile, earlier Art. 83 of the Labor Code of the Russian Federation did not provide for the appropriate grounds for dismissal.

Finally, the specifics of the registration of the said dismissal should be attributed to the features of dismissal due to circumstances beyond the control of the parties. So, according to the Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books" (as last amended) and the Instructions for filling out work books, approved by the Decree of the Ministry of Labor of Russia of October 10, 2003 N 69, upon termination of the employment contract due to circumstances beyond the control of the parties, an entry is made in the work book on the grounds for termination of the employment contract with reference to the relevant paragraph of Art. 83 of the Labor Code. For example: "Fired due to non-election to the position, clause 3 of part 1 of article 83 of the Labor Code Russian Federation"or" The employment contract was terminated due to the death of the employee, clause 6 of part 1 of article 83 of the Labor Code of the Russian Federation.

Calling up an employee for military service or sending him to an alternative civilian service that replaces it

In this case, the agenda of the military enlistment office for conscription for military service is the basis for the employer to issue an order (instruction) to terminate the employment contract and dismiss the employee. Alternative civilian service - special kind labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The assignment to alternative civilian service is carried out in accordance with the Federal Law of July 25, 2002 "On Alternative Civil Service" (as last amended). The law establishes that citizens perform alternative civilian service, as a rule, outside the territories of the constituent entities of the Russian Federation in which they permanently reside. Upon dismissal of an employee on the specified grounds, the employer is obliged to pay him a severance pay in the amount of two weeks of average earnings.

As some authors note, labor legislation does not contain any restrictions on the term for terminating an employment contract in connection with the conscription of an employee for military service or sending him to an alternative civilian service, and therefore, the date of termination of an employment contract is determined by agreement of its parties.<2>. However, it is obvious that the employment contract can be terminated not earlier than the submission to the employer of the summons for the employee to appear at the recruiting station to be sent to the place of military service (instructions to leave for the place of military service) or to send him to an alternative civilian service that replaces it, but not later than the deadline specified in these documents. As a rule, the delivery of these summonses is made no later than 3 days before the appointed time for the appearance of conscripts at the recruiting station.

<2>Shchur-Trukhanovich L.V., Shchur D.L. Dismissal on all counts: Practical guide. 2005.

Reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court

Due to circumstances beyond the control of the parties, an employment contract may be terminated due to the reinstatement of an employee who previously performed this work, by decision of the state labor inspectorate or a court. An employment contract with an employee who was taken in his place is subject to termination.

The decision on reinstatement at work may be taken by the state inspectorate upon establishing the fact of the illegality of the dismissal or transfer of the employee. In this case, we are talking, as a rule, about the reinstatement of an illegally dismissed employee. However, as it is rightly noted in the specialized literature, a decision on reinstatement at work can be made by a court of general jurisdiction both in relation to illegally dismissed or transferred workers, and in some other cases.<3>. For example, when canceling a court decision on recognizing a citizen as missing in the event of his appearance (Article 44 Civil Code RF) he can be restored by the court in labor rights. The same situation is also possible in case of cancellation of a court decision on declaring a citizen dead in the event of his appearance (Article 46 of the Civil Code of the Russian Federation).

<3>Pokrovskaya M.M., Strogovich Yu.N., Shchur D.L. Dismissal: consultations on complex issues // Personnel of the enterprise. 2005. N 1.

The specific basis for termination of the employment contract upon reinstatement of an employee who previously performed this work is a mandatory order of the state labor inspectorate to eliminate violations of labor legislation and other regulatory legal acts containing labor law norms, or judgment.

The deadline for fulfilling the labor inspectorate's order is specified in the order itself.

A court decision to reinstate an illegally dismissed employee is subject to immediate execution. The employer, on the day following the issuance (actual receipt) of such a decision, is obliged to issue an order (instruction) to reinstate the employee at work in accordance with the decision made and to allow the employee to return to his previous job.

At the same time, the dismissal of an employee holding this position or performing the relevant work is allowed when it is impossible to transfer him to another job or when he does not agree with such a transfer. Upon dismissal of an employee under paragraph 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation, the employer pays him a severance pay in the amount of two weeks of average earnings.

Non-election to office

In accordance with paragraph 3 of part 1 of Art. 83 of the Labor Code of the Russian Federation, an employee is subject to dismissal from work if he is not elected to a position, if he occupies an elective position. In some cases labor Relations arise as a result of the election (election) to office. For example, in this order, an employment contract is concluded with the rector of the higher educational institution. In these cases, the non-election of the employee to this position for a new term is the basis for terminating the employment contract concluded with him in accordance with paragraph 3 of part 1 of Art. 83 of the Labor Code of the Russian Federation.

As a rule, election to elective positions is carried out for a certain period, therefore, a fixed-term employment contract is concluded with an elected person. Moreover, the term of such an agreement, as a rule, is limited to the term for which the person is elected. Obviously, after this period, the employment contract with the employee is terminated precisely in connection with the expiration of the employment contract, and not due to non-election to the position. As some authors rightly believe, due to circumstances beyond the control of the parties, an employment contract with an employee can be terminated in cases of early elections (if such a possibility is provided for by the rules establishing the procedure for election to a position), i.e. during the period of validity of a fixed-term employment contract, or the postponement of elections to a later date after the expiration of the employment contract<4>. In the latter case, the contract is considered extended for an indefinite period and it cannot be terminated due to the expiration of the period.

<4>Kurennoy A.M., Mavrin S.P., Khokhlov E.B. Commentary on the Labor Code of the Russian Federation. Moscow: Jurist, 2005.

Condemnation of an employee to a punishment that precludes the continuation of the previous work, in accordance with a court verdict that has entered into legal force

The entry into force of a court verdict is the basis for terminating the employment contract only if the employee is sentenced to a punishment that excludes the possibility of continuing this work. If the punishment does not exclude the possibility of continuing this work (for example, corrective labor), termination of the employment contract in accordance with paragraph 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation will be illegal. In accordance with the Criminal Code of the Russian Federation, to punishments, the application of which entails the impossibility of continuing work and, consequently, the termination of the employment contract under paragraph 4 of part 1 of Art. 83 of the Labor Code of the Russian Federation, one should include deprivation of the right to hold certain positions or engage in certain activities, arrest for a period of one to six months, restriction of liberty and imprisonment (Article 44). Termination of an employment contract on this basis is allowed only after the entry into force of a court verdict. The verdict enters into force after the expiration of the period established for the cassation appeal, or its recognition as lawful and justified by the cassation court.

Termination of an employment contract with persons deprived of the right to hold certain positions or engage in certain activities has certain features. In this case, the employer must fulfill a number of requirements provided for by the Penal Code. So, according to Art. 34 of the Criminal Code, the administration of the organization in which the convict works is obliged to:

a) no later than three days after receiving a copy of the court verdict and a notification from the penitentiary inspectorate, release the convicted person from the position that he is deprived of the right to occupy, or prohibit him from engaging in certain activities, send a message to the penitentiary inspectorate about the fulfillment of the requirements of the sentence;

b) submit, at the request of the penitentiary inspection, documents related to the execution of punishment;

c) in case of change or termination of the employment contract with the convict, within three days, notify the penitentiary inspectorate about this;

d) in the event of dismissal from the organization of a convict who has not served his sentence, make an entry in his work book on the basis on which, for how long and what position he is deprived of the right to hold or what activity he is deprived of the right to engage in.

Upon dismissal on this basis, the following entry is made in the dismissal order and the work book: "Fired in connection with a conviction to a punishment that excludes the continuation of the previous work, in accordance with the court verdict, which has entered into force, paragraph 4 of part one of Article 83 of the Labor Code of the Russian Federation ". It should be borne in mind that, in accordance with the Rules for maintaining a work book established by the current legislation, upon termination of an employment contract with an employee convicted in accordance with a court sentence to deprivation of the right to occupy certain positions or engage in certain activities and who has not served the sentence, an entry is made in the work book on which on the basis for how long and what position he is deprived of the right to hold (what activities he is deprived of the right to engage in)<5>.

<5>Decree of the Government of the Russian Federation of April 16, 2003 N 225 "On work books" // SZ RF. 2003. N 16. Art. 1539.

