Termination of an employment contract due to repeated non-fulfillment by an employee without good reason of labor duties, if he has a disciplinary sanction. Violations for which dismissal is possible due to systematic non-performance of work

Disputes about dismissal in case of repeated non-performance by an employee without good reasons job duties, if he has disciplinary action(clause 5, part 1, article 81 of the Labor Code of the Russian Federation)

Dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is possible due to repeated non-fulfillment by an employee without good reason of labor duties, i.e. it is allowed only if he has a disciplinary sanction that has not been withdrawn and extinguished, and has again committed a disciplinary offense.

The list of disciplinary sanctions is established by law. Article 192 of the Labor Code of the Russian Federation provides the following types disciplinary sanctions: remark, reprimand, dismissal on appropriate grounds. This list is exhaustive. This means that the application of any other type of penalty is illegal.

The disciplinary sanction is valid for one year. from the date of its application. After this period, it automatically loses its legal force and can no longer form a sign of repetition necessary for termination. employment contract according to paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Any order or instruction of the employer to remove the disciplinary sanction due to the expiration of the one-year period is not required. An order (instruction) is required in without fail if the employer makes a decision on the early removal of the penalty from the employee.

Thus, when deciding on the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, disciplinary sanctions removed ahead of schedule or invalidated after one year from the date of their application are not taken into account. In addition, for the dismissal of an employee for repeated failure to perform labor duties without good reason, it does not matter what disciplinary sanction: a remark or a reprimand - the employee has at the time of another disciplinary offense. The main thing is that it should not be removed and not lose force. Penalties imposed on the employee at the place of his previous work are also not taken into account when deciding on the dismissal on the specified basis.

For disciplinary offense characterized by the failure of the employee to fulfill his labor duties, provided for labor law and other normative legal acts containing norms labor law, collective agreement, the rules of the internal work schedule, charters and regulations on discipline, job descriptions, as well as arising from the concluded employment contract.

The employer should remember that according to Part 3 of Art. 68 of the Labor Code of the Russian Federation, when hiring, he is obliged familiarize the employee against signature with internal labor regulations, other local regulations directly related to the labor activity of the employee, the collective agreement.

With the job description, which fixes the rights and obligations of the employee, the latter must be familiarized before signing the employment contract.

When included in the text of the employment contract references to job description it is also necessary to indicate all the details of the local regulatory act that approved this instruction (number, date of adoption of the local regulatory act, the person who signed the specified act).

With Ivanov, entering the position of personnel inspector, an employment contract was concluded, where there was a link to the job description. However, her details were not specified in the employment contract. When hiring Ivanov, they did not familiarize him with the job description of the personnel inspector against receipt.

In the process of work, a dispute arose between the management of the organization and Ivanov regarding his obligation to draw up time sheets, since he was not informed of the need to fulfill this obligation when hiring.

In this regard, the employer dismissed Ivanov for repeated failure to fulfill his labor duties without good reason under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

The employee filed a lawsuit for reinstatement, recovery of wages for the time of forced absenteeism and compensation for non-pecuniary damage, considering the dismissal illegal, since he was not familiar with the job description when he was hired.

After listening to the views of the parties, having studied the case materials and the evidence presented, the court decided to reinstate Ivanov at work, since the obligation to draw up time sheets was not provided for by the employment contract, and the employee was not familiarized with the job description against receipt.

In accordance with Art. 56 Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers. The employer could not prove the fact that when hiring Ivanov was aware of the duty of the HR inspector to draw up time sheets, since the plaintiff's signature on familiarization was missing in the job description and in the registration log.

Non-fulfillment by an employee without good reason of the labor duties assigned to him is a violation labor discipline(violation of the internal labor regulations, job descriptions, regulations, orders of the head of the organization, technical rules etc.).

It was suggested that the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation is allowed subject to the following mandatory conditions:

• a) non-fulfillment of labor duties has already taken place, and a disciplinary sanction has been applied to the employee, which has not been removed or extinguished;
• b) labor duties were not performed by him without good reason.

The position of A.I. Stavtseva seems to be more correct, she singled out the following conditions for the legitimacy of dismissal on this basis:

• - non-fulfillment or improper fulfillment of labor duties assigned to the employee by an employment contract or internal labor regulations. It is impossible to dismiss an employee for misconduct that is not related to his labor activity. Refusal to perform work that is not included in the scope of the employee's labor duties (except in cases of mandatory transfer for employees), or from performing a public assignment is not a violation of labor discipline;
• - the presence of guilt in the actions of employees in the form of intent or negligence. Failure to perform labor duties for a good reason does not give grounds for dismissal;
• - the systematic nature of the guilty violation, i.e. disciplinary offense is not the first time, for which the employee was earlier (within last year) a disciplinary measure has already been applied;
• - committing a specific guilty offense before dismissal, from the moment of which more than a month has not passed.

Attention is drawn to these circumstances in the decision of the Plenum Supreme Court RF dated March 17, 2004. In clause 33 of this resolution it is noted: the employer has the right to terminate the employment contract under clause 5, part 1, art. 81 of the Labor Code of the Russian Federation, provided that a disciplinary sanction was previously applied to the employee and at the time of his repeated failure to fulfill his labor duties without good reason, it was not removed and not repaid.

Application to the employee of a new disciplinary sanction, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is also permissible if the failure to perform or improper performance due to the fault of the employee of the labor duties assigned to him continued, despite the imposition of a disciplinary sanction.

Suppose an employee, in violation of his labor duties, did not go on a business trip. In this case, the employer has the right to apply a disciplinary sanction to him (for example, a reprimand), except in cases where the employee has the right to refuse a business trip (Articles 259, 264 and 268 of the Labor Code of the Russian Federation). If, despite the imposed disciplinary sanction, the employee continues to refuse to go on a business trip without good reason, the employer has the right to apply a new penalty to him, including dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

Similarly, an employer may act in the event that an employee refuses without good reason, for example, to undergo training and testing of knowledge and skills in the field of labor protection or a periodic medical examination, if this is prerequisite m permit to work.

Unfortunately, the Labor Code of the Russian Federation does not disclose the concept of "good reasons". Therefore, in each individual case, the employer decides this issue based on specific circumstances.

The employer is obliged to prove the correctness of imposing all disciplinary sanctions with which he justified the dismissal order, and the court should check their legality.

Within the meaning of the term "repeated" for the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it is enough to commit two disciplinary offenses, for the first of which the employee has already been sanctioned.

In this regard, one cannot agree with the opinion of A.K. Gavrilina that, in contrast to the previously applied grounds for dismissal for systematic non-fulfillment by an employee without good reason of the duties assigned to him by an employment contract or internal labor regulations, if the employee was previously measures of disciplinary or social influence were applied (clause 3 of article 33 of the Labor Code of the Russian Federation), from the grounds for dismissal provided for in clause 5 of Art. 81 of the Labor Code of the Russian Federation, it cannot be determined that initially, for a violation of labor discipline, an employee must be subjected to a disciplinary sanction and then again commit a violation of labor discipline, for which he will be subjected to a disciplinary sanction in the form of dismissal.

