If the employee was dismissed under paragraph 3 (subparagraphs “a” “and
In particular, it is unacceptableconcealment of temporaryincapacity for work at the time of his dismissal fromwork or the circumstance that he isa member of a trade union orthe head (his deputy) of the electedthe trade union collegial body of the organization,its structural divisions (not lower than shop andequated to them), not exempt from the mainwork when resolving the issue of dismissalmust be done following the proceduretaking into account the motivated opinion of the electedtrade union body of the organization oraccordingly with prior consenta higher elected trade union body.
When the court establishes the fact of abusean employee of the right, the court may refusesatisfaction of his claim for reinstatement atwork (while changing at the request of the employee,dismissed during the temporaryincapacity for work, date of dismissal), becausein this case, the employer must notbe responsible for adverse consequences,resulting from unscrupulousactions on the part of the employee.
Termination of an employment contract on the initiativeemployer (Article 81 of the Labor Code of the Russian Federation) and onparagraph 2 of Article 278 of the Labor Code of the Russian Federation. Disciplinary action
28. Circumstance of significancefor the correct resolution of claims aboutreinstatement of persons at work, an employment contract withwhich were terminated in connection with the liquidationorganization or termination of activitiesan employer – an individual (clause 1 of Article 81 of the Labor Code of the Russian Federation),the duty of proof rests withthe defendant, in particular, is a validtermination of the organization’s activities oremployer – an individual.
The basis for the dismissal of employees under paragraph 1 of Article 81 of the Code mayserve as a decision on the liquidation of a legal entity,those. the decision to terminate its activities withouttransfer of rights and obligations in the ordersuccession to others, adopted inthe procedure established by law (Article61 of the Civil Code of the Russian Federation).
If the employer was an individual,registered as an individualentrepreneur, then an employment contract withthe employee can be terminated under paragraph 1 of Article 81 of the Code, inparticular when the activity ceasesemployer – an individual on the basis of himthe decision itself, due to the recognitionhis insolvent (bankrupt) by a court decision (paragraph 2 of Article 25 of the Civil Code of the Russian Federation), inconnection with the expiration of the certificateon state registration, refusal torenewal of the license for certain typesactivities.
Under the termination of the employer’s activities -an individual who did not have the statusan individual entrepreneur shouldunderstand the actual termination of suchthe employer of their activities.
29. In accordance with partsecond article 81 of the Code, dismissal of an employee indue to downsizing or staff reductionemployees of the organization is allowed ifit is impossible to transfer an employee with his consent toother work. Based on the constitutionalthe principle of equality of all before the law and the court (part 1 of Article 19 of the ConstitutionRF), as well as taking into account the provisions of part one of Article 180 and part three of Article 73 of the Code,the employer in this case is obligedoffer the employee a job (vacantposition) in the same organization, correspondingqualifications of the employee, and in the absence of suchwork – other available in the organization vacantlower position or lower paidwork that an employee can do withtaking into account his education, qualifications, experiencework and health.
It should be borne in mind thattermination of an employment contract with an employee under paragraph 2 of Article 81 of the Codepossibly provided that he did not havepreemptive right to stay at work(Article 179 of the Labor Code of the Russian Federation) and waswarned personally and against receipt at leastthan two months about the upcoming dismissal (part two of Article 180 of the Labor Code of the Russian Federation).
30. When considering cases ofreinstatement of stateemployees dismissed during liquidationstate body, reduction of its staffor number (items 1, 2Article 81 of the Labor Code of the Russian Federation), the defendant is obliged to provecircumstances indicating that theythe procedure for dismissal according to the specifiedgrounds subject to Article 16Federal Law "On the Basicsstate service of the Russian Federation ".
In this regard, the defendant should beprovided evidence confirmingthat after the release warningthe civil servant was offeredvacancies in this stateorgan, and in their absence – at least onevacant position in another stateorgan, and he refused the offered jobeither refused to undergo retraining(retraining) in the manner prescribedlegislation of the Russian Federation andsubjects of the Russian Federation aboutpublic service.
At the same time, under the offer of a vacant positionis understood to come from an authorizedgovernment officialproposal for appointment to the statecivil service position, includingsubordinate, the responsibilities of whicha civil servant can perform withtaking into account his profession, qualifications and earlierposition held.
Evidence in cases of this category, inin particular, may be: copies of acts onappointing a civil servant topublic office publicservice and his dismissal from this position, copythe act on the liquidation of the state body orreduction of its staff (number), copyrelease warningscivil servant, copy of the act (certificate)on the offer of a vacant position, full-timethe timetable of the division of the statebody in which the civil servantheld the position, on the day of warningcivil servant about dismissal andday of dismissal, certificate of pay(remuneration) of a civil servant.