Recognition of an employee as completely incapable of work in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation

It is necessary to distinguish this ground for termination of an employment contract from the norm of paragraph 8 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of an employee to transfer to another job, which is necessary for him in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts, or the absence of an appropriate job for the employer). In the latter case, dismissal is allowed if it is impossible to transfer the employee with his consent to another job or position that is not contraindicated for him for health reasons. If the employee is recognized as completely disabled, then there can be no talk of any transfer and the employment contract with him is terminated due to circumstances beyond the control of the parties.

In this regard, the concept of "completely incapable of work" needs clarification.

The basis for dismissal in this case is the conclusion of the medical and social examination (MSEC), which is carried out by the State Service for Medical and Social Expertise.

To date, the Decree of the Government of the Russian Federation of February 20, 2006 N 95 “On the procedure and conditions for recognizing a person as disabled” is in force, which, in particular, regulates the procedure for sending a person to a medical and social examination and the procedure for conducting it<6>. Order of the Ministry of Health and Social Development of Russia dated August 22, 2005 N 535 approved the criteria used in the implementation of medical and social expertise<7>.

<6>SZ RF 2006. N 9. Art. 1018.
<7>Order of the Ministry of Health and Social Development of Russia dated August 22, 2005 N 535 "On approval of the classifications and criteria used in the implementation of medical and social examination of citizens by federal government agencies medical and social expertise" // Bulletin of normative acts of federal executive bodies. 2005. N 38.

According to these criteria, the ability to work includes:

• a person's ability to reproduce special professional knowledge, skills and abilities in the form of productive and efficient work;
• the ability of a person to carry out labor activities at a workplace that does not require changes in sanitary and hygienic working conditions, additional measures for the organization of labor, special equipment and equipment, shifts, pace, volume and severity of work;
• the ability of a person to interact with other people in social and labor relations;
• ability to motivate labor;
• ability to follow the work schedule;
• ability to organize the working day (organization of the labor process in time sequence).

The criterion for establishing the 1st degree of limitation of the ability to work is a health disorder with a persistent moderate disorder of body functions, caused by diseases, the consequences of injuries or defects, leading to a decrease in qualifications, volume, severity and intensity of the work performed, the inability to continue working in the main profession if it is possible to perform other types of work of lower qualification in normal conditions labor in the following cases:

• when performing work under normal working conditions in the main profession with a decrease in the volume of production activity by at least two times, a decrease in the severity of labor by at least two classes;
• when transferring to another job of lower qualification under normal working conditions due to the inability to continue working in the main profession.

The criterion for establishing the 2nd degree of limitation of the ability to work is a health disorder with a persistent, pronounced disorder of body functions due to diseases, the consequences of injuries or defects, in which it is possible to perform labor activities in specially created working conditions, using auxiliary technical means and (or) with the help of other persons.

The criterion for establishing the 3rd degree of limitation of the ability to work is a health disorder with a persistent, significantly pronounced disorder of body functions, caused by diseases, the consequences of injuries or defects, leading to a complete inability to work, including in specially created conditions, or contraindicated work activity.

Evaluation of indicators of the ability to work is carried out taking into account all available professional knowledge, skills and abilities. In this sense, the following case from the practice of the Supreme Court of the Russian Federation is interesting<8>.

<8>Determination of the Supreme Court of the Russian Federation of February 9, 2007 N 46-В06-40.

Example. M. applied to the court for an appeal against the conclusion of the specialized occupational pathological bureau of medical and social expertise, referring to the fact that he had received an industrial injury while working at KPO ZIM. According to the conclusion of the ITU of April 5, 2004 N 24, the degree of loss of professional ability to work is 40 percent. However, according to the conclusion of the ITU, heavy physical labor, work with a forced position of the body, and increased internal abdominal pressure are contraindicated for him. Before his labor injury, he worked as a 5th grade bricklayer. The work of a bricklayer is hard work, associated with the lifting of weights, with a change and a forced position of the body. When bending down to lift bricks, there is an increase in internal abdominal pressure, and according to the conclusion of the ITU, this is contraindicated for him, and therefore he is deprived of the opportunity to perform work in his specialty. Referring to the fact that the degree of loss of professional ability to work should be determined from the ability of the victim to perform work in the previous specialty or position, and also to the fact that he cannot perform the work of a bricklayer of the 5th category, M. asked the court to cancel the conclusion on establishing a 40% loss of professional ability to work and establish 100% loss of professional ability to work.

The courts refused M. to satisfy the claim. By a decision of a judge of the Supreme Court of the Russian Federation of September 6, 2006, the case was requested to the Supreme Court of the Russian Federation and by a decision of a judge of the Supreme Court of the Russian Federation of October 13, 2006, it was transferred for consideration on the merits to the court of the supervisory instance - the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation Federation.

The Judicial Board left the decisions of the lower courts in force, indicating that the plaintiff mistakenly believes that the loss of the ability to work at the same workplace in the previous specialty after a work injury is an unconditional basis for recognizing the victim in all cases as completely disabled with the establishment of 100% loss of professional working capacity. In addition to the profession of a bricklayer, at the time of injury, M. had the professions of an electrician of the 4th category, a tester of measuring systems of the 4th category, the work experience and qualifications for which were comparable to his work as a bricklayer. M.'s ability to use his professional skills is confirmed by the fact that in 2002 he was hired as an electrician. The court stated that the plaintiff has no signs of a pronounced violation of body functions and absolute contraindications for performing any kind of professional activity and that he has the opportunity to carry out labor activities in other specialties - an electrician of the 4th category, a tester of measuring systems of the 4th category - acquired by him before the accident.

A novelty of the current version of the Labor Code, aimed at strengthening guarantees for a dismissed employee, is the payment of a severance pay upon dismissal on this basis in the amount of two weeks of average earnings, provided for in Art. 178 of the Labor Code of the Russian Federation.

Death of an employee (or employer - an individual) or recognition of him as missing or declaration of death

In the event of the death of an employee, the order to dismiss him is issued by the representative of the employer on the basis of a death certificate issued by the registry office.

Recognition as missing or declared dead is carried out by the court, on the basis of the decision of which the employer issues an appropriate order.

According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence.

A citizen may be declared dead by a court if there is no information about his place of residence in the place of his residence for five years, and if he has gone missing under circumstances that threatened death or give reason to assume his death from a certain accident - within six months (Article 45 of the Civil Code of the Russian Federation).

Declaring dead is legally equivalent to physical death. The decision of the court, by which a citizen is declared dead, is the basis for the registration authority to make an entry about death in the book of state registration of acts of civil status (Article 279 of the Code of Civil Procedure of the Russian Federation).

The day of death of a citizen declared dead is the day when the court decision on declaring him dead comes into force. If a citizen is declared dead who went missing under circumstances threatening death or giving reason to assume his death from a certain accident, the court may recognize the day of death of this citizen as the day of his alleged death.

An application for recognizing a citizen as missing or declaring him dead can be submitted by any interested person, i.e. including employer or employee. The said application must indicate for what purpose it is necessary for the applicant to recognize the citizen as missing or declare him dead, and must also set out the circumstances confirming the citizen’s unknown absence, or circumstances that threatened the missing person with death or giving reason to assume his death from a certain unfortunate case (Art. 277 Code of Civil Procedure).

In the event of the appearance or discovery of the place of residence of a citizen recognized as missing or declared dead, the court cancels the decision (Article 44 of the Civil Code of the Russian Federation). Civil legislation regulates only property relations in the event of annulment of a court decision on recognizing a citizen as missing or declaring him dead. The question arises: is such a citizen subject to reinstatement at work? Some authors answer this question in the affirmative. So, V.I. Mironov believes that a citizen in this situation should be restored in rights, including labor<9>. The worker who takes workplace this citizen may be dismissed under paragraph 2 of part 1 of Art. 81 of the Labor Code of the Russian Federation, since the basis for restoration is a court decision, which cancels the recognition of a citizen as dead or missing.

<9>Mironov V.I. Labor Law of Russia: Textbook. Journal "Personnel Management", 2005.

