This is a gross violation of labor discipline. What is a one-time gross violation of labor duties? Truancy as a separate type of violation

For a gross one-time violation labor responsibilities An employee can be dismissed on the basis of clause 6, part 1, art. 81 Labor Code RF. Moreover, it is possible to dismiss on this basis, including: women with children under three years of age; single mothers raising a child under 14 years of age (disabled child under 18 years of age); workers raising a child under 14 years of age (a disabled child under 18 years of age) without a mother. You can't just fire a pregnant woman. This is stated in Art. 261 of the Labor Code of the Russian Federation.

Under one-time gross violation of labor duties means:

1. absenteeism, that is, absence from work without good reasons throughout the entire working day (shift), regardless of its duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift);
2. the employee’s appearance at work (at his workplace or on the territory of the employing organization or facility where, on behalf of the employer, the employee must perform labor function), in a state of alcoholic, narcotic or other toxic intoxication;
3. disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including disclosure of personal data of another employee;
4. committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of a judge, body, official authorized to consider cases of administrative offenses;
5. violation by an employee of labor protection requirements established by the labor safety commission or the labor safety commissioner, if this violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences.

In fact, the grounds for dismissal provided for in clauses 5 and 6 of Part 1 of Art. 81 of the Labor Code of the Russian Federation, are somewhat similar. After all, in both cases there is some kind of violation of labor duties committed by employees, for which the employer subsequently applies disciplinary action. The difference is that, according to clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, an employee commits at least two violations of labor discipline (that is, repeatedly), each of which is not recognized as a gross violation of labor duties. Moreover, for the first violation the employee has already been reprimanded or reprimanded. And for a second repeated violation, a disciplinary sanction in the form of dismissal is imposed.

In a situation where termination employment contract occurs on the basis of clause 6, part 1, art. 81 of the Labor Code of the Russian Federation, the employee commits only one violation of labor duties, but it is recognized as gross. A closed list of such violations is given above. For such a violation, the employer has the right to immediately (without waiting for the violation to be committed again) to apply a disciplinary sanction in the form of dismissal.

Let's consider the dismissal procedure and the features that should be taken into account for each reason separately:

Dismissal for absenteeism

Absenteeism is a gross violation of labor discipline. At the same time, labor legislation understands absenteeism as the absence of an employee from the workplace without good reason:

• or during the entire working day (shift) regardless of its duration;
• or more than four hours in a row during a working day (shift).

Based on clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2, absenteeism, which may result in the imposition of disciplinary action in the form of dismissal, is equivalent to:

• abandonment of work without a good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of termination of the employment contract, as well as before the expiration of the two-week warning period;
• unauthorized use of days off, as well as unauthorized departure on vacation (main, additional).

But if the employer was obliged by virtue of the requirements labor legislation provide days of rest, but did not do so, the employee’s absence from work cannot be considered absenteeism.

Note! An employee can also be fired if he was absent from work for four hours, if these four hours included lunch time (usually one hour). This conclusion was made by the Presidium of the Moscow City Court in the Resolution of August 16, 2007 in case No. 44g-570. It notes that a lunch break cannot interrupt the period of continuous absence from the workplace. After all, labor legislation does not define a working day as work time throughout the day before lunch and after lunch.

When terminating an employment contract on this basis, documentary evidence of absenteeism by the employee is required. Otherwise, if the fact of absenteeism is not confirmed, the dismissal will be considered illegal with all the ensuing consequences.

To document the fact of absenteeism, it is necessary:

• time sheet with the corresponding mark made. Time sheet in commercial organizations are conducted according to the unified form N T-12 or N T-13 (approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 N 1). When the reason for an employee’s absence from the workplace is unknown, the letter code “NN” is entered on the timesheet. After the fact of absenteeism is established (that is, the employee does not present any documents confirming valid reasons for his absence, for example, sick leave), the letter code “PR” is entered - absenteeism (absence from the workplace without good reason);
• certificate of absence of an employee from the workplace. It should indicate the time the report was drawn up, the details of the person who recorded the employee’s absence from the workplace (usually the employee’s immediate supervisor), and the time the employee was absent from work. Instead of an act, the employee’s immediate supervisor can also draw up a memo addressed to the head of the organization;
• notification letter. It is sent to the employee’s home address in case of prolonged absence from work. The notice asks him to report to work and explain the reasons for his absence. The letter must be registered with return receipt requested. It is better to arrange it on letterhead for letters from the organization. The letter indicates the period within which the employee should respond (usually a maximum of two weeks). After the email notification is returned, you need to wait for a response. If there is no answer, then a statement of lack of explanation is drawn up signed by at least two witnesses.