Back in 1984, the Supreme Court of the USSR, and before that the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions in 1983, clarified that workers who have a disciplinary or social penalty for violating labor discipline and violated it again are considered systematically violating labor discipline. However, some scientists and practitioners considered this position to be controversial, since earlier arbitrage practice the concept of "systematic violation" was interpreted as the commission by a person of at least three disciplinary offenses.

Paragraph 35 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 also sets other requirements for the courts. So, when considering a case on the reinstatement of a person dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, or on contesting a disciplinary sanction, the courts must take into account that the employee’s failure to perform his labor duties without good reason is the failure to perform or improper performance through the fault of the employee of the labor duties assigned to him (violation of the requirements of the law, obligations under an employment contract, internal labor regulations, official instructions, regulations, orders of the employer, technical rules, etc.).

The Plenum of the Supreme Court of the Russian Federation, in particular, refers to these violations:

• – absence of an employee without good reason at work or workplace;
• - refusal of the employee without good reason to perform labor duties in connection with a change in the established order of labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue of the employment contract the employee is obliged to perform the labor function determined by this contract, to comply with the employer's internal labor regulations ;
• – refusal or deviation without good reason from medical examination workers of certain professions, as well as the refusal of the employee to pass in work time special education and passing examinations on labor protection, safety precautions and operating rules, if this is a prerequisite for admission to work.

In addition, the Plenum of the Supreme Court of the Russian Federation draws attention to the fact that when resolving labor disputes arising in connection with the application of disciplinary measures to employees who refused to conclude a written agreement on full liability for the shortage of property entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the case when it was not simultaneously concluded with an employment contract, it is necessary to proceed from the following.

If the need to conclude an agreement on full liability arose after the conclusion of an employment contract with an employee and is due to the fact that, in connection with a change in the current legislation, the position held by him or the work performed is included in the list of positions and works replaced or performed by employees with whom the employer can enter into written agreements on full liability, however, the employee refuses to conclude such an agreement, the employer, by virtue of Part 3 of Art. 74 of the Labor Code of the Russian Federation is obliged to offer him another job, and in the absence of it or the employee’s refusal from the job offered to him, the employment contract is terminated with him in accordance with paragraph 7 of part 1 of Art. 77 of the Labor Code of the Russian Federation (refusal of the employee to continue work due to a change in the terms of the employment contract determined by the parties) (clause 36 of the decision of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004).

In cases of reinstatement at work of persons dismissed under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, the defendant is obliged to provide evidence proving that:

• 1) the violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract;
• 2) the employer complied with the provisions of Parts 3 and 4 of Art. 193 of the Labor Code of the Russian Federation, the terms for applying a disciplinary sanction.

It should be borne in mind that:

• 1) a one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered;
• 2) the day when a misdemeanor is discovered, from which the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether he is vested with the right to impose disciplinary sanctions;
• 3) within a month for the application of a disciplinary sanction, the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion representative body workers (part 3 of article 193 of the Labor Code of the Russian Federation); the absence of an employee at work for other reasons, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course specified period;
• 4) leave interrupting the flow of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with training in educational institutions, unpaid leave.

The employer when applying paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, we must not forget that before applying a disciplinary sanction, he must request a written explanation from the employee. If, after two working days, the specified explanation is not provided by the employee, then an appropriate act is drawn up.

The employee has the right to provide such an explanation, and the employer is obliged to request it. One should agree with the statement of A. K. Gavrilina that the employer has the right to evaluate the work activity of the employee, dressing it in the form of an order, without applying a disciplinary sanction to him. IN this case the requirement to obtain an explanation from the employee is optional. Therefore, the absence of such an explanation cannot serve as a sufficient basis for recognizing the employer's order as unlawful. However, the legal consequences in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation, the publication does not have such an order.

An example from judicial practice. M. filed a lawsuit against ZhBK-2MS LLC for reinstatement, recovery of wages for the time of forced absenteeism, compensation for non-pecuniary damage and recovery of expenses for paying for the services of a representative in the amount of 3 thousand rubles. In the application, the plaintiff referred to the fact that by order CEO LLC "ZhBK-2MS" X. On July 18, 2002, he was dismissed from the post of head of the Apastovsky quarry under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering the dismissal unlawful, the plaintiff pointed out that he did not commit any violations, he was not acquainted with the orders of the director of July 3, 2002 and July 4, 2002 on imposing disciplinary sanctions on him in the form of a remark and a reprimand, he was not acquainted with the explanations from him they didn’t demand, the orders were sent to him by mail; On July 17, 2002, he was at the plant in Kazan to resolve issues that are part of his direct production duties. According to the plaintiff, the real reason for the dismissal was his critical remarks to the general director of ZhBK-2MS LLC X.

In the supervisory appeal, M. requested that the court decisions be canceled and a new decision be made to reinstate him in the position of head of the Apastovsky quarry.

Judicial board for civil affairs On August 15, 2003, the Supreme Court of the Russian Federation canceled the court decisions, and sent the case for a new trial, indicating the following.

In accordance with Art. 387 of the Labor Code of the Russian Federation, the grounds for canceling or changing judicial decisions by way of supervision are significant violations of the norms of substantive or procedural law.

By virtue of Art. 60 and 72 of the Labor Code of the Russian Federation, the employer is not entitled to require the employee to perform work not stipulated by the employment contract, except as provided for by the Labor Code of the Russian Federation and other federal laws, and also to transfer the employee to another permanent job without his written consent.

Transfer to another permanent job in the same organization, requiring the written consent of the employee, by virtue of Art. 72 of the Labor Code of the Russian Federation should be considered a change labor function or other terms of the employment contract determined by the parties (Article 57 of the Labor Code of the Russian Federation). The same consent must be obtained from the employee in case of transfer to a permanent job in another organization or in another locality together with the organization.

If in the employment contract the place of work of the employee was determined with an indication of a specific structural unit, then it should be assumed that the transfer of the employee to another structural unit of the organization is possible only with his written consent, since in this case this entails a change in the essential terms of the employment contract ( part 2 article 57 of the Labor Code of the Russian Federation).

As can be seen from M.'s explanation, after receiving a telephone message dated July 2, 2002, about sending an employee to Kazan to repair the bulldozer, he left the village. Apastovo together with the bulldozer G.; the latter, having confirmed the breakdown of the bulldozer, at the same time refused to repair the bulldozer, referring to the fact that this was not part of his duties, a written order on a business trip of an employee from the village. Apastovo in Kazan (the distance between them is 150 km) and there was no travel allowance. Other machine operators under his command categorically refused to go to Kazan to repair the bulldozer (which was confirmed by him at the court hearing), citing the fact that they got a job in a quarry with. Apastovo, in Kazan there is a transport workshop, workers and all necessary equipment for the repair of bulldozers.

Thus, the court did not take into account that M. had no legal grounds for sending his subordinate employees to Kazan to repair the bulldozer and, due to this circumstance, could not follow the relevant instructions of the head of the organization.

Consequently, the court should have taken into account that the orders to impose disciplinary sanctions on M. on 3 and 4 July 2002 were issued without taking into account the requirements of Art. 60 and 72 of the Labor Code of the Russian Federation.