The onset of emergency circumstances preventing the continuation of labor relations (military operations, catastrophe, natural disaster, major accident, epidemic and other emergency circumstances), if these circumstances are recognized by a decision of the Government of the Russian Federation or a public authority of the relevant subject of the Russian Federation

The employment contract may be terminated due to the occurrence of extraordinary circumstances that prevent the continuation of the employment relationship. The law refers to such emergency circumstances as military actions, catastrophes, natural disasters, accidents, epidemics, etc. Moreover, according to the literal wording of paragraph 7 of part 1 of Art. 83 of the Labor Code, termination of an employment contract on this basis is allowed if the indicated emergency circumstances are recognized as such by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation.

According to the Federal Law of December 21, 1994 N 68-FZ "On the protection of the population and territories from natural and man-made emergencies" (as amended)<10>The Government of the Russian Federation issues resolutions and orders in the field of protection of the population and territories from emergency situations and ensures their implementation (Article 10). State authorities of the constituent entities of the Russian Federation adopt, in accordance with federal laws, laws and other regulatory legal acts in the field of protecting the population and territories from emergencies of an intermunicipal and regional nature (Article 11).

<10>SZ RF. 1994. N 35. Art. 3648.

An emergency situation is a situation in a certain territory that has developed as a result of an accident, dangerous natural phenomenon, catastrophe, natural or other disaster that may cause or have caused human casualties, damage to human health or the environment natural environment, significant material losses and violation of the living conditions of people.

It should be noted that the termination of the employment contract upon the occurrence emergency must be objectively necessary and, in the event of a dispute, the employer will have to prove the existence of a causal relationship between the occurrence of the relevant events and the dismissal of the employee.

Disqualification or other administrative punishment, excluding the possibility for the employee to perform duties under an employment contract

According to Art. 3.11 of the Code of Administrative Offenses of the Russian Federation, disqualification as an administrative punishment consists in depriving an individual of the right to borrow leadership positions in the executive body of the legal entity, to be a member of the board of directors (supervisory board), to carry out entrepreneurial activities to manage the legal entity, as well as to manage the legal entity in other cases provided for by the legislation of the Russian Federation. Disqualification is established for a period of six months to three years.

Other administrative penalties that make it impossible for an employee to perform labor duties may include: administrative arrest, administrative deportation of a foreign citizen or stateless person from the Russian Federation (if the employee is a foreign citizen or stateless person), deprivation of a special right (for example, the right to drive a vehicle) .

It should be borne in mind that the dismissal of an employee on this basis is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer.

Expiration, suspension for more than two months, or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, other special right)

An employment contract with an employee may be terminated due to circumstances beyond the control of the parties, due to expiration, suspension for a period of more than two months, or deprivation of the employee of a special right (license, right to drive a vehicle, right to carry weapons, other special law) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility for the employee to fulfill the obligations under the employment contract.

In this case, a number of situations should be distinguished. First of all, if the special right is suspended for up to two months (inclusive), the employer does not have the right to terminate the employment relationship with the employee. According to Art. 76 of the Labor Code, he can remove such an employee from work without pay. However, it should be noted that such a suspension will be legal if it is impossible to transfer the employee, with his written consent, to another job available to the employer (both a vacant position or job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job) that the employee can perform with considering the state of his health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

If the employee is deprived of a special right for a period of more than two months, then the employer must offer him another job, and if it is impossible to transfer him, he must terminate the employment contract with him.

Termination of access to state secrets, if the work performed requires such access

According to the changes made to the Labor Code, the termination of access to state secrets is now also the basis for the termination of an employment contract due to circumstances beyond the control of the parties. Previously, in this case, the contract was terminated at the initiative of the representative of the employer, i.e. in accordance with Art. 81 of the Labor Code of the Russian Federation. This change in the Labor Code seems to us to be quite reasonable, since termination of the contract at the initiative of the employer is his right, but not his obligation. Termination of access to state secrets objectively entails the impossibility of continuing work.

In itself, this ground is not related to the fault of the employee, however, the termination of access to state secrets may occur both as a result of the employee’s guilty actions, and for other reasons. Cases in which the admission of an official or citizen to state secrets may be terminated are listed in Art. Art. 22, 23 of the Law of the Russian Federation of July 21, 1993 "On State Secrets" (as amended). Such cases are, in particular:

1. a single violation by an official or a citizen of his obligations related to the protection of state secrets;
2. the occurrence of circumstances that are grounds for denying an official or a citizen access to state secrets:

a) recognition by the court as incapable, partially incapacitated or a recidivist, being under trial or investigation for serious crimes, having an unexpunged conviction for these crimes;

b) he has medical contraindications for work using information constituting a state secret;

c) permanent residence of himself and (or) his close relatives abroad and (or) registration by the said persons of documents for leaving for permanent residence in other states;

d) as a result of verification measures, the actions of the person being processed that pose a threat to the security of the Russian Federation are revealed;

e) his evasion from verification activities and (or) the communication of knowingly false personal data to them.

Termination of an employment contract on this basis is possible only if the performance of labor duties requires access to state secrets, which should be provided job description or official regulations. In addition, the relevant condition must be included in the employment contract. Otherwise, dismissal on this basis will be illegal.

Example. So, for example, A.A. Bulatova filed a lawsuit against the federal state unitary enterprise "Special Design Bureau of Fire Fighting Equipment" for reinstatement, payment for forced absenteeism and compensation for non-pecuniary damage<11>.

<11>Determination of the Supreme Court of the Russian Federation of April 13, 2004 N 35-G04-5 // Bulletin of the Supreme Court of the Russian Federation. 2004. No. 10.

The statement is motivated by the fact that a contract was concluded between her and the defendant, in accordance with paragraph 1 of which she was appointed to the position of head of the planning and economic department of the said enterprise. By Order No. 43, she was dismissed due to the termination of access to state secrets.

A.A. Bulatova did not agree with the dismissal on this basis, since the contract concluded with her did not provide for access to state secrets. When she was hired, she was not familiar with the Regulations, according to which she can perform the functions of the head of the planning and economic department only if she has a form 2 admission. In her opinion, the real motive for the dismissal was the dissatisfaction of the director of the Federal State Unitary Enterprise "OKB PT" V.A. Ilyin by the fact that she reported the shortcomings in the work of the Federal State Unitary Enterprise "OKB PT" to a higher organization.

By the decision of the Tver Regional Court, the claims of A.A. Bulatova are fully satisfied.

The cassation appeal of the federal state unitary enterprise "Special Design Bureau of Fire Fighting Equipment" raised the issue of canceling the court decision in connection with the violation of substantive law.

Having checked the case materials and discussed the arguments of the cassation appeal, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation found no grounds for satisfying it.

In accordance with the provisions of the Labor Code of the Russian Federation, an employment contract is terminated in the event of termination of access to state secrets, if the work performed requires access to state secrets.

According to Art. 23 of the Law of the Russian Federation of July 21, 1993 N 5485-1 "On State Secrets" the termination of the access of an official or citizen to state secrets is an additional basis for terminating an employment agreement (contract) with him, if such conditions are provided for in the employment agreement (contract) .

Restoring the plaintiff at work, the court rightfully pointed out that the plaintiff's employment contract did not specify as a condition the obligation to have access to information constituting a state secret. This condition was not included in the employment contract both when she was hired and during the entire period of her employment with the defendant. That is, the plaintiff was not charged with the obligation to work with information constituting a state secret, and access to such information was not issued, therefore, the dismissal could not be made due to the termination of access to state secrets, which she did not have.

Evidence that the above duties were imputed to her, the defendant did not provide.

Since the dismissal was made by the defendant without legal basis, the conclusion of the court to reinstate her at work in her previous position according to the rules h. 1 Article. 394 of the Labor Code of the Russian Federation is correct.

In this case, the court lawfully in accordance with Part. 2 Article. 394 of the Labor Code of the Russian Federation obliged the defendant to pay the entire period of forced absenteeism from the day of dismissal to the day of reinstatement at work.