In addition, since dismissal in this case is used as a disciplinary measure, it is necessary to comply with the procedure provided for in Art. 193 of the Labor Code of the Russian Federation. Namely, before applying a disciplinary sanction, the employer must request a written explanation from the employee. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

At the same time, the employee’s failure to provide an explanation is not an obstacle to applying disciplinary action.

In the explanatory note, the employee must state the reasons for absence from work. The employer analyzes these reasons and determines whether they are valid or disrespectful.

If the reasons are not valid, then it is necessary to draw up an order to impose a penalty in the form of dismissal for absenteeism. Unified form There is no such order, so it is drawn up in any form.

The order to impose a penalty in the form of dismissal of the employee must be familiarized with signature within three working days from the date of its publication, not counting the time the employee is absent from work. If the employee refuses to familiarize himself with by the indicated order against signature, then a corresponding act is drawn up (Article 193 of the Labor Code of the Russian Federation).

Dismissal for showing up to work while drunk

Appearing at work in a state of intoxication is also considered a gross violation of labor discipline:

• alcoholic;
• narcotic;
• other toxic.

It does not matter whether the employee appeared drunk at his workplace or on the territory of the employing organization or facility where, on behalf of the employer, the employee must perform a job function.

In addition, as stated in paragraph 42 of the Resolution of the Supreme Court of the Russian Federation of March 17, 2004 No. 2, it does not matter whether the employee was suspended from work due to such a condition.

The state of alcohol, drug or other toxic intoxication must be documented. This is usually a medical report.

Dismissal for this violation of labor discipline is a disciplinary measure. This means that in order to apply a penalty on the basis of Art. 193 of the Labor Code of the Russian Federation, the employee should be required to provide a written explanation. If after two working days the employee does not provide the specified explanation, then a corresponding act is drawn up.

Then an order is drawn up (in any form) to impose a penalty in the form of dismissal for appearing at work while intoxicated. The employee is familiarized with the order against signature within three working days from the date of its publication. If the employee refuses to familiarize himself with the specified order against signature, then a corresponding act is drawn up.

Dismissal for disclosing secrets

Disclosure of a secret protected by law is another gross violation of labor duties. At the same time, secrets protected by law include:

• trade secret. A trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits. Information constituting a trade secret (production secret) is information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about methods of implementation professional activity. It is important that this information has actual or potential commercial value due to its unknown nature to third parties, to which third parties do not have free access. legally and in respect of which the owner of such information has introduced a trade secret regime. Such definitions are given in Art. 3 of the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets”;
• state secret. That is, information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational intelligence activities, the dissemination of which could harm the security of Russia. This is stated in Art. 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets”;
• other secrets protected by law (for example, official, banking, tax, etc.).

When dismissing an employee for disclosing a secret, it is first of all important that there is evidence that the employee has access to information that constitutes a secret protected by law. Such permission must be issued in the form of a written document that reflects information for the disclosure of which the employee may be liable. disciplinary liability in the form of dismissal.

In addition, paragraph 43 of the Resolution of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 states that when terminating an employment contract on this basis, the employer must also provide evidence that:

• the disclosed information actually constitutes a secret protected by law;
• the disclosed information became known to the employee in connection with the performance of his job duties, and he undertook not to disclose it.

A disciplinary sanction in the form of dismissal for this violation is imposed in general procedure, described in Art. 193 of the Labor Code of the Russian Federation. It is formalized by an order to apply a disciplinary sanction in the form of dismissal, drawn up in any form. The employee should be familiarized with it against signature or a corresponding act should be drawn up in the presence of at least two witnesses about the refusal to sign for familiarization.

Dismissal for theft

An employment contract with an employee can be terminated if theft (including minor) of someone else’s property, embezzlement, or intentional destruction or damage occurs at the place of work. In this case, the established fact of theft must be confirmed by a court verdict that has entered into legal force or by a decision of a judge, body, or official authorized to consider cases of administrative offenses.

Thus, for dismissal on this basis, the fact who owned the property in question has no legal significance. It may be owned by the employer, owned by employees or other persons. It is only important to prove the fact that the theft was committed at the place of work. It is also necessary to have a court verdict or resolution of a judge, body, or official authorized to consider cases of administrative offenses that have entered into legal force.