When resolving disputes of persons dismissed under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without valid reasons, it should be borne in mind that the employer has the right to terminate the employment contract on this basis, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment of labor duties by him without valid reasons, it has not been removed and not redeemed.

At a new consideration of the case, the employer is obliged to prove the correctness of the imposition of all disciplinary sanctions with which he justified the dismissal order.

Main reason for going to court former employees to whom dismissal is applied as a measure of disciplinary sanction, there is a conviction that there was no disciplinary offense in their actions (inaction). When considering such disputes, the court determines the legality of the employee's behavior and assesses the legality and validity of the employer's actions when applying the chosen measure of disciplinary action.

Application specified in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation of the grounds for dismissal shows that not only the employer, but in some cases the court does not always correctly interpret this measure.

Thus, the director of the neuropsychiatric dispensary imposed disciplinary sanctions on the driver P. for several violations of labor discipline: on August 8, 2006 - a remark for leaving work prematurely on August 7, 2006, on August 14, 2006 - a reprimand for being late for work on August 13, 2006 ., August 20, 2006 - reprimanded for using an official car on August 18, 2006 for personal purposes. By order of 22 August 2006, P. was dismissed in accordance with clause 5, part 1, art. 81 of the Labor Code of the Russian Federation.

Objecting to the termination of the employment contract, P. went to court with a claim for reinstatement. The court recognized P.'s dismissal as lawful, since repeated failure to fulfill labor duties took place and the employee was brought to justice in connection with this. disciplinary responsibility.

Thus, both the employer and the court recognized the possibility of applying the grounds for dismissal, provided for in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for a set of previously committed misconduct, for each of which the employer has already applied a disciplinary sanction to the employee in the form of a remark or reprimand.

At the same time, according to the meaning of this provision of labor legislation, to terminate an employment contract, one violation of labor duties is sufficient, for which a disciplinary sanction is imposed, in order for the employer to exercise his right to dismiss the employee, however, dismissal is possible only for another violation of labor discipline by the employee.

When calculating or summing up disciplinary sanctions, the employer must also take into account the fact that neither non-payment of a bonus, nor a reprimand, nor other types of disciplinary action not provided for by the Labor Code of the Russian Federation, other federal laws, regulations and charters on discipline, are not subject to disciplinary action. Therefore, they should not be taken into account when deciding on the dismissal of an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. For example, non-payment of a bonus to an employee cannot be regarded as the first penalty, and when committing a disciplinary offense within a year from the date of non-payment of the bonus, paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

In addition, it is worth noting that for an employee who has submitted a letter of resignation on own will, during the period of such a warning, labor legislation applies in full without any restrictions. The employment relationship in this case is terminated only after the expiration of the term of the notice of dismissal. Therefore, despite the employee's statement of dismissal of his own free will, he can be dismissed at the initiative of the employer for repeated failure to perform labor duties without good reason, if the violation that was the reason for dismissal actually took place and could be the basis for termination of the employment contract.

Actions of an employee that are not related to his job duties should not be considered as a disciplinary offense. Therefore, it is impossible to dismiss an employee under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, for example, for misbehavior in everyday life.

Employers should remember that when considering labor disputes on the reinstatement of persons dismissed due to repeated non-fulfillment of labor duties without valid reasons, if these persons have a disciplinary sanction, in subject of proof include the following circumstances:

• - what was the violation, which was the reason for dismissal;
• - whether the misconduct underlying the dismissal order was expressed in the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (and the employee does not agree to continue working in the new conditions);
• – repeated non-fulfillment of labor duties without valid reasons;
• - the reasons for the repeated non-fulfillment of labor duties by the employee, the nature of these reasons (valid or disrespectful);
• - the fault of the employee in non-fulfillment without good reason of the labor duties assigned to him;
• - the severity of the misconduct committed, the circumstances under which it was committed, the consequences of the misconduct;
• - the behavior of the employee preceding the misconduct, his attitude to work;
• - the application of earlier disciplinary measures to the plaintiff, the correctness of imposing on the employee all disciplinary sanctions with which the employer justified the dismissal order, regardless of whether the plaintiff claimed claims to recognize them as unreasonable;
• - observance by the employer of the deadlines for the application of disciplinary action;
• - whether the procedure for taking into account the opinion of the elected body of the primary trade union organization has been observed (in accordance with Part 2 of Article 82, Articles 374 and 376 of the Labor Code of the Russian Federation);
• - whether the dismissal was made during the period of temporary disability of the employee or while on vacation and other circumstances.

Necessary evidence in cases of this category, which must be presented by the defendant, are:

• 1) a copy of the order on hiring the plaintiff for work (extract from the order);
• 2) a copy of the order on the dismissal of the plaintiff (extract from the order);
• 3) an employment contract, job description of the employee and other documents that make it possible to determine what duties the employee performed;
• 4) copies of orders on the application of disciplinary sanctions;
• 5) materials on the basis of which the application of disciplinary sanctions was carried out (memorandums, materials of internal audits, explanatory notes, representations, acts, etc.);
• 6) duration documents seniority employee (work book, etc.);
• 7) certificate of the plaintiff's average salary.

Repeated violation by an employee without valid reasons of labor duties must be documented, in particular, by an order on the application of a disciplinary sanction.

When considering the relevant labor disputes, it often turns out that disciplinary sanctions were not properly executed, and this serves as a basis for satisfying the claim and reinstating the employee at work, even if the employee has committed the corresponding disciplinary offense.

The employer should also take into account the severity of the misconduct committed, which served as the basis for dismissal under paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. Often there are cases when an employer, in order to dismiss an employee on this basis, applies disciplinary sanctions against him, which clearly do not correspond to the severity of the misconduct (5 minutes late for work, leaving work 5 minutes earlier than provided for by the internal labor regulations, etc.). The court, considering such cases, restores the employee to his previous job.

So, M. worked as a janitor at JSC Yelets Tabak. By order of the director dated July 3, 2002, she was dismissed in accordance with paragraph 5 of Art. 81 of the Labor Code of the Russian Federation. Considering her dismissal unlawful, M. filed a lawsuit for reinstatement, arguing that the disciplinary sanctions applied to her were unlawful. By decision of the Yelets City Court M., the claim was denied.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court, having considered the cassation appeal of M., canceled the decision of the Yelets City Court and issued a new decision, which satisfied the requirements of M.

The Judicial Board acknowledged that on March 6, 2002 the plaintiff was subjected to a disciplinary sanction for

On February 28, 2002, without the permission of the supervisor of the watchmen's shift, workplace. The court found that her absence was of short duration, as she needed to take medicine for her appointment. Although the plaintiff's actions contained signs of a disciplinary offense (guilty failure to comply with the requirements of the job description), since she left the workplace without notifying the shift supervisor of the watchmen, the cassation instance, having considered M.'s disciplinary offense, assessed it as insignificant due to the fact that her absence from the workplace was short (3 min.).

Formally, the actions of M. should be qualified as a disciplinary offense, but due to the nature of the offense committed, i.e. its insignificance, the Judicial Collegium for Civil Cases recognized the application of a disciplinary sanction in the form of a reprimand to M. as unlawful.