Cancellation of the court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate on the reinstatement of the employee at work

This norm is "reverse" to the provision of paragraph 2 of part 1 of Art. 83 of the Labor Code of the Russian Federation, which provides for the termination of an employment contract in connection with the reinstatement of an illegally dismissed or transferred employee. If, after the reinstatement of such an employee in the previous position or in the previous job, the relevant decision of the court or the state labor inspectorate is canceled, then the employee is dismissed due to circumstances beyond the control of the parties. For example, initially the employee was fired for absenteeism, but went to court, which found the employer's actions illegal and reinstated the employee at work. Then (for example, by way of supervision) the higher court overturned this decision. In this case, the employer has the right to dismiss this employee again, but not for absenteeism, but due to circumstances beyond the control of the parties.

Prior to the introduction of this provision into the Labor Code, special literature drew attention to the problems associated with the legal consequences of the cancellation by the supervisory court of the decision of the court of first instance to reinstate the employee at work, i.e. on the reversal of the execution of the decision of the court of first instance<12>.

<12>

So, L.A. Chikanova noted that since the court decision to reinstate the employee at work is executed immediately, the restoration of the original situation in the event of cancellation of this court decision is impossible, since it is impossible to exclude or delete the time during which the employee actually worked after his reinstatement. In this regard, in practice, the question arose: what should be done with an employee who has been unreasonably reinstated by decision of the court of first instance, given that a significant time has passed from the day of his dismissal to the cancellation of the court decision by the supervisory authority, sometimes several months? Often, during this time, the situation in the organization changes significantly, including the disappearance of the reasons that served as the basis for the dismissal of the employee.

Introduction to new edition of the Labor Code of the considered grounds for dismissal made it possible to remove a number difficult questions that have arisen in practice. For example, on the entry in the work book upon termination of the employment contract on this basis, on the date of dismissal, etc.

However, some problems associated with the application of this rule still remain. This refers to the question of the advisability of dismissing an employee if the situation in the organization has changed significantly and the need to terminate the employment contract with him has actually disappeared. L.A. Chikanova in the work mentioned above gives the following example from judicial practice.

Example. K. worked in JSC as a software engineer. In connection with the reduction of this position, he was offered other vacant positions (works) available in the organization, including fitter, electrician, quality control controller, wardrobe attendant. K. refused the offered positions, in connection with which he was warned about dismissal due to staff reduction (that is, on the basis of paragraph 2 of part 1 of article 81 of the Labor Code), and after the expiration of the warning period, he was dismissed.

During the term of the dismissal notice, another vacant position appeared in the OJSC - a senior storekeeper, which was not offered to K.. He went to court with a claim for reinstatement, believing that the employer was obliged to offer him all the vacancies available at the time of dismissal.

The district court (whose decision was upheld by the regional court) declared the dismissal unlawful and reinstated K. same place work. In its decision, the court indicated that the employer violated Part 2 of Art. 81 and part 1 of Art. 180 TK, not accepting all necessary measures for employment K., did not offer the vacant position of a senior storekeeper that was available at the time of dismissal, which, being a competent worker, K. could fill after appropriate training.

In the supervisory submission, the prosecutor indicated that in accordance with Part 1 of Art. 180 of the Labor Code, the employer is obliged to offer the employee subject to dismissal due to a reduction in the number or staff of employees only those vacant positions (jobs) that correspond to his qualifications, or vacant lower positions (lower paid jobs) that the employee can perform taking into account his education, qualifications , work experience and health status. The position of senior storekeeper did not correspond to the one that K. held before his dismissal, and his education, qualifications and work experience did not allow him to work in this position without appropriate training.

The Supervisory Court agreed with the prosecutor's arguments. By decision of the presidium of the regional court, the court decisions of the district and cassation courts on the reinstatement of K. at work were recognized as unlawful and canceled.

Almost 1.5 years have passed since the day K. was reinstated at work by the decision of the court of first instance and until the decision by the supervisory authority to cancel this decision took almost 1.5 years. By that moment, in connection with the changes in the organizational and technological working conditions made in the JSC, there was no real need to reduce the number of employees. On the contrary, another position was included in the staff list of the OJSC, similar to the one held by K.

When analyzing this case, L.A. Chikanova notes that, according to the letter of the law, the employer must comply with the court decision and terminate the employment contract with K. However, one can hardly agree with such an interpretation, since it contradicts the nature and essence of the employment relationship, which is based on an agreement between the employee and the employer. In this case, the decision to cancel the court decision to reinstate K. at work should be considered as providing the employer with the opportunity to restore the violated right or refuse to do so.<13>. Fully agreeing with the author, I would like to note that, despite the objective necessity of the considered grounds for dismissal, its inclusion in Art. 83 of the Labor Code seems unreasonable. As you know, Art. 83 of the Labor Code of the Russian Federation imperatively prescribes the termination of an employment contract between an employee and an employer. This is entirely justified if the circumstances preclude the continuation of the work. In this case, the employer should be given the right to decide on the termination of the employment contract. In this regard, it would be more appropriate to provide for a corresponding provision in Art. 81 of the Labor Code (dismissal at the initiative of the employer).

<13>Chikanova L.A. Legal consequences of the cancellation by the supervisory court of the decision of the district court on the reinstatement of an employee at work // Commentary on judicial practice. Issue 9 / Ed. K.B. Yaroshenko. Legal Literature, 2004.

Bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity on the territory of the Russian Federation

This is a new norm that was introduced into the Labor Code by the Federal Law of December 30, 2006 N 271-FZ "On retail markets and on amendments to the Labor Code of the Russian Federation" (as amended)<14>.

<14>SZ RF. 2007. N 1 (part 1). Art. 34.

According to Art. 15 of this Law, the provision of trading places to foreign citizens registered as individual entrepreneurs, as well as to persons attracting foreign workers as sellers, is carried out by the market management company, taking into account the permissible share of foreign workers used in the markets established by the Government of the Russian Federation. In this regard, the Government of the Russian Federation adopted Decree No. 1003 of December 29, 2007 "On the establishment for 2008 of the permissible share of foreign workers used by business entities operating in the field of retail and in the field of sports on the territory of the Russian Federation"<15>.

<15>SZ RF. 2008. N 3. Art. 189.

For 2008, such an allowable share is established (for certain types of retail trade):

a) retail sale of alcoholic beverages, including beer - in the amount of 0 percent of the total number of employees;

b) retail trade in pharmaceutical products - in the amount of 0 percent of the total number of employees;

c) retail trade in stalls and markets - in the amount of 0 percent of the total number of employees;

d) other retail trade outside stores - in the amount of 0 percent of the total number of employees.

The allowable share of foreign workers in the retail sector is set annually. At the same time, the reduction by the Government of the Russian Federation of the permissible share of foreign workers used in the markets is the basis for terminating the employment contract concluded with a foreign worker under clause 12, part 1, art. 83 of the Labor Code of the Russian Federation.

An employment contract on this basis shall be terminated no later than the expiration of the period established by the Government of the Russian Federation for bringing by employers engaged in certain types of economic activity in the territory of the Russian Federation, the total number of employees who are foreign citizens or stateless persons, in accordance with the permissible share of such employees.

However, for example, in the Resolution mentioned above, such a period is not specified. It contains only a general instruction to economic entities to bring the number of employed foreign workers in line with the allowable share of such workers.

Guarantees to the employee upon dismissal due to circumstances beyond the control of the parties

It should be noted that the current legislation provides for a number of guarantees for employees dismissed due to circumstances beyond the control of the parties.

First of all, in some cases the obligation of the employer to offer the employee another job(both a vacant position or job corresponding to his qualifications, and a vacant lower position or lower paid job), which he can perform, taking into account his state of health. Such an obligation is provided for upon termination of an employment contract for the following reasons:

• reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, part 1, article 83);
• disqualification or other administrative punishment, excluding the possibility of the employee fulfilling obligations under an employment contract (clause 8, part 1, article 83);
• expiration, suspension for a period of more than two months or deprivation of an employee of a special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails behind the impossibility of the employee to fulfill the obligations under the employment contract (clause 9, part 1, article 83);
• termination of access to state secrets, if the work performed requires such access (clause 10, part 1, article 83).