31. If the employee was dismissed under paragraph 3 (subparagraphs "a" and"b") Article 81 of the Code in connection withinadequacy of his position orthe work performed, ships must take into accountfollowing.
In case of termination of the employment contract under subparagraph "a" of paragraph 3Article 81 of the Labor Code of the Russian Federation, the employer is obliged, inparticular, provide evidence,confirming that the state of healthemployee in accordance with the medicalimprisonment hindered properfulfillment of their labor duties. Whenit should be borne in mind that if the employeeproperly fulfills its laborduties, however, it will be found that heneeds in accordance with the medicalconclusion in the provision of other workdue to the fact that the work performed by himcontraindicated or dangerous for the teamemployees or citizens served by him, by virtue of part two of Article 72 of the Codeif the employee refuses to transfer to anotheravailable work, not contraindicated for himstate of health, or absence inorganization of appropriate work of laborthe contract with the employee is terminated ataccordance with paragraph 8 of Article77 of the Code.
By virtue of subparagraph "b"paragraph 3 of Article 81 of the Code, dismissal for thisthe ground is admissible provided thatinadequacy of the employee for the position helddue to his lack of qualificationsconfirmed by attestation results,carried out in the manner prescribedfederal law or other regulatorylegal act, or in the manner enshrined inlocal regulatory act of the organization.Given this, the employer has no right to terminateemployment contract with an employee namedgrounds, if in relation to this employeeattestation was not carried out or attestationthe commission concluded that theemployee of the position held. At the same time, the conclusionsattestation commission on business qualitiesemployee are subject to assessment in conjunction withother evidence in the case.
If the employee was dismissed under item3 of Article 81 of the Code, the employer is obligedpresent evidence ofthe fact that the employee refused to transfer to anotherwork or the employer did not have the opportunity(for example, due to the lack of vacanciespositions or jobs) to transfer the employee from hisconsent to another job in the same organization.
32. Courts need to keep in mind thatdismissal under paragraph 4 of article 81Of the Code in connection with the change of ownershipproperty of the organization is permissible 1984 book by george orwell only inregarding the head of the organization, hisdeputies and chief accountant.
It should be borne in mind that terminationemployment contract on the named basispossible only in case of a change of ownershipproperty of the organization as a whole. These persons are notcan be dismissed under paragraph 4Article 81 of the Code upon amendmentsubordination (subordination) of the organization,if at the same time there was no change of ownershipproperty of the organization.
Under the change of the owner of the property of the organizationit should be understood the transfer (transfer) of rightsownership of the organization’s property fromone person to another person or other persons inparticular in the privatization of state ormunicipal property, i.e. in case of alienationproperty ownedOf the Russian Federation, subjects of the RussianFederation, municipalities, inproperty of individuals and (or) legal entities(Article 1 of the Federal Law of December 21, 2001 No.178-FZ "On the privatization of state andmunicipal property "Article 217 of the Civil Code of the Russian Federation);circulation of property inproperty of the organization, to the stateproperty (lastparagraph of clause 2 of Article 235 of the Civil Code of the Russian Federation); during transmissionstate enterprises to municipalproperty and vice versa; during transmissionfederal state enterprise inproperty of the constituent entity of the Russian Federation andvice versa.
Whereas, in accordance with paragraph 1 of Article 66 and paragraph3 article 213 of the Civil Code of the Russian Federation by the owner of the property,created with the contributions of the founders(participants) of business partnerships andsocieties, as well as produced and acquiredbusiness partnerships or companies inthe process of their activities, is society orpartnership, and the participants, by virtue of paragraph two of clause 2Articles 48 of the Civil Code of the Russian Federation have only mandatoryrights in relation to such legal entities(for example, participate in case managementpartnerships or companies, to take part indistribution of profits), changes in the compositionparticipants (shareholders) cannot servegrounds for termination of an employment contractaccording to paragraph 4 of Article 81 of the Labor Code of the Russian Federation withpersons listed in this norm, since inin this case, the owner of the propertybusiness partnership or societythe partnership itself remains orsociety and change of ownership of property is nothappens.
33. When resolving disputes between personsdismissed under paragraph 5 of Article 81Of the Code for repeated failure to comply withoutgood reasons for work duties,it should be borne in mind that the employer has the rightterminate the employment contract for thisthe basis, provided that the employee was previouslydisciplinary action was applied and at the timerepeated non-fulfillment by them without respectfulreasons for work duties, it is not removed and notrepaid.