The second offense for which she was disciplined was personal telephone conversations by office phone. On the basis of the job description approved by the director of OAO Yelets Tabak, which defines the rights and obligations of the janitor, a ban was established on conducting personal conversations from a telephone set located at the janitor's workplace.

The Judicial Collegium for Civil Cases of the Lipetsk Regional Court did not agree with the conclusion of the Yelets City Court on the legality of applying this disciplinary sanction to M., taking into account the reason why M. was negotiating. Her young daughter was at home and M. was worried about her health and safety.

The reason for the dismissal was the fact that on 2 July 2002 M. left her workplace. The case materials established that this happened due to the need to take medicine in the first-aid kit. The Yelets City Court considered the plaintiff's actions as a disciplinary offense due to the fact that she did not inform anyone of her intention to leave her post for a short time. The cassation instance agreed with the assessment of the plaintiff's behavior established by the court of first instance, but due to the insignificance of the misconduct, it recognized it as inappropriate to apply a disciplinary sanction to her in the form of dismissal under paragraph 5 of Art. 81 of the Labor Code of the Russian Federation.

The panel of judges came to the conclusion that M.'s actions can formally be considered as disciplinary offenses, but due to their insignificance, the employer has no grounds for bringing M. to disciplinary action in the form of dismissal. The above example shows that when considering a labor dispute, the court took into account the gravity of the misconduct committed and the circumstances under which it was committed.

10.5.6. Disputes about dismissal in the event of a single gross violation by the employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation)

A single gross violation of labor duties by an employee (regardless of the subject composition) is an offense, the qualifying signs of which are the severity of the offense committed and the possible onset of serious consequences.

The list of single gross violations of labor duties, for the commission of which labor legislation establishes (along with other measures specified in Article 192 of the Labor Code of the Russian Federation) the possibility of dismissal of an employee as a measure of disciplinary responsibility, is provided for in paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The list of single gross violations is exhaustive and is not subject to broad interpretation.

In contrast to the grounds for dismissal of an employee for violation of labor duties, defined in paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, which considers the presence of repeated commission to be a qualifying sign, the basis for the dismissal of an employee under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation does not contain such a sign. In this case, one offense is enough.

Clause 6, Part 1, Art. 81 of the Labor Code of the Russian Federation contains five cases of a single gross violation of labor duties. The obligation to prove the fact that an employee has committed one of these violations, giving rise to the dismissal of an employee under paragraph 6 of part 1 of Art. 81 of the Labor Code of the Russian Federation, is assigned to the employer.

As it became known from the case file, orders No. 56 and No. 47 were based on the same memorandum of the section head dated 23.05.2012. From the memorandum of the foreman foreman of the section it followed that “on May 23, 2012, the electrician Smirnov A.L. did not show up for work on time by 8 o’clock and was absent during the order”, i.e. late for work. This memorandum does not establish another disciplinary offense. The memorandum does not establish that essential fact, as far as Smirnov A.L. late for work. The plaintiff himself at the hearing explained that he was late for 3 minutes and did not write an explanatory note, seeing in the situation a far-fetched creation of a conflict by the administration. It follows from the text of Order No. 47 that it was issued on May 25, 2012.

Systematic non-fulfillment (violation) of labor duties

Labor Code, it should be borne in mind that on this basis, employees may be dismissed who, after applying one of the disciplinary measures provided for in Art. 198 of the Labor Code, again violated labor discipline. The court is obliged to investigate the employee's arguments about the correctness of the application of all disciplinary sanctions laid down by the employer as the basis for the order (instruction) on dismissal.

Evidence to refute such arguments must be presented to the court by the employer. The employer's failure to fulfill the obligation to request a written explanation from the employee and the failure to receive such an explanation is not grounds for canceling a disciplinary sanction if the fact of violation of labor discipline is confirmed by the employer with evidence submitted to the court.

Systematic non-fulfillment of labor duties

Dismissal on this basis (clause 4, article 42 of the Labor Code of the Republic of Belarus) is one of the disciplinary measures applied for committing a disciplinary offense. Therefore, termination of the employment contract on this basis will be unlawful in the absence of a specific disciplinary offense, and also if another disciplinary sanction has already been imposed for a disciplinary offense.

Dismissal is not allowed for a single violation of labor discipline. To apply this ground for termination of an employment contract, a systematic violation of labor discipline by an employee is required.

Employees who, after applying one of the disciplinary measures, again violated labor discipline are considered to be systematically violating pond discipline.

Newsletter of the magazine "personnel department"

TC is possible under the following conditions: - the presence of a guilty non-fulfillment or improper fulfillment by the employee of his labor duties; - failure to perform duties is systematic; - the employee was previously subjected to disciplinary sanctions; - the employee committed a new violation of labor discipline, for which no disciplinary sanction was applied to him (reason for dismissal). Violation of labor discipline, for which a disciplinary sanction has already been imposed on the employee, cannot be a reason for dismissal.
An employee may be dismissed under paragraph 4 of Art. 42 of the Labor Code for specific violations of labor discipline. The dismissal order cannot be limited to common characteristic behavior of an employee in an enterprise during a certain period.

Therefore, despite the employee's statement of dismissal of his own free will, he can be dismissed at the initiative of the employer for a systematic violation of labor discipline, if the violation that was the reason for dismissal actually took place and could be the basis for termination of the employment contract. It should be borne in mind that the employer has the right to apply a disciplinary sanction to the employee (incl.
dismiss him under paragraph 4 of Art. 42 of the Labor Code) and when he filed an application for termination of the employment contract on his own initiative before committing a disciplinary offense. What awaits the employer in case of violation of the procedure for dismissal under paragraph 4 of Art.

Thus, by the decision of the court, order No. 47 for LLC “E” was declared invalid, the disciplinary sanction in the form of a reprimand imposed by order No. 47 was removed from the plaintiff. Smirnov A.L. was reinstated at work as an electrician of the 4th category in LLC E from July 1, 2012. In his favor, LLC E was charged with amounts for the time of forced absenteeism, compensation for non-pecuniary damage and legal costs.

Summing up, we draw attention to the fact that dismissal for systematic non-fulfillment by an employee without good reason of the duties assigned to him by an employment contract is possible only if the employee’s non-fulfillment or improper performance of his labor duties is due to his fault, i.e. . intentionally or through negligence, as a result of his illegal actions (inaction).
The case materials established that this happened due to the need to take medicine in the first-aid kit. The district court considered the plaintiff's actions as a disciplinary offense due to the fact that she did not inform anyone of her intention to leave her post for a short time.