As stated in Art. 193 of the Labor Code of the Russian Federation, disciplinary action is applied no later than one month from the date of discovery of the misconduct. However, in this case, the monthly period begins to be calculated from the moment when the court verdict or resolution of the judge, body, official authorized to consider cases of administrative offenses came into force. This is stated in paragraph 44 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

To apply an extreme sanction in the form of dismissal, a corresponding order is issued as a general procedure, with which the employee is familiarized with signature.

Dismissal for violation of labor protection requirements

Another basis for applying a disciplinary sanction in the form of dismissal is a violation of labor protection requirements. In this case, two conditions must be met:

• the violation was established by the labor protection commission or the labor protection commissioner;
• the violation entailed serious consequences (work accident, accident, catastrophe) or knowingly created a real threat of such consequences.

When considering a dispute in court, the employer must prove that these consequences were the result of the employee’s violation of labor protection requirements. If there were no such consequences, but there was obviously a real threat of their occurrence, then the fact that these consequences could have occurred precisely because of the employee’s violation of labor protection requirements must also be proven by the employer.

note! Labor protection rules are established by Art. Art. 219 - 231 of the Labor Code of the Russian Federation, as well as other regulatory legal acts, including instructions on labor protection. The Labor Safety Commission is created in the organization in the manner prescribed by Art. 218 of the Labor Code of the Russian Federation.

To apply an extreme sanction in the form of dismissal, in this case, in general order, an appropriate order is issued, with which the employee is familiarized with signature.

Registration of dismissal and payments to employees in case of a single gross violation of labor duties In Art. 193 of the Labor Code of the Russian Federation states that the employer is obliged to formalize the imposition of a penalty, including in the form of dismissal, by issuing an order. In turn, in Art. 84.1 of the Labor Code of the Russian Federation states that termination of an employment contract is formalized by a dismissal order. There are no provisions in the legislation indicating that these two orders can be combined into one or replaced with each other. Therefore, two separate above orders should be drawn up. Letter of Rostrud dated June 1, 2011 N 1493-6-1 confirmed that in this situation the issuance of two orders is not a violation of labor legislation.

Thus, registration of termination of an employment contract is carried out in accordance with the general procedure. Namely, in the dismissal order in Form N T-8, in the column “grounds (document, number, date)” of the dismissal order, the details of the order to apply a disciplinary sanction in the form of dismissal are indicated. In the column “grounds for termination (termination) of the employment contract (dismissal)” indicate one of the following grounds:

1. in connection with a one-time gross violation by an employee of work duties (absenteeism) on the grounds of paragraphs. "a" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
2. in connection with a one-time gross violation of labor duties by an employee - appearing at work in a state of alcohol, drug or toxic intoxication (in this case, it is necessary to indicate specifically in what state the employee was noticed) on the basis of paragraphs. "b" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
3. in connection with a one-time gross violation of labor duties by an employee - disclosure by an employee of a secret protected by law (state, commercial, official, other, should be specified specifically), which became known to the employee in connection with the performance of his labor duties, or personal data of another employee on the basis of paragraphs. "c" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
4. in connection with a one-time gross violation of labor duties by an employee - theft, embezzlement, destruction or damage to property at the place of work (it is indicated specifically what violation took place) on the basis of paragraphs. "g" clause 6, part 1, art. 81 Labor Code of the Russian Federation;
5. in connection with a one-time gross violation of labor duties by an employee - violation by an employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of their occurrence, on the basis of paragraphs. "d" clause 6, part 1, art. 81 of the Labor Code of the Russian Federation.

The date of termination of the employment contract specified in the order and work book will be the employee’s last day of work.

One of the similar entries is made in work book employee and the employee’s personal card in form N T-2.

It should be remembered that based on the provisions of Art. 81 of the Labor Code of the Russian Federation, termination of a contract on this basis is impossible during the period of temporary incapacity for work and while the employee is on vacation.

On the day of termination of the employment contract, the employer is obliged to pay the employee wages, as well as pay compensation for unused vacation days (if any). If the employee did not work on that day, then the corresponding amounts are paid no later than the next day after the dismissed employee submits a request for payment. In the event of a dispute about the amounts of these amounts, the employer is obliged to pay the amount not disputed by the employee. This procedure follows from the provisions of Art. 140 of the Labor Code of the Russian Federation.

The law specifically specifies which violations of labor duties by an employee should be classified as gross:

a) absenteeism (absence from the workplace without good reason for more than 4 hours in a row during the working day);

b) appearing at work in a state of alcohol, drug or other toxic intoxication;

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

d) committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties;

e) violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences.