Application to the employee of a new disciplinarypenalties, including dismissal under paragraph 5 of Article 81 of the Code,also permissible if non-performance orimproper performance due to the fault of the employeethe job duties assigned to himcontinued despite the impositiondisciplinary action.
It should be borne in mind thatthe employer has the right to apply to the employeedisciplinary action and when it is beforecommitting a misdemeanor filed an application fortermination of an employment contract on its owninitiative, since labor relations inin this case, they stop only afterthe term of the notice of dismissal.
If the court finds thatdisciplinary action imposed in violationof the law, this conclusion must be motivated indecision with reference to specific ruleslaws that are violated.
34. In cases of reinstatement at workpersons dismissed under paragraph 5Article 81 of the Code, the defendant isduty to provide evidence,indicating that:
1) the violation committed by the employee, which appearedthe reason for the dismissal, in fact, hadplace and could be the basis fortermination of an employment contract;
2) the employer has complied withforeseen in partsthe third and fourth articles 193 of the Labor Code of the Russian Federation, the deadlines fordisciplinary action.
It should be borne in mind that:
a) one month period for imposing a disciplinarypenalties must be calculated from the daydetection of misconduct;
b) on the day of the discovery of the offense, from whichstarts within a month, it is consideredthe day when the person for whom for work (service)the employee is subordinate, it became known about the commissionmisconduct, regardless of whether it is endowedthe right to impose disciplinary sanctions;
c) within a month for applicationdisciplinary action does not counttime of illness of the employee, his stay invacation, as well as the time required to complyprocedures for taking into account the opinion of the representative bodyworkers (part threeArticle 193 of the Labor Code of the Russian Federation); absence of an employee at workfor other reasons, including in connection withthe use of rest days (time off) regardlesson their duration (for example, with a rotationalmethod of work organization), does not interrupt the flowthe specified period;
d) to vacation, interrupting the course of the monthterm, all vacations should be included,provided by the employer in accordance withcurrent legislation, includingannual (main and additional) vacations,leave in connection with studies in educational institutions,unpaid leave.
35. When considering a case onreinstatement of a person dismissed under paragraph 5 of Article 81 of the Code, oron challenging a disciplinary sanctionit should be borne in mind that failure by the employeeno good reason work dutiesis non-performance or improperexecution through the fault of the employee assigned to himlabor duties (violation of the requirementslegislation, labor obligationscontract, rules of internal laborroutine, job descriptions, regulations,employer’s orders, technical rules, etc.).
Such violations include, in particular:
a) the absence of an employee without validreasons at work or workplace.
It should be borne in mind that if inan employment contract concluded with an employee,or the employer’s local normative act(order, schedule, etc.) no specificthe workplace of this employee, then in casea dispute arises as to wherethe employee is obliged to be in the performance of hisjob responsibilities, one should proceed from the fact thatthat by virtue of part six of Article209 of the Code, a workplace is a place wherethe employee must be or where to himneed to arrive in connection with his work andwhich is directly or indirectly underemployer control;
b) the refusal of the employee without good reason fromperformance of labor duties in connection withchanges in the established order of labor standards (Article 162 of the Labor Code of the Russian Federation), since by virtue ofthe labor contract the employee is obliged to fulfillthe labor function defined by this contract,comply with the rules in force in the organizationinternal labor regulations (article 56 of the Labor Code of the Russian Federation).
It should be borne in mind that refusal fromcontinuation of work in connection with the changethe essential conditions of the employment contract are notis a violation of labor discipline, andserves as the basis for the termination of laborof the agreement under clause 7 of Article 77 of the Labor CodeRF in compliance with the procedure provided for in Article 73 of the same Code;
c) refusal or evasion without good reasonfrom medical examination of employeessome professions, as well as the employee’s refusal topassing during working hours of a specialtraining and passing exams on labor protection,safety precautions and operating rules,if it is a prerequisite for admissionto work.
36. When resolving disputes arisingin connection with the application of disciplinary measurespenalties for employees who have refusedconclusion of a written agreement on fullmaterial liability for shortageproperty entrusted to employees (Article 244 of the Labor Code of the Russian Federation), in the event thatwhen he was not simultaneously imprisoned with laboragreement, it is necessary to proceed from the following.
If performing maintenance dutiesmaterial assets is the mainthe labor function of the employee, which is stipulated inhiring, and in accordance with