Attention

The cassation instance agreed with the assessment of the plaintiff's behavior established by the court of first instance, but due to the insignificance of the misconduct, it recognized it as inappropriate to apply a disciplinary sanction to her in the form of dismissal under paragraph 4 of Art. 42 TK. The Judicial Board came to general conclusion that the actions Voronova The.P.

formally can be considered as disciplinary offenses, but due to their insignificance, the employer has no reason to attract Voronova V.P. to disciplinary action in the form of dismissal.
TC); 12) whether the dismissal was made during the period of temporary disability of the employee or while on vacation; 13) other circumstances. The necessary evidence in cases of this category, which must be submitted by the defendants, are: - a copy of the order on the employment of the plaintiff (an extract from the order on employment); - a copy of the order on the dismissal of the plaintiff (extract from the order on dismissal); - a copy of the employment contract with the employee, job descriptions and other documents that allow you to determine what duties the employee performed; - copies of orders for the imposition of disciplinary sanctions; - materials on the basis of which disciplinary sanctions were imposed (memorandums, materials of internal audits, explanatory notes, acts, etc.); - documents on the duration of the employee's work experience (work book); - certificate of the average salary of the plaintiff.

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When resolving disputes about dismissal due to the employee’s systematic failure to fulfill duties without good reason, the courts recognize it as lawful only if disciplinary sanctions for misconduct preceding the dismissal were imposed in compliance with the procedure established by the legislation on disciplinary responsibility. By themselves, cases of violation of labor discipline, previously committed by the employee, to which the employer did not respond in a timely manner, in the manner prescribed by law, cannot be grounds for dismissal.

Disciplinary sanctions are imposed by the employer, as well as other authorized officials. Prior to the imposition of a penalty, the offender must be required to provide explanations in writing.

The refusal of the employee to give an explanation is not an obstacle to the imposition of a penalty.
At the same time, the plaintiff asked to remove the disciplinary sanction in the form of a reprimand, imposed by the order of the employer dated May 25, 2012 No. 47 (hereinafter - Order No. 47) after his dismissal. In support of the claim Smirnov A.L. indicated that he worked at E LLC as an electrician of the 4th category. On the basis of the order of the employer dated 06/01/2012 No. 56 (hereinafter - order No. 56), he was dismissed under paragraph 4 of Art. 42 of the Labor Code "for systematic violation of labor discipline, failure to fulfill labor duties without good reason and being late for work." However, he had not previously been brought to disciplinary liability, and order No. 47 on imposing a disciplinary sanction on him, dated May 25, 2012, appeared only on July 10, 2012 in the course of preparing a civil case for trial on his claim for reinstatement at work.

At the same time, it should be borne in mind that the refusal to continue work in connection with a change essential conditions labor is not a violation of labor discipline, but serves as a basis for terminating the employment contract, clause 5, article 35 of the Labor Code (refusal of the employee to continue working due to a change in essential working conditions); - Refusal or evasion, without good reason, of medical examination of workers in certain professions, as well as refusal of an employee to undergo special training during working hours and pass exams on safety precautions and operating rules, if this is a prerequisite for admission to work. Dismissal under paragraph 4 of Art. 42 of the Labor Code is permissible only in the case when the employee’s failure to perform or improper performance of his labor duties is due to his fault, that is, intentionally or through negligence.

Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (Article 81 of the Labor Code)

Because Art. 192 of the Labor Code considers dismissal for violation of labor discipline to be a disciplinary measure, then dismissal for repeated violation of labor duties is possible in compliance with the rules established for the imposition of disciplinary sanctions. Dismissal under paragraph 5 of Art. 81 of the Labor Code is lawful when the actions (inaction) of the employee simultaneously take place; 1) non-fulfillment or improper fulfillment of the duties imposed by the labor regulations; 2) failure to fulfill these duties for unjustified reasons, i.e. committed unlawfully intentionally or by negligence; 3) repeated culpable violation of labor duties, i.e. disciplinary offense does not take place for the first time, for which the employee was earlier (during the last

working year) a disciplinary measure was applied; 4) a specific offense before dismissal, from the moment of which more than a month has not passed.

The resolution of the Plenum of the Supreme Court of the Russian Federation No. 16 dated December 22, 1992 states (paragraph 24) that a violation of labor discipline is a failure to perform or improper performance due to the fault of an employee of the labor duties assigned to him (violation of internal labor regulations, job descriptions, regulations, administration orders, technical regulations, etc.).

Such violations, in particular, include; 8

• a) the absence of an employee without good reason at work up to four hours during the working day, his being not at his workplace, but in the premises of another or the same workshop, department, etc. on the territory of the organization without good reason, including more than four hours during the working day;
• b) the refusal of the employee without good reason to comply with the new labor standards amended in the prescribed manner;
• c) refusal or evasion, without good reason, of the medical examination of the employee, for whom it is mandatory, as well as the refusal of the employee to undergo special training during working hours and pass exams on safety and operating rules, for which this is a mandatory condition for admission to work.

Refusal to perform work that is not part of the employee's labor duties (except in cases of mandatory transfer for employees), or from performing a public assignment, as well as incorrect actions of an employee that are not related to labor duties, are not a violation of labor discipline and therefore cannot serve grounds for termination of the employment contract under paragraph 5 of Art. 81 TK.

Therefore, the dismissal will be lawful if, immediately before the dismissal, the employee committed a disciplinary offense, and earlier during the last working year, a disciplinary sanction was imposed on him for violating labor discipline and it has not been lifted.

When taking into account the penalties, their legality is checked, i.e. whether the order of their imposition was followed. A penalty imposed in violation of the established procedure is not taken into account. The deprivation of the bonus is not a disciplinary sanction, so it should be taken into account. If at least one of the four previously indicated conditions is absent, termination of the employment contract under paragraph 5 of Art. 81 of the Labor Code is considered illegal.

Dismissal is possible in compliance with the terms and procedure established by Art. 193 of the Labor Code (no later than one month from the date of discovery and no later than six months from the date of the misconduct, and based on the results of an audit or audit, financially - economic activity- not later than two years from the date of commission). These terms and procedures must be observed for all disciplinary dismissals (i.e., according to clauses 5, 6, 8, 10 and 11 of article 81 of the Labor Code). At the same time, only the time of the employee's illness or being on vacation is not counted in the monthly period for the application of a disciplinary sanction in the form of dismissal. In other cases, absence from work does not interrupt the course of the specified period. As previously indicated, for this dismissal, the employer must request the opinion of the trade union body on dismissal (Article 373 of the Labor Code).

Termination of an employment contract at the initiative of the employer can be carried out if there is guilt in the actions of the employee

Termination of an employment contract due to repeated non-fulfillment by an employee, without good reason, of labor duties, if he has a disciplinary sanction, is regulated by paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The question arises about the number of disciplinary sanctions necessary for the legality of the application of paragraph 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation. The Labor Code of the Russian Federation does not give a sufficiently complete answer to the question of the number of disciplinary sanctions necessary for the legality of the application of clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation.

According to the instructions of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 63 of December 28, 2006, “when resolving disputes of persons dismissed under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation for repeated non-fulfillment of labor duties without good reason, it should be borne in mind that the employer has the right to terminate the employment contract on these grounds, provided that a disciplinary sanction was previously applied to the employee and at the time of repeated non-fulfillment by him, without good reason, it was not removed and not repaid. Resolution of the Plenum of the Supreme Court Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The procedure for applying disciplinary sanctions is determined by Art. 193 of the Labor Code of the Russian Federation, which states: before applying a disciplinary sanction, an explanation in writing must be requested from the employee. If, after two working days, an explanation is not provided by the employee, an act is drawn up.

The employee's failure to provide an explanation is not an obstacle to the application of a disciplinary sanction.