This list of gross violations is exhaustive and is not subject to broad interpretation.

Absenteeism

Absenteeism is one of the most serious violations of labor discipline. Therefore, legislation has established the right of an employer to terminate an employment contract with an employee even for a single absence without a valid reason. Absenteeism is defined as failure to show up for work during an entire working day or shift, or absence from work (an employee being outside the workplace) without a valid reason for more than 4 hours in a row during a working day. Law of June 30, 2006 No. 90-FZ also expanded the concept of absenteeism to include absence from the workplace without good reason throughout the entire working day (shift), regardless of its duration. This addition was made due to the fact that in some cases, by decision of the employer, the duration of the working day can be set to less than 4 hours. Thus, now if the employee showed up for work, but was then absent from the workplace for the entire working day, which was less than 4 hours, his actions should be regarded as absenteeism.

Special cases of absenteeism are also:

– leaving work without good reason by a person who has entered into an employment contract for an indefinite period, without warning the employer of dismissal due to at will;

– leaving work without good reason before the expiration of the two-week notice period for voluntary resignation;

– abandonment of work without a good reason by a person who has entered into an employment contract for a certain period, before the expiration of the contract or before the expiration of the warning period for early termination of the employment contract;

– unauthorized, without the permission of the administration, an employee goes on vacation, at least within the time limits specified in the vacation schedule;

– unauthorized use of days off (assigned, for example, for working on weekends), without the consent of the administration, except in cases where the employer, by virtue of the law, did not depend on the decision on the time of granting the specified days of time off or rest and he illegally refused to provide these days (for example, a refusal to provide an employee who is a donor with a day of rest in accordance with Part 4 of Article 186 of the Labor Code and Article 9 of the Law of the Russian Federation of June 9, 1993 No. 5142-1 “On the donation of blood and its components” after each day of donating blood and its components);

– absenteeism after the employee is transferred to new job produced by the employer in full compliance with current legislation.

However, if the transfer is recognized by the judicial authorities as illegal, then the dismissal of the employee cannot be considered justified and he must be reinstated in his previous job.

Absenteeism is failure to show up for work. If an employee does not show up for events not related to work (although they are held during working hours), then this cannot serve as a basis for dismissal (for example, the employee did not go to a demonstration, other public events, the employee did not appear at a ceremonial meeting of a foreign delegation that visited the company, the employee did not show up for the presentation of a new product of this company, etc.).

If, when resolving a dispute about the reinstatement of a person fired for absenteeism and the recovery of average earnings for the period of forced absenteeism, it turns out that the absence from work was caused by an unexcused reason, but the employer violated the dismissal procedure, the court, when satisfying the stated requirements, must take into account that average earnings in such cases, the reinstated employee may be charged not from the first day of absence from work, but from the day the dismissal order is issued, since only from this time absenteeism is forced.

In this note, I will tell you about the basis for terminating an employment contract as a one-time gross violation of labor duties by an employee. If an employee grossly violates his labor duties, he may be dismissed under clause 6 of part 1 of Article 81 of the Labor Code of the Russian Federation. Moreover, one single violation is enough for termination of the contract to be possible.

The law includes the following as gross violations of labor discipline:

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

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

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

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

- violation of labor protection requirements by an employee established by the commission (authorized) for labor protection - if the violation entailed serious consequences (industrial accident, breakdown, catastrophe) or knowingly created a real threat of their occurrence.

The employer has the right to initiate the procedure early termination an employment contract in relation to a particular employee on the basis of documents proving the latter’s guilt in committing actions (the occurrence of circumstances) and, thus, making it possible to dismiss the culprit. Documents confirming the employee’s guilt in a committed violation of labor duties can be confirmed by:

— act of absence of an employee from the workplace. In this case, the duration of continuous absence must be at least 4 hours in a row;

— a medical report on the results of an examination of an employee who appeared at work in a state of alcoholic (drug or other toxic) intoxication;

— conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of disclosure by the employee of a secret protected by law;

- a court verdict (a decision of a body authorized to apply administrative penalties), which has entered into legal force and confirms the fact that an employee at the place of work committed theft of property, its waste or deliberate destruction (damage);

— conclusions based on the results of the investigation (if necessary, with the attachment of investigation materials) of the fact of violation by the employee of labor protection requirements, which entailed serious consequences or knowingly created a real threat of such consequences.