In these cases, it is possible to dismiss an employee only if he refuses the offered job or it is impossible to provide him with such a job.

However, it should be remembered that employees dismissed on this basis are not covered by the guarantees established for cases of dismissal at the initiative of the employer. In this sense, the following case from the practice of the Supreme Court of the Russian Federation is of interest.<16>.

<16>Review of the judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005 dated March 1, 2006 // Bulletin of the Supreme Court of the Russian Federation. 2006. No. 5.

E. was dismissed from the post of chief accountant of the district administration by order of the head of the district administration dated March 24, 2003 on the basis of Art. 83 of the Labor Code (in connection with the reinstatement by a court decision at work of an employee who previously performed this work).

Disagreeing with the dismissal, E. filed a lawsuit for reinstatement and recovery of wages, citing the fact that she was dismissed illegally during pregnancy.

By decision of the district court of May 21, 2003, wages were collected from the defendant in her favor for the time of forced absenteeism.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation satisfied the submission of the Deputy Prosecutor General of the Russian Federation, canceling the court rulings held in the case and sending the case for a new trial to the court of first instance, on the following grounds.

When satisfying E.'s claim for reinstatement, the courts proceeded from the fact that termination of an employment contract at the initiative of the employer with pregnant women is not allowed (part 1 of article 261 of the Labor Code of the Russian Federation).

However, since the dismissal did not take place at the initiative of the employer, the reference of the courts to Part 1 of Art. 261 of the Labor Code of the Russian Federation, which prohibits the termination of an employment contract with pregnant women precisely at the initiative of the employer, is unfounded.

Thus, on this basis, an employment contract with an employee may be terminated, including during a period of temporary incapacity for work, being on vacation, etc.

M.V. Presnyakov

departments of civil procedure,

labor and environmental law

Volga State Academy

services to them. P.A. Stolypin

The general grounds for termination of employment contracts are indicated in Art. 77 of the Labor Code of the Russian Federation. We have already touched on some of them above.

The general grounds are:

1. Agreement of the parties.

As follows from Art. 78 of the Labor Code of the Russian Federation, an employment contract can be terminated at any time by agreement of its parties. Important is not only the desire of the parties to terminate the relationship, but also the agreement on the time (period, date) of termination of the contract.

Article 79 of the Labor Code of the Russian Federation imposes the obligation of the employer to notify the employee of the termination of the fixed-term employment contract in writing at least three days before the dismissal, otherwise the fixed-term employment contract is transformed into an employment contract concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Also in Art. 79 of the Labor Code of the Russian Federation defines the moments of termination of individual fixed-term employment contracts. So, when concluding an employment contract for the time of performing a certain work, for the time of fulfilling the duties of an absent employee, for the time of performing seasonal work, such contracts are terminated accordingly: at the end of the work stipulated by the contract, with the exit of the replaced employee to work, at the end of the season.

In all cases, the employer must warn the employee and issue an appropriate written order, which brings the employee to the signature.

3. Termination of the employment contract on the initiative of the employee.

The contract is terminated at the employee's own request (Article 80 of the Labor Code of the Russian Federation). In this case, the employee must notify the employer in writing of his desire to terminate the employment relationship at least two weeks in advance. A different period may be fixed by agreement of the parties or specified in the law (for example, the manager must notify the employer at least a month in advance - Article 280 of the Labor Code of the Russian Federation). And if an employment contract is concluded with an employee for a period of up to two months or with a seasonal worker, then the employer is notified of the early termination of the employment contract for three calendar days(Art. 292, 296 of the Labor Code of the Russian Federation).

If, after filing an application for dismissal, the employee has changed his mind, then he has the right to withdraw his application at any time before the expiration of the notice of dismissal. This is always possible, except for the situation when another employee is invited in writing to replace the resigning employee, who, in accordance with Art. 64 of the Labor Code of the Russian Federation or other federal laws, the conclusion of an employment contract cannot be refused.

4. Termination of the employment contract at the initiative of the employer.

This paragraph does not apply on its own and refers to Art. 81, which indicates the grounds for termination of the contract at the initiative of the employer. These grounds will be discussed further.

In accordance with Art. 61 of the Civil Code of the Russian Federation, the liquidation of an organization entails its termination without the transfer of rights and obligations by way of succession to other persons.

In the event of the 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 these structural units is carried out according to the rules provided for in cases of liquidation of the organization (part 4 of article 81 of the Labor Code of the Russian Federation). Employees must be warned about the upcoming dismissal against signature at least two months in advance (Article 180 of the Labor Code of the Russian Federation).

A dismissed employee is paid a severance pay at the expense of the employer in the amount of the average monthly earnings. In addition, he retains the average monthly salary for the period of employment, but not more than two months from the date of dismissal (including severance pay).

In exceptional cases, the average monthly salary is retained by the dismissed employee for the third month from the date of dismissal by decision of the public employment service agency, provided that the employee applied to this agency within two weeks after the dismissal and was not employed by him (part 2 of article 178 of the Labor Code RF). And upon dismissal from organizations located in the regions of the Far North, salary retention is possible for the fourth, fifth and sixth months (Article 318 of the Labor Code of the Russian Federation).

With the written consent of the employee, the employer has the right to terminate the employment contract with him without a two-month notice of dismissal with the simultaneous payment of additional compensation in proportion to the reduction of the warning period (parts 2 and 3 of article 180 of the Labor Code of the Russian Federation).

On liquidation and downsizing temporary workers(having a contract term of up to two months) are warned three days in advance, and severance pay may be provided for by the contract (Article 292 of the Labor Code of the Russian Federation), and seasonal workers are warned seven days in advance, and severance pay of at least two weeks of earnings (Article 296 of the Labor Code of the Russian Federation) .

When employees are dismissed due to the termination of activities by an employer - an individual, the terms of the notice of dismissal, as well as the cases and amounts of severance pay and other compensation payments paid are determined by the employment contract (Article 307 of the Labor Code of the Russian Federation). If the contract does not specify these warranties, the provisions of the law shall apply.

2. Reducing the number or staff of the organization's employees.

When carrying out these activities, the employer is obliged to offer the employee another available job (vacant positions). All positions (works) that an employee can occupy (perform) should be offered, taking into account his skills and state of health.

If the downsizing results in the dismissal of employees, then employees with higher labor productivity and (or) qualifications have an advantage.

With equal labor productivity and qualifications, preference in remaining at work is given to:

• family - if there are two or more dependents (disabled family members who are on full content the employee or those receiving assistance from him, which is for them a permanent and main source of livelihood);
• persons in whose family there are no other self-employed workers;
• employees who have received a labor injury or occupational disease in this organization;
• disabled people of the Great Patriotic War and invalids of military operations for the defense of the Fatherland;
• employees who improve their skills in the direction of the employer on the job (part 2 of article 179 of the Labor Code of the Russian Federation);
• other persons specified in the collective agreement of the organization.

In accordance with Part 1 of Art. 82 of the Labor Code of the Russian Federation on the decision to reduce the number or staff of employees of the organization and the possible termination of employment contracts with employees on this basis, the employer must also inform the elected trade union body of this organization in writing, and if the decision to reduce the number or staff of employees of the organization may lead to mass dismissal of employees - no later than three months before the start of the relevant activities.

When dismissing workers who are members of a trade union, it is required to coordinate the decision with the trade union.

3. Inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification.

On this basis, the employee may be dismissed if it is impossible to transfer him to another job with his consent. In order to protect the rights of workers, a member of the commission from the relevant elected trade union body (part 3 of article 82 of the Labor Code of the Russian Federation) must be included in the attestation commission.

4. Change of the owner of the property of the organization.

Upon termination of the employment contract with the head of the organization, his deputies and the chief accountant in connection with a change in the owner of the organization, the new owner is obliged to pay compensation to the specified employees in the amount of at least three average monthly earnings of the employee (Article 181 of the Labor Code of the Russian Federation). They also cannot be withheld sums of money for unworked days of vacation used in advance, etc. (Article 137 of the Labor Code of the Russian Federation).