When using the above grounds for dismissal, the defendant is under an obligation to provide evidence showing that:

1) The violation committed by the employee, which was the reason for the dismissal, actually took place and could be the basis for terminating the employment contract.

2) The employer complied with the deadlines for the application of a disciplinary sanction, provided for in parts three and four of Article 193 of the Labor Code of the Russian Federation. Gaidukova L.N. Commentary on changes to the Labor Code of the Russian Federation - M .: Grossmedia, 2007. P. 218.

It should be borne in mind that:

1. The one-month period for imposing a disciplinary sanction must be calculated from the day the misconduct was discovered.

2. The day when the misdemeanor is discovered, from which the expiration of the monthly period begins, is considered the day when the person to whom the employee is subordinate at work (service) became aware of the misconduct, regardless of whether it is vested with the right to impose disciplinary sanctions.

3. The monthly period for the application of a disciplinary sanction does not include the time of illness of the employee, his stay on vacation, as well as the time required to comply with the procedure for taking into account the opinion of the representative body of employees (part 3 of article 193 of the Labor Code of the Russian Federation), the absence of the employee at the workplace due to other grounds, including in connection with the use of rest days (days off), regardless of their duration (for example, with a rotational method of organizing work), does not interrupt the course of the specified period.

4. Vacation interrupting the course of a month should include all holidays provided by the employer in accordance with applicable law, including annual (basic and additional) holidays, holidays in connection with studying at educational institutions, holidays without pay.

The employer should justify the legality and validity of previously imposed penalties. At the same time, the timing of the application of a disciplinary sanction does not matter, since, after dismissal under clause 5 of part 1 of Art. 81 of the Labor Code of the Russian Federation, it becomes the main part of a new disciplinary offense, which, in general, can be appealed in the manner prescribed by law. The legality and validity of a disciplinary sanction previously imposed on an employee is not checked only when there is a court decision that has entered into force on the legality of this sanction.

Often, after bringing an employee to disciplinary responsibility, having written a statement "about dismissal of his own free will", the employee continues not to fulfill or violate his labor duties or the internal labor regulations of the organization. In these cases, the employer has the right to apply a disciplinary sanction to the employee, since labor Relations, in this case, cease only after the expiration of the notice of dismissal. Decree of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

The definition of a disciplinary offense is given in Article 192 of the Labor Code of the Russian Federation, which states that a disciplinary offense is a failure to perform or improper performance by an employee through his fault of the labor duties assigned to him.

Judicial practice details the definition of "disciplinary sanction". The Decree of the Plenum of the Supreme Court of the Russian Federation No. 63 dated December 28, 2006 states (p. 35) that “an employee’s failure to perform, without good reason, labor duties is a failure to perform or improper performance, through the fault of the employee, of the labor duties assigned to him (violation legal requirements, obligations under an employment contract, internal labor regulations, job descriptions, regulations, orders of the employer, technical rules, etc.).

Such violations include, in particular:

1. The absence of an employee, without good reason, at work or at the workplace. Thus, in an employment contract concluded with an employee, or in a local regulatory act of the employer (order, schedule), the specific workplace of this employee must be specified. If this is not done, then it should be assumed that, according to Art. 220 of the Labor Code of the Russian Federation, the workplace is the place where the employee must be or where he needs to arrive in connection with his work and which is directly or indirectly under the control of the employer.

2. Refusal or evasion, without good reason, of a medical examination of workers in certain professions, as well as the refusal of an employee to undergo special training during working hours and pass exams on labor protection, safety precautions and operating rules, whether this is a mandatory condition for admission to work. Decree of the Plenum of the Supreme Court of the Russian Federation No. 63-FZ of December 28, 2006 “On introducing amendments and additions to the Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation No. 3. 2007.

A.N. Keil proposes the following definition of a labor offense: "Guilty, unlawful act of the subject of an employment relationship, which consists in the failure to perform or improper performance of the obligations of the subject in a labor offense, for the commission of which he can or should be held legally liable with the application of sanctions contained in labor law" . Kyle A.N. New order and conditions for imposing disciplinary sanctions // Labor Law. No. 2. 2007. S. 14-22.

As seen from this definition, not any non-performance will be a disciplinary offense. As a mandatory sign of a misconduct, article 192 of the Labor Code of the Russian Federation indicates the presence of the employee's fault.

The Labor Code does not speak about the form of guilt, nor about the types necessary to bring an employee to disciplinary responsibility, therefore, any form of guilt is sufficient to impose a penalty (including dismissal).

In addition to guilt, there are a number of points that an employer should be guided by in order to recognize the committed act as a disciplinary offense. Thus, the refusal of an employee to perform work in the event of a danger to his life and health or from performing heavy work not provided for by the employment contract or work with harmful or hazardous conditions work, does not entail disciplinary liability. It is impossible to dismiss striking workers, as well as for refusing to be recalled from vacation, etc.

To apply a disciplinary sanction from an employee, a written explanation must be requested in order to identify all the circumstances of the misconduct committed, as well as the degree of employee's guilt in it. In an explanation, it is advisable to get an answer to the questions:

Was there a violation?

What is the fault of the violation;

The circumstances of the violation, its causes;

The attitude of the employee to the violation;

The attitude of the employee to further work.

Since dismissal is an extreme measure, the court, in the event that there are all formal grounds for dismissal, may decide to reinstate the person at work, if the violation committed by the employee is not so serious as to recognize leaving him at work incompatible with the interests of production. Kyle A.N. New procedure and conditions for imposing disciplinary sanctions // Labor Law. No. 2. 2007. S. 14-22.

The current legislation provides that for certain categories of employees a special procedure for bringing to disciplinary liability is established.

Thus, there are two types of disciplinary responsibility: general, provided for by the Labor Code of the Russian Federation, and special, which employees bear in accordance with federal laws, charters and regulations on discipline.

Acts on special disciplinary liability may also provide for more severe penalties than those provided for in Article 192 of the Labor Code of the Russian Federation, as well as a special procedure for imposing them, which differs from those that employees bear with general disciplinary liability, although the measures listed in article 192 of the Labor Code of the Russian Federation.

Refusal to continue work due to a change in the terms of the employment contract determined by the parties (in this case, it can be terminated under paragraph 7 of Article 77 of the Labor Code of the Russian Federation), the employee’s refusal to comply with the employer’s order to go to work before the end of the holiday.

Consider a case from judicial practice.

S. appealed to the Zhiguli City Court with a lawsuit against the MSU stadium "K" for reinstatement in part-time work, provision of conditions for safe and efficient work, recovery of earnings for the period of forced absenteeism, compensation for non-pecuniary damage.

S. in the period from June 11, 2010 was in an employment relationship on the terms external combination with the municipal sports institution of Zhigulevsk "K" as an instructor methodologist. By order dated December 30, 2010, she was dismissed from her position on December 31, 2009 on the basis of paragraph 5 of Article 81 of the Labor Code of the Russian Federation for repeated failure by the employee to fulfill labor duties without good reason.

S. stated that she had been illegally and unfairly dismissed at the initiative of her employer. She did not violate the terms of the employment contract, while the defendant provided her with a period of time for work that she cannot combine with her main job.