All listed documents must be properly executed. It is necessary to pay attention to the fact that dismissal on the grounds provided for in paragraph 6 of part one of Article 81 of the Labor Code of the Russian Federation is a disciplinary sanction and, therefore, when carrying out the procedure for early termination of an employment contract, the employer is obliged to adhere to the procedure for applying disciplinary sanctions defined in Article 193 of the Labor Code of the Russian Federation.

Let's take a closer look at each of the grounds for dismissal.

Subparagraph “a” of paragraph b clearly defines what should be considered truancy. However, the employer needs to pay attention to the following:

— suspension of work due to a delay in payment of wages for more than 15 days is not considered absenteeism. In this case, the employee must notify the employer of his intentions in writing in advance;

- the employee has the right to refuse to perform work not stipulated by the employment contract. Therefore, his absence from the workplace for the specified reason is also not absenteeism.

If the employee decides to quit and without notifying the employer in writing two weeks in advance, he leaves workplace, the employer has the right to consider such actions as absenteeism.

An employee’s appearance at work in a state of intoxication (subparagraph “b” of paragraph 6) can be confirmed not only by a medical report. The evidence will be a document signed by two witnesses and a representative of the employer. The offender must also sign the document. However, if he refuses to sign, an appropriate entry must be made in the act. The employer is obliged to remove the offender from performing work (Article 76 of the Labor Code of the Russian Federation), i.e. do not allow him to enter the workplace as soon as it becomes obvious, for example, by some specific external signs, that the latter has consumed alcohol (drugs, etc.).

In the event that the employee has not been suspended from work, responsibility for possible consequences performance of work duties while intoxicated falls on the employer. In the future, the employee may be allowed to perform work as soon as the circumstances preventing this no longer exist. However, this does not deprive the employer of the right to dismiss an employee for gross violation of labor discipline. If, despite the testimony given in relation to the employee by other persons, a subsequent medical report does not confirm the fact of his intoxication, then the employer does not have the right to refuse the employee access to the workplace.

Dismissal for disclosure by an employee of a secret protected by law (subparagraph “c” of paragraph 6 of Article 81 of the Labor Code of the Russian Federation) is possible if:

1. An employment contract or other document, with which the employee was familiarized with signature, contains a condition on the inadmissibility of disclosure by the employee of information constituting a secret protected by law.

2. The relevant information was entrusted to the employee for the performance of the work assigned to him (labor function).

3. The fact of disclosure by an employee of relevant information - for example, personal data of another employee - is documented.

Early termination of an employment contract with an employee for theft or intentional destruction of someone else’s property committed at the workplace (subparagraph “d” of paragraph 6) is possible if his guilt is established. This can only be done by a court or body (official) that has the right to apply administrative penalties. The basis for dismissal is the decision of the above authorities to hold the employee accountable.

Please note: dismissal under subparagraph “d” of paragraph 6 is possible if the court verdict indicates that the perpetrator has been sentenced to punishment, which does not exclude the possibility of the employee fulfilling his job duties.

This circumstance must be taken into account when issuing a dismissal order and making appropriate entries in the work book.

Dismissal under subparagraph “e” of paragraph 6 of Art. 81 of the Labor Code of the Russian Federation is possible if:

1. The employee was familiarized with the labor safety requirements against signature.

2. The employer provided the employee safe conditions labor that meets all legal requirements.

3. The employee’s violation of these requirements actually entailed serious consequences or created a real threat to their occurrence.

4. The circumstances listed above are documented: by an industrial accident report, an expert opinion issued by an authorized body, a resolution of a state labor protection inspector, etc.

The employer issues an order (instruction) regarding the dismissal of an employee. On its basis, other necessary documents are drawn up.

More on topic 2.5. Gross violation of labor duties:

1. 5. One-time gross violation by the head or deputy of the organization of labor duties
2. 1. Repeated gross violation of the charter of an educational institution within one year
3. Registration of dismissal and payment to employees in case of a single gross violation of labor duties
4. Section XIII. Protection of labor rights and freedoms. consideration and resolution of labor disputes. liability for violation of labor legislation and other acts containing labor law norms
5. Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOMS. CONSIDERATION AND RESOLUTION OF LABOR DISPUTES. LIABILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW STANDARDS
6. 13. The emergence of restrictions on engaging in certain types of work activities established by the Labor Code of the Russian Federation, other federal laws and excluding the possibility of an employee fulfilling obligations under an employment contract
7. Chapter 62. LIABILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW STANDARDS
8. Chapter 62. Responsibility for violation of labor legislation and other acts containing labor law norms

DISMISSAL OF A MANAGER FOR A SINGLE GROSS VIOLATION (CLAUSE 10 OF PART 1 OF ARTICLE 81 OF THE LABOR CODE OF THE RF)

O. SABELNIKOV

A single gross violation of labor duties is sufficient grounds for dismissal of the head of the company. But what exactly is considered a gross violation? How to properly record it and carry out the dismissal procedure so as not to break the law? After all, the dismissal of the head of a company is a serious step that affects the activities of the entire organization. Following the recommendations given in the article will help to minimize possible problems in the event of a legal dispute.