Paragraphs 5 to 10 of Art. 81 of the Labor Code of the Russian Federation are disciplinary dismissals (penalties - Article 192 of the Labor Code of the Russian Federation), therefore, the procedure for their application must strictly comply with the procedure for applying disciplinary sanctions (Article 193 of the Labor Code of the Russian Federation).

5. Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction.

Termination of the employment contract on this basis is possible if the employee has already committed a disciplinary offense, for which a disciplinary sanction was applied to him in the prescribed manner and this employee again commits a disciplinary offense, and the previous penalty has not yet been removed by this moment. A disciplinary sanction is removed automatically one year after application, unless removed earlier by order of the employer.

The general rules for applying penalties are as follows:

• an explanation is necessarily taken or an act is drawn up;
• an order for each case of violation is issued no later than one month from the date of discovery of the misconduct, not counting the time of illness of the employee, his stay on vacation, as well as the time necessary to determine the opinion of the representative body of employees, but in any case not later than six months from the date of the misconduct , and based on the results of an audit, audit of financial and economic activities or an audit - no later than two years from the date of the offense.

6. A single gross violation of labor duties by an employee.

Single gross violations of labor duties are understood as:

a) absenteeism, i.e. absence from work during the entire shift or absence from the workplace without good reason for more than four hours in a row during the working day;

b) appearing at work in a state of alcoholic, narcotic or other toxic intoxication.

Dismissal is possible only when the employee in work time was in a state of intoxication on the territory of an organization or facility where, on behalf of the management, he had to perform labor functions.

The presence of an employee of alcohol, narcotic or other toxic intoxication and the fact of his appearance in such a state at work must be proved by the employer. Evidence will be a medical report or other evidence (such as a witness statement);

c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, as well as disclosure of personal data of another employee;

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

e) violation by the employee of labor protection requirements, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created real threat occurrence of such consequences.

7. Commitment 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

Employees to whom this basis can be applied are persons serving monetary and commodity values. On this basis, watchmen, cleaners, etc., who do not serve (storage, processing, manufacturing) monetary and commodity values ​​\u200b\u200bcannot be dismissed, although they can use them in the process of work.

The application of this basis does not depend on other types of liability and on the existence of an agreement on full liability. In this situation, the guilt of the employee is established by the employer himself on the basis of the evidence he has.

8. Commitment by an employee performing educational functions of an immoral offense incompatible with the continuation of this work.

There is no definition of immoral offense in the legislation. It seems that it should be understood as offenses that violate accepted legal norms, are directly related to morality, committed by an employee both at work and at home and do not correspond to the moral qualities required for positions held or for the work performed by him related to the upbringing of minors.

On this basis, only employees performing educational functions, i.e. teachers, social pedagogues, educators, etc., can be dismissed. Persons performing only technical duties cannot be dismissed on this basis.

9. Making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its misuse or other damage to the property of the organization.

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

The manager can also be dismissed for general one-time gross violations (and 6, article 81 of the Labor Code of the Russian Federation), as well as for other gross violations, which must be specified either in an individual agreement with the employee, or in local regulations, with which the manager is familiarized under painting.

11. Submission by the employee to the employer of false documents when concluding an employment contract.

In accordance with the Labor Code, an employee presents a whole package of various documents (Article 65 of the Labor Code of the Russian Federation), which can be legally expanded to individual cases taking into account the specifics of the work.

Forgery of documents can be in form (when the entire document is fake) and in content (when the actual document contains false entries).

12. This paragraph - the termination of access to state secrets - was transferred by the legislator to Art. 83 TK.

13. Cases stipulated by the employment contract with the head of the organization, members of the collegial executive body of the organization.

Termination of the contract due to circumstances beyond the control of the parties

In accordance with Art. 83 of the Labor Code of the Russian Federation, an employment contract is subject to termination due to the following circumstances that do not depend on the will of the parties:

1. Calling up an employee for military service or sending him to an alternative civilian service that replaces it.

Upon termination of employment relations on the specified basis, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation).

The termination of the employment contract on this basis is carried out on the basis of the employee's application upon presentation by the employee of the military registration and enlistment office summons to appear at the recruiting station for service. Only in this case, the Federal Law "On the Status of Servicemen" guarantees the right of a serviceman who worked at a state (municipal) enterprise before being drafted to return to his previous job within six months from the date of demobilization.

2. Reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court.

Termination of the employment contract on this basis is possible only if it is impossible to transfer the employee with his consent to another job. Moreover, in this case, the employee is paid a severance pay in the amount of two weeks of average earnings (Article 178 of the Labor Code of the Russian Federation);

3. Not being elected to office.

Logically, this paragraph applies if the employee holding a certain position is not re-elected for a new term. Since in the competitive replacement of a position, in addition to such an employee, persons filling other positions can participate, and if they are not elected, they remain in their positions and they do not need to be fired. Also, an applicant from the street, that is, not an employee of the organization, can participate in the competitive selection, and if he is not elected, he also does not need to be fired, since he did not become an employee.

4. Condemnation of an employee to a punishment that precludes the continuation of the previous work in accordance with a court verdict that has entered into force.

In accordance with Art. 392 of the Code of Criminal Procedure of the Russian Federation, a court verdict that has entered into legal force is mandatory for all state authorities, bodies local government, public associations, officials, other individuals or legal entities and is subject to strict execution throughout the territory of the Russian Federation.

If the punishment chosen in the sentence prevents the employee from continuing his labor activity (for example, deprivation of liberty, deprivation of the right to hold a certain position or engage in certain activities), then in this case, the employment contract is subject to termination by issuing an appropriate order by the employer.

According to part 3 of Art. 77 of the Labor Code of the Russian Federation, the day of dismissal of an employee is the last day of his work. If the employee was under arrest before the trial, then the day of his dismissal will be considered the last day of his work. This is one of the few cases of dismissal of an employee since the last number.

5. Recognition of an employee as completely disabled in accordance with a medical report.

In this case, the employer is obliged to terminate the employment relationship with the employee. The basis for issuing the relevant order can only be a medical opinion of authorized experts of the MSEC (medical and social expert commission).

6. Death of an employee or employer - an individual, as well as recognition by the court of an employee or employer - an individual as dead or missing.

If the first half of this ground is clear enough, then the issue of recognizing a person as missing or dead is extended in time and also leads to dismissal in the past after recognizing the person as such in court.

7. The onset of emergency circumstances preventing the continuation of labor relations (military operations, catastrophe, other disaster, major accident, epidemic and other emergency circumstances), if this circumstance is recognized by a decision of the Government of the Russian Federation or a public authority of the corresponding subject of the Russian Federation.

There must be not only an event, but also a decision to recognize it as an emergency by the relevant authority.

8. Disqualification or other administrative punishment, excluding the possibility of the employee fulfilling the obligations under an employment contract.

9. Expiration, suspension for more than two months or deprivation of an employee of a special right (a license, the right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of the employee to fulfill the obligations under the employment contract.

10. Termination of access to state secrets, if the work performed requires such access.

In Art. 23 of the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On State Secrets” defines the conditions for terminating the admission of an official or citizen to state secrets.

If, for one of the reasons given in it, the employee’s access to state secrets is terminated and, as a result, he will lose the opportunity to continue to carry out his labor functions, then the employment contract may be terminated by the employer under paragraph 12 of Art. 81 of the Labor Code of the Russian Federation.

Dismissal under paragraphs 8-10 is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as a vacant position or job corresponding to the employee’s qualifications, as well as a vacant lower position or lower paid job), which the employee can perform according to his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

11. Cancellation of the court decision or cancellation (recognition as illegal) of the decision of the state labor inspectorate to reinstate the employee at work.

12. Bringing the total number of employees who are foreign citizens or stateless persons into line with the allowable share of such employees established by the Government of the Russian Federation for employers engaged in certain types of economic activity in the territory of the Russian Federation.

13. Occurrence of occupational restrictions established by the Labor Code, other federal law and excluding the possibility for the employee to perform duties under an employment contract certain types labor activity.

Such dismissal is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

Additional grounds for termination of the contract with certain categories of employees.

The current labor legislation provides for a significant list of grounds for terminating an employment contract. They are contained directly in the Labor Code of the Russian Federation, as well as in other federal laws.