The plaintiff testified that her main work schedule is from 08.00 to 17.00. She is fond of sports - weightlifting, is a European champion among veterans, constantly expressed to the chairman of the sports committee of the city administration about. Zhigulevsk desire to work. In the summer of 2010, the city administration allocated the rates of sports instructors to the defendant to conduct free classes with the population. S. confirmed that at the organizational meeting, the chairman of the sports committee brought to the attention of all those accepted that there should be at least 15 people in the group, while age does not matter. This requirement was not reflected in the documents. The mode of her work was established by the employment contract - 9 hours a week. Initially, she was given to conduct classes with those who wished gym"A" in the period from 17 to 20 hours three times a week. She compiled the schedule of these classes herself and brought it to the attention of the chairman of the sports committee. In fact, her place of work was MUP "A". In September 2010, S. scored very large group, having invested their funds, placed advertisements about training. In mid-September, the director of Municipal Unitary Enterprise "A" issued an order to change the working hours, since the gym began to be provided on a paid basis at the previously occupied time. She was given a period from 14:00 to 17:00, while the employer did not make any changes to the documents relating to her labor activity. Her work was checked by her employer. As a result of inspections, violations were revealed, about which acts were drawn up. On October 30, 2010, S. explained her absence from the workplace by the fact that she finished the training session 15 minutes earlier due to poor health. She also believes that class hours should be counted as academic hours (45 minutes each), so she does not agree that she committed a disciplinary offense. On November 03, 2010, as a result of an inspection by the commission, an insufficient number of students in the group was established. S. S. confirmed that there were 5 people involved, but she believes that this was not her fault. Since the training time was shifted by the employer, she was forced to take time off from her main job at her own expense. Due to the lack of paper, S. could not print the lesson record. Keeping a lesson record, according to her, is not assigned to her by any document. Its pupils are teenagers aged 14-15, who finish their studies at 15.00, so after the change in the time of training, the number of students has sharply decreased. She worked to get the kids involved. Admitted that her job description stated that she should control the quantitative composition. However, she understands this in such a way that she must mark the persons attending training in the journal. She did not sign it because there was no pen. I do not agree with all the disciplinary sanctions imposed on her. I do not agree with the wording of the dismissal. The employer, in her opinion, should have set a convenient time for her classes, to provide assistance. The equipment that it requires must comply with the requirements and GOSTs, must be manufactured in factory conditions. She had to bring some equipment from home. The employer had to provide her with stationery: paper and pens.

At the court session, after a question from the presiding judge, the plaintiff refused to continue working with the defendant on the proposed conditions - three times a week from 14 to 17 hours, insisted that the defendant provide her with a work time convenient for her: from 18 to 21 hours.

After examining the evidence presented, the court did not find grounds for the full satisfaction of the claim.

In accordance with the protocol No. 2 dated 08.06.2010 general meeting community trainers in the committee for physical education and sports of the administration of the city of Zhigulevsk, where the plaintiff was also present, issues were discussed, including the acceptance of public instructors on the following conditions: the presence of at least 15 students in the group; hourly workload of at least 9 academic hours per week - by 0.5 rates. In addition, each instructor-methodologist must provide a monthly package upon receipt of salary reporting documentation, which includes: a schedule of classes per week, the main list of students with personal data of students, a log of lesson recording of classes.

The circumstances of the employment relationship stated by the parties are confirmed by the order for the admission and dismissal of the plaintiff.

In accordance with the employment contract concluded by MSU "K" with the plaintiff, she was accepted part-time as a sports instructor-methodologist with a working hours: part-time working week 9 hours a week. The place of work is not specified in the contract.

The job description of the instructor-methodologist in sports, approved by the director of the ISU "K" on 05/01/2010, confirms that the duties of the instructor-methodologist include monitoring the quantitative composition of the sections, observing labor discipline, planning their work, compiling reporting documentation.

In accordance with the letter of the director of MUP "A" dated 07.09.2010. head of the committee on physical culture and sports of the department of social. development of the administration of the city of Zhigulevsk, in connection with the beginning of the autumn season and the involvement of those involved on a paid basis from 12.09.2010. time for weightlifting classes from 18.00 to 21.00 is not provided free of charge. S. has the opportunity to train in the gym "A" at a different time convenient for her.

From a written message to the plaintiff of the deputy mayor of the city of Zhigulevsk - head of department social development dated September 29, 2009, it follows that she was given time to study at weekdays from 14.00 to 17.00, Saturday from 09.00 to 12.00 in room "A" free of charge.

Thus, the plaintiff, according to the court, was notified of the change in the conditions of her working hours, which she does not deny.

In the future, at the initiative of the local government, checks were carried out on the activities of both the plaintiff and other instructors, based on the results of which acts were drawn up on the violations found, the plaintiff was brought to disciplinary responsibility. In total, three disciplinary sanctions were applied to her by orders of the defendant. These orders were not recognized as illegal by anyone, the plaintiff is not appealed, based on the results of consideration of the prosecutor's protest against one of the orders, the defendant - the employer changed the type of disciplinary punishment,

So, by order No. 64 of 02.11.2010, the plaintiff announced a disciplinary sanction in the form of a warning on the basis of inspection acts of 29.10.2010, 30.10.2010 for absence without good reason at the workplace.

By order No. 64/1 dated 05.11.2010, the director of MSU "K" on disciplinary action, the plaintiff was reprimanded on the basis of an inspection report dated 02.11.2010, from which it follows that at 15.20 5 people attended the training session with the plaintiff, time as the payroll of the section - 36 people; there is no lesson recording of classes for September, it is recommended to carry out active work to attract students to classes more involved (minimum 15 people).

By order No. 70 dated December 21, 2010, the director of MSU "K" on the basis of an act dated December 8, 2009, which established that at the time of the check at 15.00 o'clock the plaintiff's classes were attended by 3 people with a payroll of 20 people, of required documents there is no detailed record of classes, there is no data from the place of study or work in the list of those involved, there are no personal signatures in the detailed record of classes for August and October, the plaintiff was issued a disciplinary sanction in the form of a severe reprimand.

Any violations in the imposition of these disciplinary sanctions, the court did not establish.

To the dispute, the court considers it necessary to apply the rules Labor Code RF.

According to Article 60.1 of the Labor Code of the Russian Federation, an employee has the right to conclude employment contracts on the performance of other regular paid work with another employer (external part-time work) in his spare time from his main job.

Article 2 of the Labor Code of the Russian Federation establishes that the basic principles legal regulation labor relations and other relations directly related to them, the following are recognized: freedom of labor, including the right to work, which everyone freely chooses or freely agrees to.

At the same time, Article 15 of the Labor Code of the Russian Federation determines that labor relations are relations based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment (work according to the position in accordance with staffing, professions, specialties indicating qualifications; a specific type of work entrusted to the employee, subordination of the employee to the rules of internal labor regulations when the employer ensures the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract.

This norm corresponds to Article 56 of the Labor Code of the Russian Federation, according to which an employment contract is an agreement between an employer and an employee, in accordance with which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing norms labor law, the collective agreement, agreements, local regulations and this agreement, to pay the employee timely and in full wages, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer.