The head of an organization is a responsible person who performs an important function in managing the affairs of the company. The success of the organization and the well-being of its employees directly depend on it. Therefore, the requirements for professional and business qualities, as well as the behavior of such a person, are subject to increased standards. The Labor Code provides a separate basis for terminating a contract with a manager if he fails to fulfill his duties. This basis is a one-time gross violation of labor duties (clause 10, part 1, article 81 of the Labor Code of the Russian Federation).
Who is covered by this clause?
1. Head of the organization (branch, representative office).
2. Deputy head of the organization (branch, representative office).
What are the signs of a violation for which you can be fired?
1. A one-time violation is enough.
2. The violation must be gross.
3. This violation must relate to the person’s work duties.

It should be noted that clause 6, part 1, art. 81 of the Labor Code contains a similar basis for terminating a contract with any employees. The difference from clause 10 is that clause 6 contains a list of violations that are considered gross. In the case of the manager, there is no such list, therefore, a wider range of violations falls under the scope of this paragraph. Therefore the main practical question arising when applying clause 10 - what kind of violation can be considered gross? As the Moscow City Court points out in its Appeal ruling dated January 22, 2014 in case No. 33-1488/14 and other rulings, this is a descriptive-evaluative concept and is the subject of assessment by the court considering the labor dispute.
First of all, the Plenum of the Supreme Court of the Russian Federation provides a comment on this topic in paragraph 49 of its Resolution No. 2 of March 17, 2004:
“The question of whether the violation committed was gross is decided by the court, taking into account the specific circumstances of each case...
In particular, failure to fulfill the duties assigned to these persons by the employment contract, which could result in harm to the health of employees or property damage to the organization, should be regarded as a gross violation ....”
It seems that there may be violations that do not cause property damage to the company and are nevertheless significant. For example, a violation that causes harm business reputation, may well be considered rude.
The Plenum also indicates that the burden of proving the fact and severity of the violation lies with the employer. It is separately noted that the leaders of other structural divisions or Chief Accountant cannot be dismissed on this basis. For them there is just clause 6, part 1, art. 81.
Another question is whether a manager can be fired under clause 6. There are different opinions on this matter and different court decisions. For example, the Moscow City Court, in its Ruling dated 02.02.2011 in case No. 33-291, indicated that there were no grounds for dismissal under clause 10, since absenteeism was committed, and this is grounds for dismissal under clause 6. At that At the same time, based on the interpretation of the Labor Code and Resolution of the Plenum of the Supreme Court No. 2, it seems that the most correct would be the dismissal of managers in all cases precisely under clause 10.
Clause 9, Part 1, Art. 81 of the Labor Code provides for another ground for dismissal, bordering on the one under consideration - the adoption of an unfounded decision that resulted in damage to the organization’s property (violation of safety, unlawful use, etc.). This basis may apply to the same persons as clause 10, as well as to the chief accountant. How to distinguish between border matters here? Interpreting the law together with Resolution of the Plenum of the Supreme Court No. 2, we can conclude that clause 9 applies where property damage was actually caused, and clause 10 - if there was a threat of causing it. In addition, clause 9 can be applied in cases where there was no violation of labor duties. At the same time, the harm actually caused does not exclude the application of clause 10. The decision in each case must be made taking into account the specific circumstances.
What should be considered included in the scope of a manager’s job responsibilities? First of all, this is an employment contract and job description. But due to the position and increased responsibility of this person, there are other sources of his responsibilities. These are the constituent documents of the organization, regulations on the branch, representative office, etc. local acts, and federal laws and others regulations. For example, a manager is obliged to ensure compliance with the Labor Code in relation to employees of the organization, even if this is not stated in his employment contract.
The following should be noted here. In case of violation of labor duties, which simultaneously contains elements of an administrative offense, it may be unprofitable for the employee to challenge the dismissal. After all, refusal to satisfy a claim may ultimately lead to the imposition of an administrative penalty on the employee. The situation is similar with criminal offenses.
Dismissal is a disciplinary sanction. In accordance with Part 1 of Art. 192 of the Labor Code penalties are applied for committing a disciplinary offense. It is understood as the failure or improper performance by an employee, through his fault, of the labor duties assigned to him. Thus, to the listed signs of a violation, another sign common to all violations is added - guilt. Guilt can be expressed in the form of direct intent and negligence.
In addition, when imposing a penalty, the following must be taken into account:
- severity of the offense;
- the circumstances under which it was committed;
- previous behavior of the employee;
- his attitude towards work.