In Art. 278 of the Labor Code of the Russian Federation provides additional grounds for terminating an employment contract with the head of an organization. In Art. 288 of the Labor Code of the Russian Federation contains an additional basis for the termination of an employment contract with persons working part-time. In Art. 336 of the Labor Code of the Russian Federation specifies additional grounds for terminating an employment contract with a teacher. In Art. 241 of the Labor Code of the Russian Federation, additional grounds for the dismissal of employees in a representative office of the Russian Federation abroad are indicated. In Art. 248.11 provides additional grounds for the dismissal of athletes.

Their special grounds are provided for the dismissal of state civil servants, law enforcement officers, for the resignation of judges, etc.

Termination of an employment contract means the dismissal of an employee from his position. It is during dismissal that violations of the law often occur. And the employee is forced to use one or more methods.

We propose to consider how and under what circumstances the termination of the employment contract is carried out. What you need to know when dismissing, and how to do it right.

Grounds for termination of an employment contract

The labor legislation provides for the following grounds for termination of employment:

• employee initiative
• employer-employee agreement
• employer's initiative
• expiration of the employment contract
• with the consent of the employee
• refusal of an employee to continue working due to changes in working conditions
• refusal to transfer to another job due to the state of health of the employee
• violation of the law when concluding an employment contract
• circumstances beyond the control of the parties
• refusal to move to another area with the employer
• refusal to continue work due to a change in the owner of the organization, a change in jurisdiction, type of institution, etc.

The employer is responsible for entering reliable information about the grounds for termination (termination). In case of violation, you can contact with.

The procedure for terminating an employment contract

When terminating an employment contract, the employer issues an order (order) on the dismissal of a particular employee. The order indicates its number and date of publication, the full surname, name and patronymic of the employee, the full name of the position he holds, the grounds for dismissal with reference to a specific norm of the Labor Code of the Russian Federation.

The order indicates the date of dismissal of the employee. The date of issue of the order and the date of dismissal of the employee may not coincide. That is, an order can be issued to dismiss an employee today, but tomorrow's date. On the date of dismissal, the employee must work full time.

The order is made in writing, signed by the head. It is handed over to the employee for review against signature. In those situations where the employee refuses to familiarize himself, an appropriate one is drawn up.

On the last working day, the employer makes a full settlement with the employee and issues him a work book with a record of dismissal. If on the day of his dismissal the employee did not appear for his documents, he is sent a message about the need to receive them. An employee who has not received documents in a timely manner can apply with. In this case, the employer must issue the documents within three days.

The employer sends a written letter to an employee working under a fixed-term employment contract three days before dismissal.

The Labor Code provides for a number of grounds for terminating an employment contract, which are referred to in article 77. According to it, the employer and employee can terminate their employment relationship at the initiative of either party. In this article, we will look at exactly how the termination of an employment contract can occur.

General order

According to the Labor Code, when terminating an employment contract, an order or instruction from the employer must be issued, with which the employee must be familiarized by signature. If the employee refuses to sign the document, a corresponding entry is made on the order. A copy of the order or order, at the request of the employee, can be issued to him in his hands.

In any case, the day of termination of the employment contract is the last working day of the employee (with the exception of cases when the employee did not actually work, but his job was retained).

The employer is obliged to make an entry in the work book in full accordance with the Labor Code. This means that the wording must necessarily indicate the article, paragraph or part of the article.

On the last working day - the day of dismissal - the employer is obliged to give the employee a work book and full payment. If the employee did not appear for the documents, a notification should be sent to him about the need to receive a work book. If an employee who has not received a book on time requests that it be given to him, the employer is obliged to do this within three days from the date of the request (meaning three working days).

Agreement of the parties (Article 78 of the Labor Code of the Russian Federation)

If the employer and employee decide to terminate their employment relationship by agreement of the parties, then the employee must submit an application with a request to dismiss him in accordance with paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. Such dismissal is significantly different from dismissal of one's own free will. For example, if an employee, after being fired, registers as unemployed, the allowance will be determined for him not on the basis of the minimum wage, as for the one who was dismissed of his own free will, but on the basis of the official salary at the last place of work.

The agreement on termination of the employment contract is concluded in writing and, in fact, is an additional agreement that is attached to the employment contract. It is concluded between the employee and the employer in the absence of mutual claims. On behalf of the employer, the agreement can be signed by a human resources inspector or other authorized person. Such an agreement, as a rule, satisfies the interests of the employee. For example, he may receive compensation for termination of the employment contract, or the administration of the enterprise will refuse to withhold the cost of training the employee (if training took place).

Termination of a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation)

If an employee works under a fixed-term employment contract, then three days before the deadline for its expiration - the actual dismissal - the employer must notify the employee in writing. This means that the employee must be given or mailed a notice of termination of the employment contract. A fixed term contract can be:

• to perform the duties of a temporarily absent employee (such an agreement must be terminated simultaneously with the release of this employee to his place of work);
• for the duration of a certain work (such an agreement is terminated upon completion of the work specified in it);
• contract for the performance of seasonal work (such an contract is terminated at the end of the season).

But there is one subtlety in the issue of terminating a fixed-term contract: if a pregnant woman works under it, then the term of such an agreement is extended until she has the right to maternity leave.

If an employee working under a fixed-term contract wants to quit of his own free will, then he must submit an application addressed to the manager (that is, notify him) three days before the date of dismissal.

Termination of the employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation)

Dismissal at the initiative of an employee is nothing more than a dismissal of one's own free will. The employee has the right to apply for resignation of his own free will at any time, at least two weeks before the date of dismissal, and the head of the organization - one month before. The reason for such dismissal may be any personal circumstances. But if the employee quits due to:

• with admission to an educational institution;
• retirement;
• moving to another area;
• due to violations of labor laws by the employer;
• he has the right to be fired without work.

During the working time, the employee has the right to change his mind and withdraw his application. In this case, he will continue to work in his place, unless, of course, a new employee has already been hired for him, who cannot be refused employment for some reason.

If the employee nevertheless quits, then on the last working day the employer is obliged to pay the employee in full, paying him the due wages, compensation, vacation pay, and also issue all required documents and workbook.

An employee who has not withdrawn his application, but does not insist on dismissal, and the employer did not calculate it on time and did not issue documents, is considered to continue working, and his application for dismissal is recognized as invalid.

Termination of an employment contract at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation)

The employer, like the employee, has the right to terminate the employment contract on his own initiative. Grounds for termination may be general or additional. The general ones are applicable to all employment contracts, and the additional ones are applicable to employment contracts of certain categories of employees. Termination of an employment contract on general grounds can occur in several cases:

• upon liquidation of the enterprise;
• when reducing the staff or number of employees;
• due to the inconsistency of the employee with the position held (due to low qualification, which is confirmed by attestation documents, for health reasons - confirmed by a medical report);
• due to a gross single violation of labor duties by an employee (absenteeism, going to work in a state of alcohol, drug or toxic poisoning, disclosure of state or commercial secrets);
• due to repeated non-fulfillment of labor duties (if the employee already has disciplinary sanctions);
• committing theft, embezzlement, deliberate destruction and damage to property;
• violations of labor protection requirements that caused an accident, accident, catastrophe or created a real threat to them;
• for committing immoral acts (for teachers);
• in case of loss of confidence (for financial workers);
• for making unreasonable decisions that led to the misuse of property (for managers, deputy heads, chief accountants);
• for providing false documents when concluding an employment contract.

It is worth noting that in order to terminate an employment contract with an employee on one of these grounds, the employer must have supporting documents. This means that the appearance at work in a state of intoxication must be recorded by an act confirming the presence of the employee at the workplace, and a medical report.

An employer cannot dismiss an employee who is on sick leave or vacation (an exception is the liquidation of an enterprise).

If the employer is individual entrepreneur, then upon termination of his activity, he may terminate the employment contracts with his employees. In this case, the basis for terminating the employment contract will be an extract from the USRIP.