Article 21 of the Labor Code of the Russian Federation establishes the right of an employee to provide him with work stipulated by an employment contract; meanwhile, the same norm imposes on the employee the duty to conscientiously fulfill his labor duties assigned to him by the employment contract; observe the rules of internal labor regulations; observe labor discipline; comply with established labor standards.

Article 57 of the Labor Code of the Russian Federation establishes that the conditions on the place of work, labor function, working hours and rest time (if for a given employee it differs from general rules operating for this employer). However, if at the conclusion of the employment contract it did not include any information and (or) conditions from among those provided for in this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it.

By virtue of Article 67 of the Labor Code of the Russian Federation, an employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative.

According to Article 72 of the Labor Code of the Russian Federation, changing the terms of the employment contract determined by the parties is allowed only by agreement of the parties to the employment contract, which is concluded in writing.

Consequently, the emergence of labor relations is based on the employee's consent to personally perform a specific type of work entrusted to him, the employee's subordination to the internal labor regulations, and compliance with the working hours offered to him by the employer. Consequently, the current legislation does not provide for the right of the employee to demand from the employer the establishment of personally suitable working conditions for him, the working hours.

From the foregoing, and also, taking into account the position of the plaintiff, her categorical refusal to continue working on the conditions offered by the employer, the court sees that the plaintiff, after changing the terms of the employment contract determined by the parties, refused to continue working, which, by virtue of paragraph 7 of part 1 Article 77 of the Labor Code of the Russian Federation is the basis for termination of the employment contract.

In accordance with paragraph b, paragraph 35 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation”, it should be borne in mind that the refusal to continue work in connection with a change in the labor conditions determined by the parties of the contract is not a violation of labor discipline, but serves as a basis for terminating the employment contract under paragraph 7 of the first part of Article 77 of the Labor Code of the Russian Federation in compliance with the procedure provided for in Article 74 of the Code.

On the basis of Article 74 of the Labor Code of the Russian Federation, if the employer has no other job or the employee refuses the offered job, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

At the same time, on the basis of clause 61 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 2, if, when resolving a dispute on reinstatement at work, the court recognizes that the employer had grounds for terminating the employment contract, but indicated in the order the wording of the grounds and (or) reasons that was incorrect or not in accordance with the law dismissal, the court, by virtue of part five of Article 394 of the Code, is obliged to change it and indicate in the decision the reason and grounds for dismissal in strict accordance with the wording of the Code or other federal law with reference to the relevant article, part of the article, paragraph of the article of the Code or other federal law, based on the actual circumstances that served as the basis for dismissal.

For the above reasons, the court considered it possible to satisfy the claim in part, to change the wording of the dismissal “for repeated failure by the employee without good reason to fulfill labor duties” to “dismissal due to the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties under clause 7 of part 1 article 77 of the Labor Code of the Russian Federation”.

Since the employment relationship between the parties was recognized by the court as terminated on December 31, 2010, satisfaction of the requirements for providing the plaintiff with conditions for efficient and safe work, providing her with a convenient time for training - from 17.00 to 20.00, providing high-quality sports equipment, inventory, stationery and other things, compensation for material compensation for forced absenteeism from 01/11/2011 to the day the court makes a decision is not possible.

The claim for compensation for non-pecuniary damage is also not subject to satisfaction, since, as established by the court, the employer did not allow significant violations of the plaintiff's rights, while on the basis of Article 237 of the Labor Code of the Russian Federation, compensation for moral damage is allowed only if it was caused by unlawful actions (inaction) of the employer. Judgments upon dismissal of employees at the initiative of the employer//http// trudovoikodeks.ru›praktika_iniz_rd.shtml

The Labor Code of the Russian Federation provides for five options for gross violation of labor duties by an employee. For each of these grounds, any employee can be dismissed. These grounds are: 1)

absenteeism, which means absence from the workplace without good reason for more than four hours in a row during the working day; 2)

appearance at work in a state of alcoholic, narcotic or other toxic intoxication; 3)

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; 4)

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; five)

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

The dismissal of an employee on any of these grounds is possible only if he does not have good reasons justifying the violation committed. For example, you cannot fire an employee who was absent from work due to the fact that he got into a traffic accident or was unable to arrive at work on time due to an accident in the subway. At the same time, double punishment for the same offense is unacceptable: the dismissal of an employee on this basis should be the only disciplinary sanction for a misconduct committed by him. Therefore, for example, if an employee has already been reprimanded for being late for work, then his dismissal for the same offense is impossible.

Committing wrongdoing by an employee

directly serving monetary or commodity

value if these actions give rise to loss

trust on the part of the employer

On this basis, only those employees who directly serve monetary or commodity values ​​\u200b\u200bcan be dismissed.

Usually these are employees who carry full materiel.

real liability on the basis of the law or a written agreement concluded between them and the employer on full liability (cashiers, collectors, shop assistants, storekeepers, etc.). Workers who are not included in this category material values are not directly entrusted (for example, watchmen, accountants, merchandisers, controllers) or are entrusted as means of labor (for example, a car driver, a lathe operator, etc.).

It is possible to dismiss an employee on this basis if the actions committed by him: 1)

illegal (for example, cheating a customer in a store by a cashier); 2)

guilty, i.e. committed by the employee intentionally or in the absence of due care and diligence; 3)

it is precisely because of their guilt and wrongfulness that they entail a loss of confidence in the employee (in particular, dismissal is impossible on this basis, for example, for reprehensible behavior in everyday life or alcohol abuse).

It is not necessary (although possible) for an employee to perform these activities at work. For example, if an employee commits theft mobile phone in a cafe, then he can also be fired on this basis.

IN real life employers often dismiss employees for the employee's refusal to conclude a full liability agreement. However, you should be aware that such a refusal in itself is not illegal, and therefore guilty, and therefore the dismissal of an employee in this situation is illegal.

More on the topic One-time non-fulfillment by an employee without good reason of labor duties:

1. Repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction
2. Termination of an employment contract due to repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction (clause 5, part 1, article 81 of the Labor Code of the Russian Federation) 30.
3. 5.1.6. Cases on the reinstatement of persons dismissed due to repeated non-fulfillment of labor duties without good reason, if the employee had a disciplinary sanction (clause 4, part 1, article 77, clause 5, part 1, article 81 of the Labor Code of the Russian Federation)
4. 1.2.5.8. Termination of the employment contract in the event of a single gross violation by the employee of labor duties
5. Termination of the employment contract in connection with a single gross violation by the employee of labor duties (clause 6, part 1, article 81 of the Labor Code of the Russian Federation) 47.
6. 5.1.9. Cases on the reinstatement of persons dismissed in connection with a one-time gross violation labor duties, expressed in the 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, including the disclosure of personal data of another employee (clause 4, part 1, article 77, subparagraph "c" clause 6, part 1, article 81 of the Labor Code of the Russian Federation)
7. 1.2.5.7. Termination of the employment contract in the event of repeated non-fulfillment by the employee of labor duties
8. Dismissal in case of absenteeism and repeated non-performance by the employee of labor duties