What violations in judicial practice are recognized as falling under clause 10, part 1, art. 81 of the Labor Code? Let's give a few examples.
1. Conducting illegal commercial activities using their official powers (Determination of the Moscow Regional Court dated May 20, 2010 in case No. 33-9730).
The deputy director organized paid parking in the enterprise's garage. He embezzled money from this activity.
The court determined that this activity was related to the performance of the employee’s job duties. In accordance with the job description, he was in charge of economic and security issues, and the head of the garage reported directly to him. The illegal activity was a violation of these duties. The organization's property was used illegally, and cash from such use were not at her disposal. This caused property damage to the organization. The violation was considered gross, and the dismissal of the deputy director was considered legal.
2. Illegal retention constituent documents company (Determination of the Moscow City Court dated February 17, 2014 N 4g/7-551/14).
The following conclusion of the court is interesting in this case. The plaintiff stated that the retention of documents could not result in harm to society material damage. The court found this argument unfounded and indicated that the violation in itself was gross and sufficient for dismissal.
3. Illegal receipt of funds in connection with the performance of one’s job duties (Appeal ruling of the Moscow City Court dated November 18, 2013 in case No. 11-32416).
In this case, the fact of violation was established by a criminal verdict. The following points are interesting.
The decision to dismiss was made before the verdict came into force. However, the court recognized that this does not affect the legality of the dismissal. The grounds for dismissal are established in the memo; Subsequently, the verdict was overturned, and the plaintiff was acquitted due to the lack of corpus delicti. The court indicated that this cannot be a basis for reinstatement. At the time of dismissal, the employer established the fact of a single gross violation.
4. Violation of the procedure for disposing of the company’s funds (Appeal ruling of the Moscow City Court dated September 24, 2013 in case No. 11-30406).
This case is notable because the employee was fired during a period of temporary incapacity for work. By general rule, which applies to all employees, dismissal during this period is unacceptable. However, the employee hid the fact of temporary disability from the employer. In accordance with paragraph 27 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2, this should be regarded as an abuse of law. It is indicated that in such cases the employer should not be responsible for adverse consequences resulting from the employee’s dishonest actions. The court has the right to refuse to satisfy the claim of an abusive employee, which is what was done in this case.
5. Misuse of funds intended for payment of bonuses (Appeal ruling of the Moscow City Court dated March 14, 2013 in case No. 11-8064).
In this case, the funds were not appropriated by the manager. However, their use to improve the skills of employees and replenish the material and technical base of the institution was illegal. Thus, a gross violation can be expressed not only in obtaining personal gain.