Additional grounds for terminating an employment contract

Termination of the employment contract by the employer is also possible on additional grounds, which are stipulated in other regulations. For example, teachers can be fired for using inappropriate parenting methods (this includes physical or psychological abuse) or violating the Charter. educational institution(FZ "On Education"), and civil servants - for the disclosure of information constituting a state secret or occupation entrepreneurial activity(FZ "On public service").

With whom it is impossible to terminate the employment contract at the initiative of the employer?

• pregnant women;
• women who have children under three years of age;
• single mothers who have children under the age of 14 or have a disabled child under 18;
• other persons who are raising children without a mother.

Dismissal in the order of transfer

Such a dismissal can only be made if there is a corresponding application from the employee and confirmation from another employer of consent to hire him (this may be a letter of guarantee or a signed application for employment). If we are talking about election to any elective position, then the employee must provide a document confirming the election.

Dismissal of an employee due to refusal to continue work (Article 75 of the Labor Code of the Russian Federation)

Such a dismissal is possible if there has been a change in the ownership of the organization's property, a reorganization or a change in the jurisdiction of the institution. In this case, the employee simply submits a letter of resignation. This rule does not apply to the chief accountant, head and his deputy. An employment contract with them can be terminated at the initiative of the new owner of the organization's property within three months after the property rights arise for him.

Dismissal of an employee due to a change in essential working conditions

In practice, situations often arise when, when organizational or technological working conditions change, the terms of the employment contract also change, but without a fundamental change in the labor function. The employee must be notified of such changes in writing two months prior to their introduction. If the employee is not satisfied with the new conditions, the employer is obliged to offer him another job (the offer is also made in writing), which corresponds to his qualifications and state of health. If there is no such work, and the employee does not agree to work in the changed conditions, the employment contract is terminated (Article 73 of the Labor Code of the Russian Federation).

Sometimes changes in working conditions can lead to mass layoffs. In these cases, part-time work is possible, which can be introduced in agreement with the trade union for up to six months. If the employee refuses to work in the new conditions, then the termination of the contract occurs in accordance with Article 81 of the Labor Code of the Russian Federation.

Dismissal for health reasons

The employee has the right to apply for other work in accordance with his state of health, which must be confirmed by medical documents. But if the organization does not have a suitable job or the employee refuses to transfer, then the termination of the employment contract occurs in accordance with article 77, clause 8 of the Labor Code of the Russian Federation. The documents must include a medical report, an employee's statement about his transfer to another job and documents confirming the absence of a suitable job (or the employee's refusal to transfer to a specific job).

Termination of the employment contract in connection with the relocation of the employer to another locality

It happens that the owner of the enterprise transfers production to another area. In this case, the employer is obliged to notify the employees in writing about the transfer of production, and upon receipt of a refusal to transfer together with the organization, terminate the employment contract with those who refused.

Termination of an employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation)

The grounds for terminating an employment contract with the wording “due to circumstances beyond the control of the parties” can be very different, for example:

• conscription;
• reinstatement of the former employee (by court order or decision of the labor inspectorate);
• the inability to transfer to another job at the request of the employee;
• non-election to office;
• recognition of an employee as disabled according to medical documents;
• condemnation of the employee to punishment (by court decision), disqualification, administrative punishment, excluding the possibility of the employee performing his duties;
• the death of an employee or his unknown absence;
• emergency circumstances (natural disasters, catastrophes, wars, epidemics, accidents), which are recognized by the decision of the Government of the Russian Federation.

The procedure for terminating an employment contract in this case requires the provision of documentary evidence of the occurrence of circumstances, and then, on the basis of the documents submitted (summon from the military registration and enlistment office, death certificate, court decision, medical report, etc.), an order is issued to terminate the employment contract.

But in some cases, the employer may offer the employee a transfer to another position. For example, when a former employee is reinstated by a court decision, the employer has the right to offer the employee who worked in his place another job.

Termination of an employment contract due to violations during its conclusion (Article 84 of the Labor Code of the Russian Federation)

Sometimes labor inspectorate violations that were committed at the conclusion of the employment contract are revealed. Such contracts must be terminated by law. The reasons can be very different, for example:

• the contract was concluded with an employee who, by a court decision, is prohibited from holding this position or performing specific work (in this case, the employee must first be offered another job in writing, and if he refuses, terminate the employment contract with him);
• the contract was concluded for the performance of work that is contraindicated for the employee for health reasons (there must be a medical certificate);
• the contract was concluded with an employee without specialized education (if, in accordance with regulatory enactments, the position or type of work performed by the employee requires special education of a certain level).

In any of these cases, the employer who allowed the conclusion of an unauthorized contract is obliged to pay the employee a severance pay in the amount of average earnings. The exception is the situation when the employee misled the employer. In this case, the contract with the employee is terminated at the initiative of the employer (provision of false documents).

Features of termination of an employment contract with foreign citizens

If the employer cooperated with a foreign citizen, then within three working days after the termination of the employment contract with him, he must report this to the territorial body of the FMS, the employment center and the territorial tax authority.

PART THREE

• Section III. EMPLOYMENT CONTRACT
  • Chapter 10. GENERAL PROVISIONS
  • Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT
  • Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT
  • Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT
  • Chapter 14. PROTECTION OF THE PERSONAL DATA OF THE EMPLOYEE
• Section IV. WORK TIME
  • Chapter 15. GENERAL PROVISIONS
  • Chapter 16. WORKING HOURS
• Section V. REST
  • Chapter 17. GENERAL PROVISIONS
  • Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS
  • Chapter 19
• Section VI. PAYMENT AND REGULATION OF LABOR
  • Chapter 20. GENERAL PROVISIONS
  • Chapter 21. WAGES
  • Chapter 22
• Section VII. WARRANTY AND REFUND
  • Chapter 23. GENERAL PROVISIONS
  • Chapter 24
  • Chapter 25
  • Chapter 27
  • Chapter 28. OTHER GUARANTEES AND COMPENSATIONS
• Section VIII. WORK REGULATION. WORK DISCIPLINE
  • Chapter 29. GENERAL PROVISIONS
  • Chapter 30. DISCIPLINE OF LABOR
• SECTION IX. EMPLOYEE QUALIFICATION, PROFESSIONAL STANDARD, TRAINING AND ADDITIONAL PROFESSIONAL EDUCATION OF EMPLOYEES (as amended by Federal Law No. 122-FZ of May 2, 2015)
  • Chapter 31. GENERAL PROVISIONS
  • Chapter 32
• Section X. LABOR SAFETY
  • Chapter 33. GENERAL PROVISIONS
  • Chapter 34. LABOR PROTECTION REQUIREMENTS
  • Chapter 35. ORGANIZATION OF LABOR PROTECTION
  • Chapter 36
• Section XI. MATERIAL RESPONSIBILITY OF THE PARTIES TO THE EMPLOYMENT CONTRACT
  • Chapter 37. GENERAL PROVISIONS
  • Chapter 38
  • Chapter 39

PART FOUR

• Section XII. FEATURES OF LABOR REGULATION FOR CERTAIN CATEGORIES OF EMPLOYEES
  • Chapter 40. GENERAL PROVISIONS
  • Chapter 41
  • Chapter 42
  • Chapter 43
  • Chapter 44
  • Chapter 45
  • Chapter 46
  • Chapter 47
  • Chapter 48
  • Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES THAT ARE RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
  • Chapter 49
  • Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
  • Chapter 50
  • Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
  • Chapter 51
  • Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
  • Chapter 52
  • CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
  • Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (STAFF) (introduced by the Federal Law of 05.05.2014 N 116-FZ)
  • Chapter 54
  • Chapter 54.1. PECULIARITIES OF REGULATION OF THE WORK OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
  • Chapter 55

PART FIVE

• Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
  • Chapter 56. GENERAL PROVISIONS
  • Chapter 57
  • Chapter 58
  • Chapter 59
  • Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
  • Chapter 61. REVIEW AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
  • Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW

PART SIX

• Section XIV. FINAL PROVISIONS

Article 83 of the Labor Code of the Russian Federation. Termination of an employment contract due to circumstances beyond the control of the parties

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An employment contract is subject to termination due to the following circumstances beyond the control of the parties:

1) conscription of an employee for military service or sending him to an alternative civilian service that replaces it;

2) reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court;