In what cases do courts reinstate dismissed managers?
1. Appeal ruling of the Moscow City Court dated February 12, 2014 in case No. 33-664/14.
In the first instance, it was established that the director of the branch was dismissed for violation of duties, which resulted in the termination of the contract with the organization’s client. The dismissal was recognized as legal.
However, the appeal revealed that in fact the contract with the client was not terminated. The client insisted that the defendant fulfill his obligations under the contract properly. Also, upon dismissal, it was not indicated what the violation of the employee’s labor duties was. The claim that the employee did not notify management of the client's claims was refuted by evidence. The dismissal was declared unjustified and illegal. The employee was reinstated and was paid wage for the period of forced absence and moral damages were compensated.
2. Appeal ruling of the Moscow City Court dated November 20, 2013 N 11-37434.
The plaintiff was fired for systematic failure to meet deadlines for assigned tasks and failure to defend the strategy. The defendant submitted documents confirming that the plaintiff was appointed responsible for preparing the strategy by a certain date. The deadline was postponed due to the unavailability of the strategy. The task was not completed by the deadline due to the employee’s temporary disability. The plaintiff asked to postpone the defense of the strategy to a later date. Based on the above circumstances, the court found that the defendant did not provide evidence of gross violation of labor duties by the employee.
In addition, the defendant did not demand an explanation from the plaintiff before dismissal in accordance with Art. 193 of the Labor Code of the Russian Federation. The plaintiff’s memo with a request to extend the period for preparing the strategy is not an explanation. Thus, the procedural procedure for dismissal was violated.
The employee was reinstated and appropriate payments were awarded.
3. Appeal ruling of the Moscow Regional Court dated January 15, 2013 in case No. 33-26703.
The plaintiff worked as a deputy director and performed duties in accordance with the job description. After the change of director, the job description was canceled. Despite this, the deputy continued his work, after which he was fired. The employer argued that the employee was allegedly not present at work, while he was only engaged in performing his duties outside the workplace.
The court recognized that this violation could not result in harm to the health of workers or property damage to the organization. In addition, the employee was not familiar with the order to cancel job description. The dismissal was declared illegal.
4. Determination of the St. Petersburg City Court No. 33-439.
The head of a branch of the enterprise was fired for carrying out entrepreneurial activity on the territory of the organization. Upon dismissal, it was stated that the activity was illegal, created a threat to the safety of people and violated financial discipline. However, the fact of violation of the employee’s duties was not confirmed in court.
The employer’s mistake was that the plaintiff was not given the responsibility to monitor the execution of certain contracts with contractors. The plaintiff did not know about the activities that the employer took to be her illegal business activities. Her offense was to allow such events. However, the disciplinary measures taken did not correspond to the gravity of this offense. The defendant took into account the circumstances of the offense, the plaintiff’s previous behavior and her active and conscientious attitude to work. The plaintiff was reinstated at work.
5. Ruling of the Supreme Court of the Russian Federation dated May 28, 2010 N 5-B10-34.
Upon termination of the employment contract with the plaintiff, the legal order dismissals. The court concluded that a single gross violation had occurred. However, due to a violation of the procedure, the decision to reinstate the plaintiff at work was recognized as legal.

As can be concluded from the examples given judicial practice, the employer should pay attention to many factors.
1. When concluding contracts with managers and deputies, their job responsibilities must be properly spelled out. Among other things, those obligations that follow from laws and local regulations must be included in the contract. If you list all the employee’s responsibilities in one document, then there will be fewer grounds for disputes later.
2. Managers should be fired only if they commit truly gross violations. Rudeness, as previously mentioned, is indicated by the possibility of causing harm. Sometimes the violation itself can be considered gross. However, to be on the safe side, it is better to think through the argument in this direction in advance. It is important to take into account the nature of the violation, the degree of guilt, the employee’s behavior, his attitude to work and other circumstances.
3. The issue of the seriousness of the violation is in any case decided by the employer. Therefore, a list of violations that will be considered gross can be included in the employment contract. Such a list should not be made closed.
4. It is important to ensure that the fact of the violation and all circumstances essential to the case can be proven.
Written documents are primarily presented as evidence of violations in court. These may be acts office notes, letters, plans, protocols, contracts and other documents, both official and unofficial.
The evidence is external acts adopted in relation to an organization or leader: court decisions, decisions of administrative bodies, inspection reports, and the like.
In addition, the violation can be proven through testimony.
If possible, it is better to record the violation in writing, as well as attract as many reliable witnesses as possible. When drawing up documents, you should pay attention to the correctness of the details and rules of execution (indicate the correct date, time, ensure the signatures of the necessary persons, and so on).
5. The dismissal procedure must comply with the law.
It is worth being on the safe side and checking whether the employee is in a position of temporary disability.
It is imperative to request a written explanation from the employee regarding the violation in accordance with Art. 193 of the Labor Code of the Russian Federation. If the employee is ready to provide an explanation, there is no need to formalize such a requirement in writing. Otherwise, it is better to make a written request and hand it over to the employee against signature. The employee is given two days to provide an explanation. If an explanation is not received, a report about this is drawn up.
When drawing up a dismissal order, the basis for dismissal must be correctly indicated - the commission of a one-time gross violation of labor duties. It is necessary to indicate which specific duties were violated and refer to supporting documents.
It is recommended to create two separate orders. One is about imposing a disciplinary sanction indicating all the details of the offense. The second is about termination of the employment contract with reference to clause 10, part 1, art. 81 of the Labor Code of the Russian Federation and the first order. The employee should be familiarized with both orders against signature. When dismissing the head of an organization, the first order is the decision general meeting members or board of directors.
The dismissal of a manager is a serious step that directly affects the functioning of the company. And if you really need to do this, then following all the recommendations listed will minimize the problems that may arise. In order for the court to take the employer’s side, it is necessary to take measures and provide conditions for this.

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